The status of Sewer Service Area (“SSA”) mapping is currently up in the air and as a result, the potential for development in numerous areas in the State is also up in the air.  By way of brief background, the Water Pollution Control Act (“WPCA”) delegates the duty of Water Quality Management Planning (“WQMP”) to the New Jersey Department of Environmental Protection (“DEP”).  In July 2008, DEP adopted new rules regarding Wastewater Management Plans (“WMP”), the 20 year plans that define where sewer lines can be located based upon the amount of sewage that can be handled by wastewater treatment facilities and other such factors.  These new rules reassign responsibility for WMPs to the Counties and provide that where a WMP is not current as of 2009, the SSA there would be withdrawn.  In 2009, the implementation date was extended by Commissioner Martin’s Administrative Order to April 2011.  To date, no WMP has been formally adopted and yet, no SSA has been withdrawn nor has the implementation date been extended.  It is unclear when or how DEP will address this issue.  So, don’t be caught off guard - know where you stand now.      

The Issue

If you are a property owner or developer, you need to know whether any property that you have an interest in is inside or outside of the proposed SSA based upon the draft mapping.  If it is outside, the potential for developability will be seriously impacted if the mapping gets formally adopted by the Governor.  Therefore, action should be taken now to oppose the draft mapping.  Additionally, if your property is inside the current SSA (which will remain in effect until new mapping is formally adopted), don’t be fooled - it could, in fact, be outside the SSA on the draft mapping and if that mapping is formally adopted, your property could be left out forever.  The long and short of it? Speak now or (likely) forever hold your peace.

Requesting a Correction to the Mapping

   The first step in knowing where you stand now is determining whether your property is inside or outside of the proposed SSA based upon the draft mapping.  The draft mapping can be accessed on the internet, however, it is very difficult to interpret.  You may consider consulting an expert to assist you.  If your property is outside of the proposed SSA, you may oppose the draft mapping by submitting a Correction Request Form to DEP.  Note that the Correction Request Form requires supplemental documentation depending upon what conditions may be present on the property at issue (i.e. if the property is deemed an Environmentally Sensitive Area (“ESA”), then Applications for Wetlands Letter of Interpretation (“LOI”), Habitat Suitability Determination (“HSD”), etc. may be necessary).  ESAs are based on a geographic information system (“GIS”) and are defined as “any contiguous area of 25 acres or larger” consisting of any one or combination of four features which, importantly, include: (1) areas “mapped” as endangered or threatened (“T&E”) wildlife species habitat and (2) wetlands.  T&E and wetlands maps have a presumption of validity and as such, may be difficult to challenge.  

If your property is excluded from a SSA because it is considered an ESA based upon the presence of or the ability to support a T&E habitat, then the second step in knowing where you stand now is knowing what species take residency (or can take residency) upon your property.  You will need to consult an expert on this issue.  The designation of the property as an ESA based upon a T&E habitat may be challenged by submitting a HSD application to DEP.  The results of animal species surveys and any other information relevant to assessing the “suitability” of habitat of the site for any T&E species must be submitted in the application materials.

Exceptions and Alternatives

Certain properties that are deemed environmentally sensitive may be subject to an exception under the applicable rules.  The rules are difficult to navigate and you should consult an environmental attorney to advise you.  If getting into the SSA is not possible, an alternate method of disposal to be considered is an individual septic tank.  Be aware, however that (1) not all locations are appropriate for septic based upon the groundwater capacity for nitrates and (2) if the threshold capacity is more than 2,000 gallons per day, it would be considered a treatment plant under the rules and hence, other conditions apply.

The Courts and SSA Mapping

Recent case law demonstrates the scrutiny that objections to draft SSA mapping will be subjected to. In  In re the Matter of the Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552 (App. Div. 2011), a development corporation challenged the legality of two specific provisions of the WQMP rules:  (1) prohibiting extension of sewer service lines into ESAs; and (2) the establishment of a maximum nitrate level for septic system discharge.  The development corporation argued that these rules were tantamount to land use regulations which is outside of DEP’s authority. The court found that although the rules may have the “collateral effect” of limiting the density of development, the promulgation and enforcement of the rules is within DEP’s authority.

In Yoder v. New Jersey Department of Environmental Protection, an unpublished Appellate Division case, the revocation of a Coastal Area Facilities Review Act (“CAFRA”) permit for the construction of one single family home was upheld. In Yoder, the property at issue on Cedar Run Dock Road was subject to CAFRA as it was surrounded by wetlands, areas that comprised a wildlife refuge, and a Category One stream.  Prior to 1993, developed lots in the area had septic tanks but failures in the tanks caused the township to propose an amendment to the WMP conditioned on allowing a sewer line connection only to existing development. The DEP approved the amendments and the township applied for a CAFRA permit to construct the sewer line. In 1993, the CAFRA permit was issued.

The Yoder lot, which had only a small shed on it, was not within the 1993 CAFRA permit area.  As such, in 2004, Yoder submitted a CAFRA permit application to build a single family home. The application erroneously stated that the lot was serviced by city sewer. DEP granted the permit but then subsequently revoked it when it was learned that the city sewer statement was false.  Yoder sought to have the lot “grandfathered” into the 1993 CAFRA permit which allowed sewer connection to existing development. That was denied. Yoder then sought to amend the WMP to allow connection to the sewer line for the proposed single family home but DEP denied that application as well. Yoder appealed arguing that DEP’s decisions were arbitrary and capricious.

The court considered several issues including (1) whether DEP’s denial of Yoder’s application to allow sewer connection for the proposed single family home to the sewer line under the 1993 CAFRA permit was erroneous, since the 1993 CAFRA permit allowed a sewer line connection to “existing developments” and the Yoder lot had a shed on it; and (2) whether DEP’s denial of Yoder’s application to amend the WMP was arbitrary and capricious

The court held that the denial of the application to amend the WMP was supported since a shed would not have been deemed “existing development.” Further, a shed does not need a sewer line and the shed at issue did not ever have or need a septic tank which is the only reason why the 1993 CAFRA permit was issued in the first place.  The court also held that DEP’s denial of Yoder’s application to amend the WMP was not arbitrary and capricious in that the lot would be considered “environmentally sensitive” and as such, would not otherwise qualify for inclusion in the SSA. The court commented that allowing Yoder to tie into the sewer line would undoubtedly open the door to other development in the area which, in the cumulative, would have a negative impact on the environment.