When a permittee with a water allocation in the Highlands does not use the full allocation, the DEP may reduce the permitted allocation if the permittee has not taken measures to reduce demand. This type of “taking” action by the DEP should be watched, because it may be a portend of future actions by the DEP to reduce permitted emissions, discharges and other permitted activities.

In the Appellate Division case, In Re Highlands Water Protection and Planning Act Rules, N.J.A.C. 7:38-1 et seq., the DEP’s “taking” rule in the Highlands is conditioned upon the permittee using less than 80% of its allocation during the previous five years.