On the last day of the legislative session both the Assembly and Senate passed and sent to Governor Christie a bill extending the 2012 Water Quality Planning Act.   The 2012 law was enacted to avoid the withdrawal of sewer service areas and to require that DEP resume the review and approval of applications for site specific amendments to water quality management plans (WQMP), which allow development projects to be added to a sewer service area.  The 2012 law automatically expires on January 17, 2014, and while the counties and DEP have adopted new sewer service areas in response to the 2012 law, other components of the WQMP planning process have not yet been completed, raising the specter that sewer service areas will be withdrawn and the site specific WQMP amendment process halted if the extension is not signed by the Governor.

This issue dates back to rules DEP adopted during the Corzine administration in order to pressure counties to adopt or update wastewater management plans.  The rules call for DEP to withdraw wastewater service area designations in counties that did not submit new or updated wastewater management plans to DEP by April 7, 2009.  This deadline was subsequently extended until April 7, 2010.  Where these deadlines were not met, the rules provide that sewer service area designations would be withdrawn in areas where sewers are not already in the ground, except in limited situations such as infill development where sewer lines are in place, projects for which sewer permits have been issued, or for site specific amendments less than six years old.  Withdrawal of sewer service areas would have catastrophic consequences by precluding much new development, including development in many areas long planned for growth and that meet all environmental criteria.  While DEP had delayed withdrawing sewer service areas, DEP did implement a companion rule back in 2009 and stopped the review and approval of new applications for site specific plan amendments.

The 2012 law precluded withdrawal of sewer service area designations for at least 180 days while counties prepared new or updated wastewater management plans.  Moreover, counties were not required to submit complete wastewater management plans in order to avoid the withdrawal of wastewater service areas, but, rather, only the portion of a wastewater management plan designating a sewer service area.  Once the county submitted such a partial wastewater management plan, DEP was required to resume the review of applications for site specific amendments, and to act on those applications within a designated time frame.  The 2012 Water Quality Planning Act was adopted as a temporary law that expires on January 17, 2014.

Over the past two years all remaining counties submitted new or updated sewer service areas.  Most of those ewer service areas have been adopted, and DEP expects the remainder will be approved in the next few weeks.  Unfortunately, however, in the aftermath of Sandy DEP was unable to take advantage of the two-year reprieve by adopting amended WQMP regulations that would permanently fix these problems.  As a result, if the 2012 legislation is allowed to expire on January 17, 2014, the WQMP process will revert back to the old rules that call for the automatic withdrawal of the newly adopted sewer service areas and a halt to the site specific plan amendment process.

The bill now on the Governor’s desk would extend the 2012 legislation for a maximum of two more years until DEP adopts new WQMP rules that meet the purposes of the legislation.  The legislation also makes some notable clarifications to site specific plan amendment process.  Among other things:

• Site specific amendments are limited to a specific proposed development project or activity.
• Site specific amendments will not be approved for environmentally sensitive land precluded from sewer service areas under the current WQMP rules.
• The maximum wastewater flows from a site specific amendment would increase from 20,000 to 50,000 gallons per day.
• Site specific amendments for discharges to groundwater must meet the NJPDES permit standards.

Apart from the site specific amendment process, the proposed legislation also provides that land which had been in a sewer service area but was removed during the recent County wastewater management plan adoption and update process, may be restored to the sewer service area where technical data demonstrates the land satisfies environmental criteria.