Wastewater and Water Quality Management Regulations

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We reported on the wastewater and water quality management regulations in August 2005 on these pages, when the regulations were nothing more than a rumor. Albeit the rumored regulations were potentially devastating. As anticipated the regulations were indeed proposed in the waning days of the leadership of the DEP by Commissioner Bradley Campbell. These regulations were every bit as damaging to the housing industry on our ability to obtain affordable housing as predicted and worse.

Commissioner Campbell reportedly received some 10,000 emails in the two weeks after his proposal and heard from many thousands more thereafter. In light of the tremendous opposition to the regulations by industry, municipal, housing and other groups in the weeks after proposal of these regulations, Governor Codey extended the existing water quality management regulations, which were set to expire, effectively quashing the water quality management proposal. However, the companion wastewater management regulations, although hanging on life support by all reports, had not been withdrawn and could have been enacted at any time without further notice to the public. Happily, the proposed wastewater management regulations have now been withdrawn.

Certainly, the housing community and residents of this state can take a breather from this assault on affordable housing, we should not be resting easy either. As noted above, the current water quality management regulations are still set to expire in May and therefore newly inaugurated Governor Jon Corzine and new DEP Commissioner Lisa Jackson will have their opportunity to put their stamp on this important area of regulation during the early days of this administration, perhaps setting the tone for the next four years.

We encourage you to stay tuned. We know we will.

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Proposed Sewer Connection Prohibition Threatens Real Estate Development

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Based upon good, albeit unconfirmed, information, we understand that the New Jersey Department of Environmental Protection ("NJDEP") has drafted and is floating possible new regulations that would prohibit all property in the State Development and Redevelopment Plan ("State Plan") located in Planning Areas 3, 4 and 5 from connecting to sanitary sewer systems, even if the property is located in a sewer service area and sewer lines were already constructed, in the ground and available for connection. This means that any development in those areas would be forced to rely upon septic systems, draining wastewater and sewerage from toilets, showers and sinks, for instance, into the soils utilizing a ground (soils) based or alternative filtration system. Indeed, with the possibility of limited or no grandfathering, approved developments could be at risk. The proposal would likely affect thousands of properties around the state. One stark example is that under the currently approved State Plan property owners with projects in several counties would almost all lose the right to connect to existing sanitary sewer systems. The number of properties that would lose the right to connect to existing sanitary sewer facilities will only increase under the State Plan currently pending review by the State Planning Commission.

Public sanitary sewer systems discharge to sewerage treatment plants as opposed to the ground. The to be proposed regulatory change would not only impact groundwater, but where sewerage treatment facilities have been built and sized anticipating additional development and connections, residents would be forced to absorb substantial additional costs arising from the elimination of intended users for these systems. These regulations would limit development in many areas, possibly even where such development was intended as part of "smart growth" that the State Plan and NJDEP have touted, but would also have negative environmental impacts. While it must be noted that the regulations have not been released by the NJDEP or seen by this author, even the limited information available suggests that such a proposal would have various adverse impacts, intended and unintended. Indeed, anyone owning or under a contract to purchase property in Planning Areas 3, 4 or 5 and located in a sewer service area, would be wise to consider the impacts of the regulations on their ability to develop and use their real estate and the likely downzoning that will result in the event such regulations are adopted by the NJDEP.

Anyone having questions about the new regulations and whether their property is located in Planning Areas 3, 4 or 5 as well as a sewer service area should contact the Real Estate or Environmental Group at Stark & Stark at (609) 895-7250.

2005 Environmental Law Forum

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On June 24, 2005, Raymond Papperman, Chair of the Firm's Environmental group, will moderate a discussion on recent developments with the Highlands Act at the 2005 Environmental Law Forum. The panel will include Tom Borden, Chief Counsel of the Highlands Council, Neil Yoskin and Bradley Campbell, New Jersey's Commissioner of Environmental Protection.

The panel will discuss the Highlands Act and the nexus between enhanced regulatory standards and the development of a regional plans.

The Forum will be held from Friday June 24 through Sunday June 26 at the Golden Inn Hotel & Resort in Avalon New Jersey.

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