Development in Non-sewer Areas Difficult
On March 20, 2001, new septic system regulations were put in place by the New Jersey Department of Environmental Protection. These new regulations, which were conceived through Governor Whitman’s Executive Order 109, are ostensibly aimed at preventing “sprawl.” The real effect is a virtual moratorium on certain types of development. Specifically, the new regulations govern projects which discharge in excess of 2,000 gallons of waste water per day. For a real world perspective on this limitation, 2,000 gallons per day translates to less than 6 single family homes or about 16,000 square feet of commercial space. Exceeding these limitations requires the extensive and expensive regulatory burden of developing a waste water management plan as a prerequisite to submission of a waste water discharge permit application to the DEP. Waste water management plans were previously reserved for only the largest of development projects. Effectively, the new rules all but eliminate development in non-sewer service areas.
There are some minor exceptions to the cumbersome new provisions. Applications that received site plan or subdivision approval prior to March 20, 2001 are exempt. Similarly, an approval or a complete application filed with DEP for a waste water discharge permit prior to the effective date is also an exemption.
Obviously, these exceptions are very narrow in scope, but some help may be on its way. In response to what has been perceived as clear effort to stifle development, the New Jersey Builders Association has instituted litigation in an attempt to suspend the application of the regulations. Unfortunately, the Appellate Division has already denied the stay request in all respects so the new regulations remain in effect. The Builders Association has now taken its appeal to the New Jersey Supreme Court. At publication, the results of that appeal are not yet public.
Legislation has also been introduced to repeal the septic rules both in the Senate (S-2250/Littell) and the Assembly (A-3293/De Croce/Garrett). No action has been taken on either of these bills other than referral to respective Environmental Committees of each house. We will keep you apprized of further developments as they occur.
James E. Jaworski is a Partner at WJ&L, LLP who practices primarily in Land Use, Zoning, and Real Estate areas.