On March 24, 2010, New Jersey Department of Environmental Protection (DEP) Commissioner Bob Martin signed Administrative Order (AO) No. 2010-03, temporarily delaying the draconian impact of the latest Water Quality Management Planning (WQMP) rules adopted by the DEP. (You can view the AO online here).  The WQMP rules in effect largely delegate authority for water quality management planning to the various counties and further to the municipalities in the absence of timely county action. Absent submission and DEP approval of a wastewater management plan on behalf of each county by a date certain results in suspension of any existing wastewater management plan and effectively puts a halt on nearly all development in that county. To date DEP has extended the foregoing dates on a county by county ad hoc basis, leaving developers at great risk of a moratorium during the already troubling economic times. The AO extends the deadline for submission of the wastewater management plans for all counties until April 7, 2011 and prohibits withdrawal of wastewater service area designations applicable to a particular property or the plan itself prior to that date as well, potentially giving counties, property owners and developers some breathing room by delaying (but not eliminating) the most problematic aspect of the rules. However, there is nothing in the AO’s extension that stops counties or the DEP from submitting or approving wastewater management plans sooner than April 7, 2011, despite the prohibition on withdrawal of any wastewater service area designation or plan before April 7, 2011.

As for the substance of the WQMP rules, there remains various troubling aspects. Indeed, for example, the rules and the policies being implemented under the rules will likely result in significantly reducing lands located within designated sewer service areas as well as impose onerous engineering and legal requirements on the application for and limitations on the approval and use of individual wastewater disposal (septic) systems. Given that treating wastewater (sewerage) via sanitary sewer systems is commonly accepted to be safer and more efficient than septic systems, the rules do far more to regulate and limit land use and development than to protect the environment. Also troubling is the fact that millions of dollars of land value and development rights will be lost by removing property from sewer service areas, yet this can be accomplished by the DEP and the counties without notice to the property owner or developer.

Accordingly, it is critical for land owners and developers to closely monitor wastewater management planning and advocate for inclusion in sewer service areas where appropriate in order to avoid the potential impact on development opportunities and land values.