SENATE, No. 72
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Senator CASEY
An Act concerning water supply management, and amending and supplementing P.L.1981, c.262.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 6 of P.L.1981, c.262 (C.58:1A-6) is amended to read as follows:
6. a. The department in developing the permit system established by P.L.1981, c.262 (C.58:1A-1 et al.) shall:
(1) Permit privileges previously allowed pursuant to lawful legislative or administrative action, except that the department may, after notice and public hearing, limit the exercise of these privileges to the extent currently exercised, subject to contract, or reasonably required for a demonstrated future need. All diversion permits issued by the Water Policy and Supply Council prior to August 13, 1981 shall remain in effect until modified by the department pursuant to P.L.1981, c.262 (C.58:1A-1 et al.). Persons having or claiming a right to divert more than 100,000 gallons of water per day pursuant to prior legislative or administrative action, including persons previously exempted from the requirement to obtain a permit, shall renew that right by applying for a diversion permit, or water usage certification, as the case may be, no later than February 9, 1982. Thereafter, the conditions of the new diversion permit or water usage certification shall be deemed conclusive evidence of such previously allowed privileges.
(2) Require any person diverting 100,000 or more gallons of water per day for agricultural or horticultural purposes to obtain approval of the appropriate county agricultural agent of a five-year water usage certification program. This approval shall be based on standards and procedures established by the department. This program shall include the right to construct, repair or reconstruct dams or other structures, the right to divert water for irrigation, frost protection, harvesting and other agriculturally-related purposes, and the right to measure the amount of water diverted by means of a log or other appropriate record, and shall be obtained in lieu of any permit which would otherwise be required by P.L.1981, c.262 (C.58:1A-1 et al.).
(3) Require any person diverting more than 100,000 gallons per day of any waters of the State or proposing to construct any building or structure which may require a diversion of water to obtain a diversion permit. Prior to issuing a diversion permit, the department shall afford the general public with reasonable notice of a permit application, and with the opportunity to be heard thereon at a public hearing held by the department.
b. In exercising the water supply management and planning functions authorized by P.L.1981, c.262 (C.58:1A-1 et al.), particularly in a region of the State where excessive water usage or diversion present undue stress, or wherein conditions pose a significant threat to the long-term integrity of a water supply source, including a diminution of surface water supply due to excess groundwater diversion, the commissioner shall, after notice and public hearing as provided by and required pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), designate that region as an area of critical water supply concern.
In designating an area of critical water supply concern, the department shall be required to demonstrate that the specific area is stressed to a degree which jeopardizes the integrity and viability of the water supply source or poses a threat to the public health, safety, or welfare. This designation shall conform to and satisfy the criteria of an area of critical water supply concern as defined in rules and regulations adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
Those specific areas previously designated by the department as water supply critical and margin areas, considered as Depleted or Threatened Zones, respectively, prior to the effective date of P.L.1993, c.202 shall be considered to be areas of critical water supply concern for the purposes of P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.).
In designating an area of critical water supply concern, the department shall be required to provide for one or more State funding sources to be utilized in financing the capital costs of implementing adopted water supply management alternatives within that specific area.
c. In designated areas of critical water supply concern, the department, in consultation with affected permittees and local governing bodies and after notice and public hearing, shall:
(1) study water supply availability;
(2) estimate future water supply needs;
(3) identify appropriate and reasonable alternative water supply management strategies;
(4) select and adopt appropriate water supply alternatives; [and]
(5) identify one or more State funding sources to be utilized in financing the capital costs of implementing adopted water supply management alternatives; and
(6) require affected permittees to prepare water supply plans consistent with the adopted water supply management alternatives.
d. Following implementation of the adopted water supply management alternatives, the department shall monitor water levels and water quality within the designated area of critical water supply concern to determine the effectiveness of the alternative water supply management strategies selected. If the department determines that the alternatives selected are not effective in protecting the water supply source of concern, the department may revise the designation and impose further restrictions in accordance with the procedures set forth in this section. The results of all monitoring conducted pursuant to this section shall be reported to all affected permittees on an annual basis.
e. Nothing in P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.) shall prevent the department from including, or require the department to include, the presently non-utilized existing privileges in any new, modified or future diversion permit issued to the present holder of these privileges, except as otherwise expressly provided in subsection b. of section 7 of P.L.1981, c.262 (C.58:1A-7).
(cf: P.L.1993, c.202, s.1)
2. Section 9 of P.L.1981, c.262 (C.58:1A-9) is amended to read as follows:
9. a. The Board of [Regulatory Commissioners] Public Utilities shall fix just and reasonable rates for any public water supply system subject to its jurisdiction, as may be necessary for that system to comply with an order issued by the department or the terms and conditions of a permit issued pursuant to P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.).
b. In any rate case pending before or on appeal from the Board of Public Utilities as of the effective date of P.L.1995, c. (C. )(pending in the Legislature as this bill), which provides for the inclusion in the rates of a public water supply system the capital costs of implementing adopted water supply management alternatives in an area of critical water supply concern designated by the Department of Environmental Protection pursuant to section 6 of P.L.1981, c.262 (C.58:1A-6), the board shall not approve a rate increase to recover the capital costs of implementing adopted water supply alternatives extending over a time period less than the average useful life of the water supply facilities developed pursuant thereto, or 30 years, whichever is greater.
c. Any rate case providing for the inclusion in the rates of a public water supply system the capital costs of implementing adopted water supply management alternatives in an area of critical water supply concern designated by the Department of Environmental Protection pursuant to section 6 of P.L.1981, c.262 (C.58:1A-6), which is on appeal for review by the Superior Court, Appellate Division, pursuant to R.S.48:2-46 as of the effective date of P.L.1995, c. (C. ) (pending in the Legislature as this bill), shall be remanded by the court for reconsideration by the board based upon the standards set forth in subsection b. of this section and the provisions of section 6 of P.L.1981, c.262 (C.58:1A-6).
(cf: P.L.1993, c.202, s.8)
3. Section 13 of P.L.1981, c.262 (C.58:1A-13) is amended to read as follows:
13. a. [Within 180 days of the effective date of this act] No later than February 9, 1982, the department shall prepare and adopt the New Jersey Statewide Water Supply Plan, which plan shall be revised and updated at least once every 5 years.
b. The plan shall include, but need not be limited to, the following:
(1) An identification of existing Statewide and regional ground and surface water supply sources, both interstate and intrastate, and the current usage thereof;
(2) Projections of Statewide and regional water supply demands for the duration of the plan;
(3) Recommendations for improvements to existing State water supply facilities, the construction of additional State water supply facilities, and for the interconnection or consolidation of existing water supply systems; [and]
(4) An identification of one or more State funding sources to be utilized in financing the capital costs of implementing adopted water supply management alternatives within a designated area of critical water supply concern; and
(5) Recommendations for legislative and administrative actions to provide for the maintenance and protection of watershed areas.
c. Prior to adopting the plan, the department shall:
(1) Prepare and make available to all interested persons a proposed plan;
(2) Conduct public meetings in the several geographic areas of the State on the proposed plan; and
(3) Consider the comments made at these meetings, make any revisions to the proposed plan as it deems necessary, and adopt the plan.
(cf: P.L.1981, c.262, s.13)
4. (New section) The Department of Environmental Protection shall identify and provide for one or more State funding sources to be utilized in financing the capital costs of implementing adopted water supply management alternatives in a designated area of critical water supply concern as required by the department pursuant to section 6 of P.L.1981, c.262 (C.58:1A-6).
5. This act shall take effect immediately.
STATEMENT
This bill would require the Department of Environmental Protection to identify and provide for one or more State funding sources to be utilized in financing the capital costs of providing a replacement water supply in a designated area of critical water supply concern as mandated by the department.
Under existing law, the Commissioner of Environmental Protection is required to designate any region of the State where excessive water usage or diversion present undue stress, or wherein conditions pose a significant threat to the long-term integrity of a water supply source, including a diminution of surface water supply due to excess groundwater diversion, as an area of critical water supply concern.
In designating an area of critical water supply concern, the department is required to demonstrate that the specific area is stressed to a degree which jeopardizes the integrity and viability of the water supply source or poses a threat to the public health, safety, or welfare.
The department is also authorized to require affected water purveyors and local governing bodies to select and adopt appropriate water supply alternatives, as needed, including the implementation of capital projects providing for replacement water supplies.
This bill would provide that, in designating an area of critical water supply concern, the department would be required to provide for one or more State funding sources to be utilized in financing the capital costs of implementing adopted water supply management alternatives within that specific area.
For instance, the department has been pursuing a water supply initiative for Water Supply Critical Area II (a designated area in Burlington, Camden and Gloucester Counties) to reduce usage of underground water from the Potomac-Raritan-Magothy aquifer system by 22 percent. Yet, the Tri-County Water Supply Project, a State-mandated $168 million capital project to provide these counties with replacement water from the Delaware River, has not received any State funding.
It is the sponsor's view that since the State has a compelling public interest in ensuring an adequate supply of potable water throughout New Jersey, it is entirely proper for the State government to assume the capital costs of State-mandated replacement water supply projects such as the Tri-County Water Supply Project.
This bill would provide that whenever a public water supply system capital cost rate case (such as that filed by the New Jersey-American Water Company to recover its investment in the Tri-County Water Supply Project) is pending before or on appeal from the Board of Public Utilities, the Board could not approve a capital cost recovery rate based on a timeframe shorter than the average useful life of the water supply facilities developed under the project, or 30 years, whichever is greater. This provision is intended to ensure that affected ratepayers in areas of critical water supply concern are not subjected to unreasonable debt repayment schedules.
Whenever any such a rate case is on appeal for review by the Superior Court, Appellate Division, the bill provides that the case must be remanded by the court for reconsideration by the Board based upon these standards.
Provides for State assumption of costs of certain water supply projects in critical water supply areas.