New Jersey Legislature is Moving Forward With Efforts to Invalidate the DEP’s Highlands Water Protection and Planning Act (Highlands Act) Rules
The New Jersey Legislature is moving forward with efforts to invalidate a rule enacted by the New Jersey Department of Environmental Protection (DEP) earlier this year. The regulation amends the septic system density standards in the Highlands Water Protection and Planning Act (Highlands Act) and clears the way for continued land development in the environmentally-sensitive region.
In 2004, the New Jersey Legislature passed the New Jersey Highlands Water Protection and Planning Act (Highlands Act) to establish a regional land management plan aimed at protecting and preserving the natural resources of the region. Because the Highlands region provides much of the state’s drinking water, the Highlands Act requires the DEP to establish septic density standards at a level that will maintain existing water quality. The Highlands Act specifically requires the DEP’s rules to include “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.”
As explained by the DEP, the agency uses nutrients found in septic waste, called nitrates, to assess water quality. Septic density formulas are based on the acreage of land necessary to dilute nitrates to levels that will not negatively impact water quality. In 2008, the DEP’s septic density standards were set to allow one septic system for every 88 acres of forested area and one septic system for every 25 acres that is not forested.
Last year, the DEP proposed amended septic density standards for the Highlands region. Because they “could result in up to 1,145 additional septic systems, or about 12 percent more individual septic systems than under the existing rule,” the standards have been widely criticized by environmental groups. Nonetheless, the DEP adopted the new standards on April 21, 2017.
Resolution to Invalidate DEP’s New Septic Density Standards
New Jersey lawmakers have also criticized the DEP’s Highlands Water Protection and Planning Act Rules, arguing that they violate the legislative intent of the Highlands Act. Accordingly, the Legislature is working to force the DEP to rescind them.
Under the State of New Jersey’s Constitution, the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if it is consistent with the intent of the Legislature. If lawmakers determine that a rule or regulation violates legislative intent, they can seek to invalidate it.
In June, the Legislature passed Assembly Concurrent Resolution No. 192 (1R). The resolution states that “the new standards contained in the May 2, 2016 rule proposal do not comply with the requirement in the Highlands Act for the septic system density standards to be established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses.”
The resolution raises concerns that the DEP relied in part on nitrate data generated from wells sampled between 2004 and 2011, after the date of enactment of the Highlands Act. As set forth in ACR 192, “the proposed standards do not accurately preserve or maintain 2004 water quality conditions or restore water quality, as required by the act, but instead, reflect the development and accompanying degradation in groundwater quality that has occurred since 2004 and allows water quality to continue to degrade.”
The resolution also contends that the DEP’s rule proposal directly contradicts the language of the Highlands Act. It notes DEP’s proposed rule amendments seek to “relate the septic system density standards to the . . . Highlands Regional Master Plan (RMP),” but section 34 of the Highlands Act requires, conversely, that the RMP be based on the DEP’s rules.
What’s Next?
After passage by the Legislature, ACR 192 was subsequently filed with the Secretary of State and transmitted to the Commissioner of Environmental Protection. Now that the DEP has declined to rescind or amend the septic density standards, the Legislature must now reapprove the resolution in order for it to take effect.
Under the New Jersey Constitution, the Legislature may invalidate the rule following a public hearing held by either House, the placement of a transcript of the public hearing on the desks of the members of each House in open meeting followed by the passage of at least 20 calendar days, and a vote of a majority of each House in favor of a concurrent resolution invalidating the rule. Most recently, the Senate Environment and Energy Committee voted unanimously in favor of the resolution (SCR-163).
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.
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