NJDEP Proposes De Facto Sewer Ban and Significant Restrictions Affecting New Septic Systems

On October 17, 2005, proposed amendments to 10 of New Jersey’s 12 area wide water quality management plans were published by NJDEP. The effects of those amendments, if adopted, would be to eliminate for the foreseeable future new sewer connections to 180 sewer service areas located throughout the state in Planning Areas 3, 4 and 5.

The amendments, if adopted, would also severely limit installation of new septic systems by requiring projects to aggregate discharges. Currently, residential septic system discharges are treated individually and therefore the overwhelming majority fall below the 2,000 gpd limit. Under the proposed amendments, projects must add together the proposed discharge for each lot, and, if that total exceeds 2,000 gpd, the septic facilities would not be permitted unless an amendment to the Wastewater Management Quality Plan was approved.

The following is a brief summary of the proposed amendments:

A. 37 N.J.R. 4071- Withdrawal and Resdesignation of Wastewater Service Area Designations out of Compliance with WQM Planning Rules

Effective upon the adoption of this proposed amendment, all sewer service area designations, including service areas designated for “Wastewater Facilities with Planning Flows of Less Than 20,000 Gallons Per Day Which Discharge to Ground Water”, in Planning Areas 3 (Fringe), 4 (Rural) and 5 (Environmentally Sensitive) which have not adopted Wastewater Management Plans (“WMPs”) that are currently in accordance with the schedule established at N.J.A.C. 7:15-5.23 will be withdrawn, except where sewers are physically installed and wastewater generating structures are currently and lawfully connected to the collection and treatment system. There are a few limited exceptions to this de facto sewer ban set forth in the amendment.

According to NJDEP, only 13 of the potentially affected 193 WMPs have been adopted and updated as required. The amendment therefore proposes to withdraw sewer service designations in the 180 allegedly non-complying areas regardless of whether there is capacity and irrespective of local zoning.

Because this proposal is technically not a new “regulation,” the ordinary process to adopt regulations is not being followed. Thus, among other things, no fiscal impact analysis is required of this proposal that will clearly have multiple and varied economic and other impacts.

B. 37 N.J.R. 4069- Revocation of Wastewater Service Area Designations (Septic Systems)

The purpose of this regulation is to “revoke all wastewater service area designations where the wastewater service is to be provided by individual subsurface disposal systems, commonly referred to as septic systems.” The Department proposes to redesignate these areas as “Service Area for Water Facilities with Planning Flows of less than 2,000 gallons per day which discharge to ground water.”

In order to determine which facilities are consistent with the less than 2,000 gpd wastewater service area designation, NJDEP is proposing to judge each project on a cumulative basis, “so that any project that has a total wastewater design capacity of 2,000 gpd or more, whether proposing single or multiple wastewater discharges, will be inconsistent with the less than 2,000 gpd wastewater service area designation and will require the adoption of an amendment or revision to the areawide Wastewater Quality Management Plan (“WQMP”) before permits for that project can be issued by the Department.”

Part of the purported reasoning behind this amendment is that the standards for septic systems “do not consider the cumulative effect of these discharges on ground water quality and they do not consider the effect of the development they serve on nonpoint source pollution loading, water supply sustainability and sensitive environmental resources.”

NJDEP asserts that the proposed amendment will have a variety of effects depending on the design of the planned project. An example given by the Department in the proposal is as follows: If there are 40 discharges of 350 gpd each in a project, with a cumulative discharge of 14,000 gpd, the project would currently be consistent with the less than 2,000 gpd wastewater discharge designation and no further review of the environmental impacts would be necessary. However, after the proposed amendment, said project would be inconsistent with the areawide WQMP and a modification would be required before permits could be issued. It should be noted that many residential subdivisions with as few as two (2) proposed new houses could exceed the new 2,000 gpd cumulative threshold.

NJDEP states the decision to modify the areawide WQMP will be based on an overall evaluation of the discharges from the project and their impact on the environment. As with the proposed sewer amendments, there are certain limited exceptions to this proposal as well.

Public Comment

There will be three (3) public hearings on November 17th, November 27th and November 30, 2005, regarding these proposed amendments. They will take place in Morris Township, Mansfield Township and Galloway Township, respectively.

Additionally, public comments may be submitted until December 15, 2005. It should be noted, however, that because these amendments are not formal rule proposals, the Department is not required to respond to any questions or comments.

Clearly, the proposed amendments, if adopted, will have widespread and significant impacts on utility authorities, municipalities, developers and property owners.