A Royal Flush: New Jersey Senate Revokes NJ DEP Septic Tank Density Rule for Highlands Region

By Brian Fritzsche, Staff Contributor

A Royal Flush: New Jersey Senate Revokes NJ DEP Septic Tank Density Rule for Highlands Region

On January 8, 2018 the New Jersey Senate passed a resolution revoking a recent New Jersey Department of Environmental Protection (“NJ DEP”) rule that would have increased the density of septic tanks allowed in forested parts of the New Jersey Highlands Region.[1] NJ DEP’s proposal revived an ongoing debate over the legal protection of the Highlands Region.[2] Rescinding NJ DEP’s proposal was not only a rebuke of the Christie administration’s environmental pursuits, but may indicate the future trends in environmental policy and legislative action to be expected under the Murphy administration.

The New Jersey Highlands region, located in New Jersey’s northwestern region and extending to the state’s northern border, covers 17% of the state[3] and in 2011 supplied  approximately one-third of the total potable water used in New Jersey.[4] Water from the Highlands flows to 332 municipalities in 16 countries, home to 70% of the state’s population.[5] To protect this invaluable resource, the Highlands Water Protection and Planning Act (“Highlands Act”)[6] established a comprehensive, long-term approach to protecting this drinking water resource.[7] The Highlands Act requires “the identification of a preservation area of the New Jersey Highlands that would be subject to stringent water and natural resource protection standards, policies, planning, and regulation.”[8] The Act also requires the creation of a Highlands Water Protection and Planning Council that would prepare a regional master plan for the preservation area.[9] Further, the Act charges NJ DEP with adopting, “stringent standards governing major development in the Highlands preservation area.”[10] One of the standards NJ DEP is required to adopt is, “a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution.”[11]

In 2016, NJ DEP issued a rule proposal that would “result in up to 1,145 additional septic systems, or about 12 percent more individual septic systems than under the existing rule.”[12] This rule change would necessarily degrade water quality in the Highlands.[13] However, the Highlands Act provisions regarding septic system density standards have not changed since enactment, and no provisions of the Act direct DEP to modify or weaken originally adopted rules.[14] In 2017 concurrent resolutions were issued in the New Jersey Senate[15] and the New Jersey Assembly[16] to invalidate the new NJ DEP rules that would change the septic density standards for the Highlands area.

The Constitution of the State of New Jersey permits the Legislature to review any rule or regulation of an administrative agency to determine consistency with legislative intent.[17] Should the Legislature find a rule or regulation is inconsistent the agency has 30 days to amend or withdraw the proposed rule or regulation.[18] If the administrative agency fails to do so, the Legislature may invalidate the rule or regulation, in whole or in part.[19] Under this authority, both the Senate and the Assembly determined that the new NJ DEP standards failed to comply with the Highlands Act in two significant ways.

One failure to comply with the Highlands Act was the result the DEP’s reliance on nitrate data, which is an indicator for groundwater quality, from wells sampled between 2004 and 2011.[20] The Highlands Act mandate for NJ DEP to prevent degradation of water quality, or restore the water quality, implicitly uses the year of enactment as the measuring point for water quality.[21] The Highlands Act was enacted in 2004, thus the Act’s mandate is to prevent degradation or restore the quality to the 2004 water quality. By using data from 2004 to 2011 in creating the proposed standards, NJ DEP is maintaining degraded post-2004 water quality, which is contrary to the requirement of the Highlands Act.[22] Another major hurdle for NJ DEP’s rule proposal is its relation to the Highlands Regional Master Plan (RMP). The NJ DEP proposal states that NJ DEP “related” the septic system density standards to those found in the RMP,[23] but the Highlands Act requires that the RMP must be based on the NJ DEP rule.[24] In effect, the NJ DEP has put the cart before the horse in this case and failed to comply with the express language of the Highlands Act.[25]

The New Jersey Senate seems to have been unmoved by NJ DEP’s claims that the proposal would not harm water supplies and will benefit the state by creating economic growth.[26] Whether the decision of the Senate to pass SCR-163 to invalidate NJ DEP’s proposal is a sign of renewed environmental legal protections and enforcement under the Murphy administration, or a final discontented parting gift to the Christie administration, remains to be seen.

[1] Tom Johnson, Lawmakers Rap DEP, Roll Back Rule on Septic Tanks in Highlands, NJ Spotlight (Jan. 9, 2018), http://www.njspotlight.com/stories/18/01/08/lawmakers-rap-dep-roll-back-rule-on-septic-tanks-in-highlands/.

[2] See Tom Jonson, Lawmakers Ready to Revoke Rule Allowing More Development in Highlands, NJ Spotlight (Jan. 2, 2018), http://www.njspotlight.com/stories/18/01/01/lawmakers-ready-to-revoke-rule-allowing-more-development-in-highlands/.

[3] N.J. Geological & Water Survey & N.J. Dep’t of Envtl. Prot., Potable Water Supplied in 2011 by New Jersey’s Highlands 1 (2011), http://www.njgeology.org/pricelst/ofreport/ofr15-1.pdf.

[4] Id.

[5] Id.

[6] Highlands Water Protection and Planning Act, N.J. Stat. Ann. §§ 13:20-1 to 13:20-35 (West, Westlaw through L.2017).

[7] S. Con. Res. 163, 217th Leg. (N.J. 2017).

[8] N.J. Stat. Ann. §§ 13:20-2 (Westlaw).

[9] Id.

[10] Id.

[11] N.J. Stat. Ann. §§ 13:20-32(e) (Westlaw).

[12] 49 N.J. Reg. 1388(c) (June 5, 2017).

[13] S. Con. Res. 163, 217th Leg. (N.J. 2017).

[14] Id.

[15] Id.

[16] Assemb. Con. Res. 255, 217th Leg. (N.J. 2017).

[17] N.J. Const. art. V, § 4, ¶ 6.

[18] Id.

[19] Id.

[20] See S. Con. Res. 163, 217th Leg. (N.J. 2017).

[21] See N.J. Stat. Ann. §§ 13:20-32(e) (Westlaw).

[22] S. Con. Res. 163, 217th Leg. (N.J. 2017).

[23] 49 N.J. Reg. 1388(c) (June 5, 2017).

[24] S. Con. Res. 163, 217th Leg. (N.J. 2017).

[25] N.J. Stat. Ann. §§ 13:20-32 (Westlaw) (“The Department of Environmental Protection shall prepare rules and regulations establishing the environmental standards for the preservation area upon which the regional master plan adopted by the council and the Highlands permitting review program administered by the department pursuant to this act shall be based.”).

[26] Tom Jonson, Lawmakers Ready to Revoke Rule Allowing More Development in Highlands, NJ Spotlight (Jan. 2, 2018), http://www.njspotlight.com/stories/18/01/01/lawmakers-ready-to-revoke-rule-allowing-more-development-in-highlands/.

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