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In the Matter of the Adoption of N.J.A.C. 7:15-5.24(B) and N.J.A.C.

June 29, 2011

IN THE MATTER OF THE ADOPTION OF N.J.A.C. 7:15-5.24(B) AND N.J.A.C. 7:15-5.25(E)

On appeal from the adoption of N.J.A.C. 7:15-24(b) and N.J.A.C. 7:15-5.25(e) by the Department of Environmental Protection.

The opinion of the court was delivered by: Parrillo, P.J.A.D.



Argued March 22, 2011

Before Judges Parrillo, Yannotti and Roe.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

This appeal asks us to decide the legality of two provisions of the Department of Environmental Protection's (DEP) Water Quality Management Planning Rules (WQMP Rules), N.J.A.C. 7:15, which set policies and procedures for State, County and area water quality management planning. The first regulation, N.J.A.C. 7:15-5.24, prohibits the extension of sewage lines in "environmentally sensitive areas," including wetlands, riparian zones, areas with threatened or endangered species habitat (protected habitat), and areas with natural heritage priority sites (natural heritage sites). The other regulation, N.J.A.C. 7:15-5.25(e), sets a maximum nitrate level for septic system discharge. Appellant Bi-County Development Corporation challenges these provisions as constituting non-water related land use regulations and therefore ultra vires, prohibited by and inconsistent with various statutes and principles, and arbitrary and capricious. For the reasons that follow, we conclude these regulations are valid.

By way of background, the DEP's enabling statute, N.J.S.A. 13:1D-1 to -137, authorizes the agency to "formulate comprehensive policies for the conservation of the natural resources of the State [and] the promotion of environmental protection . . . ." N.J.S.A. 13:1D-9. With specific regard to water resources, the Water Quality Planning Act (WQPA), N.J.S.A. 58:11A-1 to -16, provides for the restoration and maintenance of water quality in this State, including a planning process to control and maintain water quality. N.J.S.A. 58:11A-2.

Similarly, the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -60, "provides for restoration, enhancement and maintenance of the State's waters, including ground and surface waters, and set[s] up administrative controls respecting various treatment facilities." N.J. Builders Ass'n v. Fenske, 249 N.J. Super. 60, 64 (App. Div. 1991). Together, these acts constitute the Legislature's response to the Federal Water Pollution Control Act (Federal Act), 33 U.S.C.A. §§ 1251 to 1376, which established an integrated federal system to address water pollution throughout the country. Thus, the Legislature directed the DEP to develop and implement water quality programs "in concert with other social and economic objectives," N.J.S.A. 58:11A-2a, and integrate other "Federal, State, regional and local comprehensive land use, functional and other relevant planning activities, programs and policies" into its water quality planning program. N.J.S.A. 58:11A-2b; see also N.J.S.A. 58:11A-7.

The Federal Act "requires identification of areas with substantial water quality control problems and initiation of areawide Waste Treatment Management plans." N.J. Builders Ass'n, supra, 249 N.J. Super. at 63 (referring to 33 U.S.C.A. § 1288(a), (b)). Accordingly, towards the goal of "restor[ing] and maintain[ing] the chemical, physical and biological integrity of the waters of the State[,]" N.J.S.A. 58:11A-2b, the WQPA mandates the creation of wastewater treatment management planning areas and authorizes the DEP to set water quality standards, implement areawide waste treatment management plans within each of the planning areas, and adopt rules and regulations to effectuate the objectives of the WQPA. N.J.S.A. 58:11A-5, -7 and -9; see also Toll Bros., Inc. v. N.J. Dep't of Envtl. Prot., 242 N.J. Super. 519, 526 (App. Div. 1990).

These areawide plans address, among other things, the facilities necessary to meet the municipal and industrial wastewater treatment needs of the area over a twenty year period; acquisition of land; financing; and construction priorities. N.J.S.A. 58:11A-5a. The plans also include the establishment of a regulatory program to provide control or treatment of all point and nonpoint sources of pollution to the extent practical, and to regulate the location, modification and construction of any facilities within the planning area which may result in any discharge. N.J.S.A. 58:11A-5c(1) and (2). Moreover, to address pollution associated with construction and land use activities, each areawide plan must include: (h) A process: (1) to identify construction activity related sources of pollution; and (2) to set forth procedures and methods, including land use requirements, to control to the extent feasible such sources; [and] (k) A process to control the disposal of pollutants on land or in subsurface excavations within such area to protect ground and surface water quality. [N.J.S.A. 58:11A-5.]

In accordance with the WQPA and Section 208 of the Federal Act, twelve areawide water quality management areas in New Jersey have been designated, and areawide plans exist for each one. These plans designate some areas as sewer service areas and others as areas for individual subsurface sewage disposal systems (ISSDSs). Sewer service areas use public sewers to dispose of wastewater through a collection system and interceptors to a centralized facility for treatment and ultimate discharge into surface water or groundwater. ISSDSs consist of on-site treatment systems, commonly referred to as septic systems, that discharge directly into groundwater.

All projects and activities affecting water quality must be developed and conducted in a manner consistent with the areawide plan adopted for that area. N.J.S.A. 58:11A-10. Thus, if a planned development project is located outside the designated sewer service area of an areawide plan, the project must be developed using septic systems or the areawide plan must be amended to include the project in the sewer service area.

In 1989, the DEP promulgated the WQMP Rules, N.J.A.C. 7:15-1.1 to -9.8. In general, the WQMP Rules provide for a continuing water quality planning process and wastewater management planning requirements. The rules create the procedures to establish, amend and revise areawide water quality management (WQM) plans and wastewater management plans (WMP), which are components of the areawide plan. A WMP is "a written and graphic description of existing and future wastewater-related jurisdictions, wastewater service areas, and selected environmental features and treatment works." N.J.A.C. 7:15-1.5. When a WMP is approved by the DEP, it is incorporated into the areawide WQM plan as an amendment. N.J.A.C. 7:15-5.3. Every six years, county and local planning authorities must update the WMP. N.J.A.C. 7:15-5.23(a).

On May 7, 2007, the DEP proposed to readopt and amend the WQMP Rules. Following public notice, extensive public comment, agency responses, and three public hearings, the DEP adopted the amendments on July 7, 2008. As noted, the two amendments challenged here respectively restrict the extension of public sewer lines in areas with protected habitat or natural heritage sites, N.J.A.C. 7:15-5.24(b)1 and 2, and set a two mg/L nitrate level for septic system discharge, N.J.A.C. 7:15-5.25(e).


A. OVERVIEW OF N.J.A.C. 7:15-5.24

N.J.A.C. 7:15-5.24 restricts the extension of public sewer lines in environmentally sensitive areas, which, in turn, limits the density of development that a property can sustain because it must use a septic system for waste water management. In relevant part, the regulation provides:

Delineation of sewer service areas

(a) Sewer service may only be provided to areas that are not identified as environmentally sensitive areas at (b) below, coastal planning areas listed at

(c) below, or special restricted areas at (d) below, except as provided at (e) through (h) below. Nothing in this section shall preclude the wastewater management planning agency from excluding additional areas from sewer service based on local planning objectives, the lack of wastewater treatment capacity or other environmental concerns, including, but not limited to, source water protection.

(b) Environmentally sensitive areas shall be defined based on a composite geographic information systems (GIS) analysis, as any contiguous area of 25 acres*fn1 or larger consisting of any of the following features alone or in combination:

1. Areas mapped as endangered or threatened wildlife species habitat on the Department's Landscape Maps of Habitat for Endangered, Threatened or Other Priority Species. The data are available as a download at the Department's webpage html titled "Landscape Project Data";

2. Areas mapped as Natural Heritage Priority Sites, excluding those lands within the boundaries of these sites mapped in the "Urban Lands" layer extracted from the Department's 1995/97 and 2002 Land Use/Land Cover geographical information systems database as amended and updated. Both the Natural Heritage Priority Site data and the Urban Lands data are available as a digital data download at the Department's webpage html titled "Natural Heritage Priority Sites"

[N.J.A.C. 7:15-5.24.]

Features such as land use and land cover, roads, zoning, threatened and endangered species habitat, streams and wetland coverages are all stored independently as a separate coverage or layer. The GIS system allows the user to select different coverages and layer them over each other to perform land use planning analyses.

While N.J.A.C. 7:15-5.24 established the general rule that the extension of sewer lines into environmentally sensitive areas is inappropriate, this restriction is not absolute. Subsection (e) allows an applicant the opportunity to challenge an environmentally sensitive designation:

(e) The applicant for a Water Quality Management plan amendment, including wastewater management plans, wastewater management plan updates or site specific amendments may rebut the presumption that the environmental data identified in (b) above is correct by providing the following information:

1. All of the information required at N.J.A.C. 7:15-5.26 for a habitat suitability determination that demonstrates that an area is not suitable habitat for endangered or threatened species;

2. A Letter of Interpretation issued by the Department pursuant to N.J.A.C. 7:7A-8 to demonstrate that an area is not wetlands; or

3. Any other information that demonstrates that the Department's GIS coverage is inaccurate at a particular location.

Furthermore, subsections (g) and (h) create exceptions to the exclusions stated in subsection (b):

(g) Sewer service areas may include environmentally sensitive areas listed at (b) above provided:

1. The environmentally sensitive area is included either to allow infilldevelopment, or to remove undulations in the sewer service area boundary as necessary to create a linear boundary that relates to recognizable geographic features as allowed by N.J.A.C. 7:15-5.20(b)2; and

2. The Department determines that the environmentally sensitive areas included in the sewer service area are not critical to a population of endangered or threatened species, the loss of which would decrease the likelihood of the survival or recovery of the species in the State.

(h) Sewer service areas may include environmentally sensitive areas listed at (b) above provided it is designed to accommodate center based development*fn2 and is an element of an endorsed plan approved by the State Planning Commission where:

1. The Department determines that the environmentally sensitive areas included in the sewer service area are not critical to a population of endangered or threatened species, the loss of which would decrease the likelihood of the survival or recovery of the species in the State;

2. The Department has determined that the endorsed plan adequately addresses the protection of environmentally sensitive areas located outside of the designated sewer service area; and

3. The wastewater management planning agency has identified an adequate wastewater management alternative in accordance with N.J.A.C. 7:15-5.25(a) through (c).

In the New Jersey Register, the DEP explained that the WQMP Rules prohibit the extension of sewer service lines in environmentally sensitive areas in order to conserve public resources and because those areas cannot sustain dense development due to their environmental sensitivities. 39 N.J.R. 1896 (May 21, 2007); 40 N.J.R. 4110, 4113 (July 7, 2008). The DEP explained:

The goal of the rules is not to prohibit all development in threatened and endangered species habitats. The rules intend to eliminate significant conflicts between the Department's natural resource protection mandates and the extension of centralized sewer service, consistent with the intent of the continuing planning processes required under Section 208 of the Federal Clean Water Act and reinforced through the New Jersey Water Quality Planning Act. In places where sewer service is not provided, the rules allow individual subsurface sewage disposal systems (septic systems) as an appropriate wastewater management alternative. In general, septic system development will occur at a lower density than development that would be supported by public sewers. This lower density development is more consistent with the conservation of these sensitive environmental resources. However, the real emphasis of the rules is to eliminate the ...

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