[First Reprint]

SENATE, No. 2985

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED JUNE 22, 2009

 


 

Sponsored by:

Senator PAUL A. SARLO

District 36 (Bergen, Essex and Passaic)

Senator STEVEN V. OROHO

District 24 (Sussex, Hunterdon and Morris)

 

Co-Sponsored by:

Senator Haines

 

 

 

 

SYNOPSIS

     Extends requirement of wastewater management planning agencies to establish or update wastewater management plans, and extends validity of sewer service areas and wastewater service areas, until April 7, 2012.

 

CURRENT VERSION OF TEXT

     As reported by the Senate Economic Growth Committee on December 14, 2009, with amendments.

  


An Act concerning wastewater management plans and sewer service area and wastewater service area designations 1[, creating a Wastewater Planning Oversight Board in the Department of Environmental Protection,]1 and supplementing P.L.1977, c.75 (C.58:11A-1 et seq.).

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    The Legislature finds and declares that:

     a.     On May 21, 2008, the Department of Environmental Protection readopted with amendments the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., effective July 7, 2008, which rules are developed and administered by the department as part of the continuous planning process required pursuant to Sections 208 and 303 of the federal Clean Water Act of 1977, Pub.L.95-217, 33 U.S.C. s.1251 et seq., and the “Water Quality Planning Act,” P.L.1977, c.75 (C.58:11A-1 et seq.).

     b.    These Water Quality Management Planning rules and regulations require county governments to prepare and submit to the department wastewater management plans or wastewater management plan updates by April 7, 2009, or where a municipal government assumes the responsibility from the county, by July 7, 2009.

     c.     If a county or municipal government fails to meet the applicable deadline, wastewater service areas in wastewater management plans, and sewer service areas in water quality management plans where no wastewater management plan was previously prepared, will be withdrawn.

     d.    In areas where sewer service areas or wastewater service areas are withdrawn, most development projects and activities will be deemed inconsistent with the applicable water quality management plan, which will preclude the issuance of permits or approvals for development projects and activities by the department including projects and activities where municipal, county, and State planning entities have already reviewed and accepted proposed project-specific amendments or revisions to wastewater management plans and water quality management plans.

     e.     Financing available to municipal utilities authorities and sewerage authorities is dependent upon the existence of approved sewer service areas and would be jeopardized if sewer service areas are withdrawn.

     f.     The State and the nation are engulfed in an economic recession that is drastically affecting various segments of the New
Jersey economy, and as a result of the crisis in the real estate finance sector of the economy, real estate developers and redevelopers, including homebuilders, and commercial, office and industrial developers, have experienced an industry-wide decline, including reduced demand, cancelled orders, declining sales and rentals, price reductions, increased inventory, fewer buyers who qualify to purchase homes, layoffs, and scaled back growth plans.

     g.     Financial institutions that lent money to property owners, builders, and developers are experiencing erosion of collateral and depreciation of their assets.

     h.     The construction industry and related trades are sustaining severe economic losses, and the lapsing of government development approvals due to loss of sewer service would, if not addressed, exacerbate those losses.

     i.      County and municipal governments throughout the State are suffering from the national and Statewide economic crisis and are experiencing revenue shortfalls, and given this fiscal crisis, many county and municipal governments may be unable to dedicate the financial and human resources necessary to submit a wastewater management plan or wastewater management plan update to the Department of Environmental Protection by April 7, 2009 or July 7, 2009, as the case may be.

     j.     In addition, county and municipal governments have not been provided with all of the information and data in a manner necessary to facilitate the timely submission of these plans, and as a result, large-scale, Statewide withdrawal of sewer service areas and wastewater service areas may occur.

     k.    The reconciliation of State and local data and mapping is a very time consuming and complex process that involves all levels of government.

     l.      The withdrawal of wastewater service areas on a Statewide basis would have a severe negative economic impact and would further exacerbate the current economic recession, precluding development projects and activities, which would otherwise generate jobs, act as sources of fee generating activities for sewerage authorities and other public and private utilities, and act as a source of tax and other revenues.  Such an occurrence would hamper the State’s ability to recover from the economic recession, slowing job creation and redevelopment that are normally a source of revenue, increasing the revenue shortfall in the State’s budget, and further hampering the State’s ability to provide for the general welfare needs of its residents.

     m.    Further, many areas are proposed for withdrawal from future sewer service areas, although the areas are within current sewer service areas and are based upon sound local planning decisions.  There is currently no procedure in place to notify the affected property owners, and the removal of property from current sewer service areas will diminish property values and affect local tax revenues.

     n.     It is the purpose of this act to ameliorate the procedural problems of the readopted Water Quality Management Planning rules, as evident in the ongoing implementation of these rules by the department, counties and municipalities.  However, it is not the intent of this act to affect the substantive aspects of the Water Quality Management Planning rules, or the intent or purposes of any of the underlying statutory authorities, including the Water Quality Planning Act and the federal Clean Water Act.

     o.    It is also the purpose of this act, and essential to the public good given the present unfavorable economic conditions, to defer the additional economic burden on county and municipal governments and to prevent the catastrophic economic impacts that would occur in connection with large-scale, Statewide withdrawal of wastewater service areas, by providing additional time for county and municipal governments to prepare and submit a wastewater management plan or a wastewater management update to the Department of Environmental Protection and maintaining the validity of sewer service areas and wastewater service areas during this additional time period.

 

     2.    As used in this act:

     “Department” means the Department of Environmental Protection.

     “Extension period” means the time period beginning on April 7, 2009 and ending on April 7, 1[2011] 20121.

     “Sewer service area” means the land area identified in an areawide water quality management plan from which wastewater generated is designated to flow to a domestic treatment works or industrial treatment works.

     “Wastewater management plan” means a written and graphic description of existing and future wastewater related jurisdictions, wastewater service areas, and selected environmental features and treatment works.

     “Wastewater management planning agency” means a governmental unit that has responsibility to prepare, submit, and periodically update a wastewater management plan pursuant to the department’s rules and regulations.

     “Wastewater service area” means a sewer service area, a general service area approved for wastewater facilities with planning flows of less than 20,000 gallons per day which discharge to groundwater, and a general service area for wastewater facilities with planning flows of less than 2,000 gallons per day which discharge to groundwater as designated in any wastewater management plan or water quality management plan.

     “Water quality management plan” means a plan prepared pursuant to Sections 208 and 303 of the federal Clean Water Act of 1977, Pub.L.95-217, 33U.S.C. s.1251 et seq., and the “Water Quality Planning Act,” P.L.1977, c.75 (C.58:11A-1 et seq.), and includes Statewide, areawide and county water quality management plans as defined by the Department of Environmental Protection in the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq.

 

     3.    a.  Notwithstanding any other law, or rule or regulation adopted pursuant thereto, to the contrary, the time period within which a wastewater management planning agency shall prepare and submit to the department a wastewater management plan or wastewater management plan update pursuant to the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., adopted by the department effective July 7, 2008, is extended for the duration of the extension period.

     b.    All wastewater service area designations, including all sewer service area designations in portions of areawide water quality management plans where no wastewater management plan was previously prepared, in effect at any time during the extension period shall remain in effect until such time as the applicable wastewater management planning agency adopts a new, revised, or updated wastewater management plan, as applicable, and the plan is approved by the department.

     c.     All wastewater service area designations, including all sewer service area designations in portions of areawide water quality management plans where no wastewater management plan was previously prepared, withdrawn pursuant to the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., adopted by the department effective July 7, 2008, prior to the date of enactment of this act shall be reinstated and shall be in effect during the extension period.

 

     4.    During the extension period, the department shall, within 90 days after receipt of a complete application, review and approve site specific or project specific amendments or revisions to wastewater management plans and water quality management plans submitted by or on behalf of any party, including but not limited to a county, municipality or individual landowner.  For any request pending with the department on the date of enactment of this act, the department shall complete review of the request within 90 days after the date of enactment of this act.

 

     5.    Nothing in this act shall preclude a wastewater management planning agency from preparing and submitting a wastewater management plan or a wastewater management plan update to the department during the extension period pursuant to the “Water Quality Planning Act,” P.L.1977, c.75 (C.58:11A-1 et seq.) and the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., adopted by the Department of Environmental Protection, effective July 7, 2008.

 

     6.    a.  If the department provides sewer service area mapping, data, models, or any other information to a wastewater management planning agency as the basis for, or in connection with, the update of a wastewater management plan, and the materials propose, recommend or otherwise contemplate the removal of real property from a sewer service area, the department or the applicable wastewater management planning agency shall provide written notice of the proposed removal of real property from the sewer service area to the person or entity identified on the municipal tax record as the owner of the real property.

     b.    (1) No real property may be removed from a sewer service area or wastewater service area, as applicable, approved by the department and in effect on July 7, 2008, unless the department or the applicable wastewater management planning agency provides written notice, by certified mail, return receipt requested, of the proposed removal of real property from the sewer service area or wastewater service area, as applicable, to the person or entity identified on the municipal tax record as the owner of the real property. 

     The notice provided to the property owner pursuant to this subsection shall provide detailed information specifying the reason the real property is proposed for removal from the sewer service area or wastewater service area, as applicable, including but not limited to any mapping, data, models, or other information that may have been provided by the department to the applicable wastewater management planning agency.

     (2)   Upon receipt of written notification pursuant to this subsection, the owner of the property shall have 30 days to respond to the department and the applicable wastewater management planning agency and provide information as to why the property should not be removed from the sewer service area or wastewater service area, as applicable, including any documentation regarding the current status of the property and any applicable permits. 

     (3)   If, after receipt of a response by the owner of the property, the department and the applicable wastewater management planning agency intend to pursue removal of the property from the approved sewer service area or wastewater service area, as applicable, the owner of the property may appeal the decision to the Office of Administrative Law.  Upon receipt, the Office of Administrative Law shall assign the request to an administrative law judge for a hearing.  The provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) shall apply to hearings and appeals pursuant to this section.

     (4)   If the department and the applicable wastewater management planning agency do not receive a response from the owner of the property within 30 days after the owner's receipt of the certified notice as evidenced by the return receipt, the department and the applicable wastewater management planning agency may proceed with the removal of the property from the sewer service area or wastewater service area, as applicable, in accordance with the applicable provisions of the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq.

 

     7.    a.  Notwithstanding any other law, or rule or regulation adopted pursuant thereto, to the contrary, a sewer service area shall include all property for which at least one of the following approvals were issued prior to the applicable wastewater management planning agency adopting a new, revised, or updated wastewater management plan, as appropriate, and that plan is approved by the department: 

     (1)   preliminary or final site plan approval, preliminary or final subdivision approval, municipal building or construction permit, or general development plan approval, issued pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.);

     (2)   a treatment works approval issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); or

     (3)   a New Jersey Pollutant Discharge Elimination System permit issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.). 

     b.    If a sewer service area within a new, revised or updated wastewater management plan, as appropriate, does not include property as provided in subsection a. of this section, the affected property owner or any other interested party, including but not limited to a contract purchaser for the property, may submit a written request to the wastewater management planning agency, with a copy to the department, to include the property within the sewer service area through an administrative correction.  If at least one of the approvals identified in subsection a. of this section is valid as of the date of the request, the wastewater management planning agency shall revise the sewer service area to include the property in question and shall submit a notice of administrative correction of the sewer service area to the department.  The department shall issue written approval of the corrected sewer service area no later than 30 days after receipt of the submission by the wastewater management planning agency, or the request shall be deemed automatically approved.

     c.     In addition to environmental factors, the department and the wastewater management planning agency shall consider the following factors when making a determination regarding the inclusion of property in, or the exclusion of property from, a sewer service area under any new, revised or updated wastewater management plan:

     (1)   the zoning of the property;

     (2)   the existing development and land use surrounding and in the vicinity of the property;

     (3)   the existing infrastructure and availability of utilities;

     (4)   any affordable housing obligations;

     (5)   redevelopment opportunities and objectives;

     (6)   the designation of the property pursuant to the State Development and Redevelopment Plan adopted pursuant to P.L.1985, c.398 (C.52:18A-196 et al.); and

     (7) any prior or existing development or partial development on or associated with the property.

 

     8.    During the extension period, the department shall continue to provide needed mapping, models, and staff support for the preparation and review of wastewater management plans, updates and amendments thereto.

 

     9.    During the extension period, every wastewater management planning agency shall be required to submit written reports to the department regarding the wastewater management planning agency’s progress in preparing a wastewater management plan or wastewater management plan update.

 

     10.  The department shall, within 30 days after the date of enactment of this act, place a notice in the New Jersey Register implementing the provisions of the extension period in conformance with section 3 of this act.

 

     1[11.           a.  There is established the Wastewater Planning Oversight Board in, but not of, the Department of Environmental Protection.  The board shall consist of 11 members as follows:

     (1)   the Commissioner of Environmental Protection, or a designee;

     (2)   the Smart Growth Ombudsman appointed pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3); and

     (3)   nine members of the public, who are residents of the State, to be appointed by the Governor with the advice and consent of the Senate as follows:

     (a)   two members of the New Jersey County Planners Association;

     (b)   two representatives or members of the building industry with recognized expertise and specialization in wastewater management planning issues;

     (c)   two representatives of the environmental community with recognized expertise and specialization in wastewater management planning issues;

     (d)   one representative of a municipal utilities authority or a sewerage authority located in the State; and

     (e)   two representatives of the public having no affiliation with any of the other representative members appointed pursuant to this paragraph.

     b.    The board shall evaluate, study and review the accuracy, validity, feasibility, and practicability of sewer service area mapping, data, models, or any other information provided by the department to wastewater management planning agencies as the basis for, or in connection with, the creation of a wastewater management plan, and to make recommendations to wastewater management planning agencies based on this review. 

     c.     The members of the board shall serve without compensation, but may be reimbursed for necessary expenses incurred in the performance of their duties, within the limits of funds appropriated or otherwise made available to the board for its purposes.

     d.    Any vacancy in the membership of the board shall be filled in the same manner as the original appointment.

     e.     The board shall organize as soon as possible after the appointment of its members, and shall select annually a chairperson from among its members and a secretary who need not be a member of the board.

     f.     A majority of the membership of the board shall constitute a quorum for the transaction of business.  Action may be taken by the board upon the affirmative vote of a majority of the full membership of the board.

     g.     The board shall be entitled to the assistance and service of the employees of any State, county or municipal department, board, bureau, commission, authority or agency as it may require and as may be available to it for its purposes, and to employ stenographic and clerical assistance and to incur traveling or other miscellaneous expenses as may be necessary in order to perform its duties, within the limits of funds appropriated or otherwise made available to it for its purposes.  The department shall provide primary staff support for the board.

     h.     The board shall meet monthly or at the call of the chairperson of the board or when requested by any three or more members of the board.]1

 

     111.  The State Planning Commission, established pursuant to section 2 of P.L.1985, c.398 (C.52:18A-197), shall evaluate, study and review the accuracy, validity, feasibility, and practicability of sewer service area mapping, data, models, or any other information provided by the department to wastewater management planning agencies as the basis for, or in connection with, the creation of a wastewater management plan, and shall make recommendations to wastewater management planning agencies based on this review.1

 

     12.  This act shall take effect immediately.