22 A.3d 94
N.J. Super. Ct. App. Div.2011Background
- DEP adopted amendments to the Water Quality Management Planning Rules (WQMP Rules) N.J.A.C. 7:15-5.24 and 7:15-5.25(e); Bi-County challenges as beyond water quality authority and ultra vires.
- 7:15-5.24 prohibits extending sewer service into environmentally sensitive areas (habitat, natural heritage sites, etc.) with narrow exceptions; 5.25(e) sets a two mg/L nitrate limit for septic-system discharges.
- Areawide water quality management plans (WQM) and wastewater management plans (WMP) govern sewer service areas and septic systems; projects outside sewer areas use ISSDSs absent plan amendments.
- DEP’s WQPA, WPCA, NHPA, ENSCA, and related statutes guide the agency to integrate land-use, environmental, and water quality objectives; the regulations are framed as water quality rules with environmental aims.
- Appellant argues the rules are non-water-related land-use controls restricted to municipalities; the court concludes the rules are valid water quality regulations adequately supported by statutory scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are N.J.A.C. 7:15-5.24(b)1-2 valid water quality regulations? | Bi-County: regulations are land-use controls beyond DEP’s authority. | DEP acts under WQPA/WPCA to regulate water quality; habitat considerations are integral to water policy. | Yes; regulations are valid water quality rules. |
| Does 7:15-5.24(b)4 clash with FWPA by restricting wetlands-adjacent areas? | Unlawful preemption by FWPA; expands wetlands regulation beyond FWPA. | Not a wetlands regulation; not precluded as it addresses broader environmental/resource concerns. | No; not preempted; harmonized with FWPA. |
| Does NHPA support the challenged habitat/natural heritage provisions? | NHPA is informational only and cannot justify habitat-based restrictions. | NHPA provides information to protect critical natural areas; supports DEP’s regulatory approach. | Yes; NHPA supports the habitat-based restrictions as part of water quality planning. |
| Is 7:15-5.25(e)’s 2 mg/L nitrate standard arbitrary or irrational for septic discharges? | Two mg/L is unnecessarily stringent and not scientifically justified; should align with drinking water standard (10 mg/L). | Two mg/L reflects statewide groundwater nitrate levels and conserves groundwater; uniform standard simplifies regulation. | No; standard rationally supported and within DEP’s statutory authority. |
| Does Mount Laurel doctrine apply to DEP water quality rules as land-use controls? | As DEP regulates land use, Mt. Laurel requires realistic housing opportunities. | WQMP Rules are not land-use regulations nor under complete planning/zoning control; Mt. Laurel not applicable. | No; Mt. Laurel doctrine does not apply. |
Key Cases Cited
- In re Stormwater Mgmt. Rules, 384 N.J. Super. 451 (App.Div. 2006) (implied authority for water quality regulations; balancing powers)
- In re Freshwater Wetlands Protection Act Rules, 180 N.J. 478 (1999) (FWPA preemption principles; DEP regulation harmonization)
- In re Adopted Amendments to N.J.A.C. 7:7A-2.4, 365 N.J. Super. 255 (App.Div. 2003) (habitat definition broad; landscape project method valid)
- N.J. Builders Ass'n v. Dep't of Envtl. Prot., 249 N.J. Super. 60 (App.Div. 1991) (statutory construction of regulatory authority; integration of plans)
- Soc'y for Env'tl Econ. Dev. v. N.J. Dep't of Envtl. Prot., 208 N.J. Super. 1 (App.Div. 1985) (agency expertise and deference in regulatory actions)
- In re N.J. Bd. of Pub. Utils., 200 N.J. Super. 544 (App.Div. 1985) (agency authority inferred from statutory scheme)
- State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211 (1999) (deference to agency regulatory decisions)
- S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mt. Laurel, 67 N.J. 151 (1975) (Mount Laurel housing obligation; applicability to state agencies)