An Act concerning wastewater management plans and sewer service area and wastewater service area designations 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service areas in water quality management plans where no wastewater management plan was previously prepared, will be withdrawn.

d. In areas where sewer service areas or wastewater service areas are withdrawn, most development projects and activities will be deemed inconsistent with the applicable water quality management plan, which will preclude the issuance of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is dependent upon the existence of approved sewer service areas and would be jeopardized if sewer service areas are withdrawn.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, 2011.

"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, 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.), 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 act uponsite 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. Nothing in this act shall preclude the person or entity identified on the municipal tax record as the owner of real property from petitioning the department and the applicable wastewater management planning agency, in writing during the extension period, for a change to the sewer service area designation for the real property identified in the petition. A petition submitted pursuant to this section shall identify the specific parcel of real property and include any available documentation regarding the current status of the property and any applicable permits.

Notwithstanding any provision of this act, any other law, or any rule or regulation adopted pursuant thereto to the contrary, upon approval of both the department and the applicable wastewater management planning agency of a petition submitted pursuant to this section, the change to the sewer service area designation for the property identified in the petition shall take effect immediately, and shall be included in the wastewater management plan or wastewater management plan update submitted to the department pursuant to the Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq.

7. During the extension period, whenever the State, a local government unit, or a qualifying tax exempt nonprofit organization is contemplating the acquisition of a specific parcel of land for recreation and conservation purposes or farmland preservation purposes using public funds, or a landowner is contemplating the sale or other transfer of land for such purposes, the governmental entity, nonprofit organization, or landowner may request in writing of the department to decide, in consultation with the applicable wastewater management planning agency, and within 180 days after receipt of the request, whether the specific parcel of land will or will not be included in a sewer service area to be designated under a wastewater management plan or wastewater management plan update to be prepared and submitted to the department 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. If the landowner disagrees with the decision of the department, the landowner may appeal it in the same manner as provided pursuant to paragraph (3) of subsection b. of section 8 of this act.

The decision of the department, in consultation with the applicable wastewater management planning agency, pursuant to this section regarding the status of a specific parcel of land with respect to sewer service area designation shall be used to assist in the valuation of the parcel for possible preservation under open space and farmland preservation programs.

For the purposes of this section: "land," "farmland preservation purposes," "local government unit," "qualifying tax exempt nonprofit organization," and "recreation and conservation purposes" mean the same as those terms are defined respectively pursuant to section 3 of P.L.1999, c.152 (C.13:8C-3); and "landowner" means the person or entity identified on the municipal tax record as the owner of the real property.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. This act shall take effect immediately.

STATEMENT

This bill would extend for two years the requirement for wastewater management planning agencies to prepare and submit a wastewater management plan or a wastewater management update to the Department of Environmental Protection ("DEP") and would maintain during the extension period the validity of wastewater service areas and sewer service areas. The bill defines "extension period" as the time period beginning on April 7, 2009 and ending on April 7, 2011.

Under the DEP's current Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., adopted effective July 7, 2008, wastewater management planning agencies are required to submit a wastewater management plan or a wastewater management plan update to the department by April 7, 2009. This bill would extend that time period by two years, and would further provide that no sewer service area designations would be withdrawn during the extension period.

The bill would also require the DEP to act upon site specific or project specific amendments or revisions to wastewater management plans and water quality management plans within 90 days after receipt of a complete application. The bill also provides that, during the extension period, a property owner may petition the department and the applicable wastewater management planning agency for a change to the sewer service area designation for a property. Upon approval of both the department and the wastewater management planning agency, the change to the sewer service area designation would take effect immediately. In addition, the bill would establish a specific requirement for notice and public hearing whenever the department proposes to remove property from a sewer service area.

The bill also sets forth conditions for the inclusion of property within sewer service areas. Specifically, under the bill, sewer service areas shall include all parcels of land for which at least one of the following approvals were issued prior to the wastewater management planning agency adopting a new, revised, or updated wastewater management plan and that plan is approved by the department: preliminary or final site plan approval, preliminary or final subdivision approval, municipal building or construction permit, or general development plan approval pursuant to the "Municipal Land Use Law"; a treatment works approval; or a New Jersey Pollutant Discharge Elimination System permit. The legislation provides that a landowner may petition the department and the applicable wastewater management planning agency during the extension period for a change to the sewer service area designation for the real property identified in the petition. Upon approval of both the department and the applicable wastewater management planning agency, the change to the sewer service area designation would take effect immediately.

Further, the bill requires the department and wastewater management planning agencies to consider the following when making a determination regarding the inclusion of a parcel 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; and (7) any prior or existing development or partial development on or associated with the property.

The bill also provides that, during the extension period, whenever the State, a local government unit, or a qualifying tax exempt nonprofit organization is contemplating the acquisition of a specific parcel of land for recreation and conservation purposes or farmland preservation purposes using public funds, or a landowner is contemplating the sale or other transfer of land for such purposes, the governmental entity, nonprofit organization, or landowner may request in writing of the department to decide, in consultation with the applicable wastewater management planning agency whether the specific parcel of land will or will not be included in a sewer service area. This decision would have to be rendered within 180 days of the request. If the landowner disagrees with the decision of the department, the landowner may follow the appeal procedure set forth in the bill. The decision of the department, in consultation with the applicable wastewater management planning agency, would be used to assist in the valuation of the parcel for possible preservation under open space and farmland preservation programs.

The bill also requires wastewater management agencies to apprise the department of their progress during the extension period. In return, the department would remain responsible for planning support and information during the extension period.

If enacted, this bill would require notice of the extension period in the New Jersey Register.