We Have to Talk: New Jersey Appellate Division Invalidates Discharge Permit for Failure of Agency to Consult with Highlands Council

In the latest twist in a saga that began in 2002, the New Jersey Appellate Division held that the Department of Environmental Protection’s (DEP) failure to consult with the Highlands Council invalidated a wastewater discharge permit that DEP had issued to the prospective developer of a site located in the “planning area” covered by the state’s Highlands Water Protection and Planning Act (Highlands Act). As a result, the story is guaranteed to continue for several more months and perhaps, in light of likely appeals, several more years.

Bellemead Development Corporation first received a New Jersey Pollution Discharge Elimination System (NJPDES) permit for the discharge of treated wastewater from a planned development in Tewksbury in 1998. In 2002, with the permit set to expire the next year, Bellemead applied for a renewal of its original permit. DEP’s denial of the application in 2006 set in motion a chain of administrative hearings, apparent settlements, and new applications that culminated in DEP’s issuance of a new permit in 2014. The Township of Readington and several citizen groups appealed.

The appellants pointed to a number of procedural missteps by DEP, but the court focused on the department’s failure to consult the Highlands Council prior to issuing the permit. The Council was created by the 2004 Highlands Act, which regulates development in a large area in the northwestern part of the state. Regulations promulgated by DEP to implement the statute require DEP to consult with the Council on all permit applications for projects within the planning area and to give “great consideration and weight” to the Regional Master Plan adopted by the Council in 2008 and amended in 2011, and prohibits the issuance of any permit that is incompatible with the goals of the Plan.

The record pointed to some e-mail exchanges and a telephone conference call between DEP and the Council after a draft version of the permit had been put out for public comment in 2011, but there was no evidence of the Council’s assessment of the draft permit. For the Appellate Division, this rendered the final permit invalid. It remanded the matter to DEP with instructions to consult with the Highlands Council and to issue, if necessary (i.e., if the Council’s views require it), an amended final permit within sixty days. (Presumably, if the Council flatly opposes the permit, DEP will simply decline to issue it.) The tale of NJPDES Permit No. NJ0102563 will have at least one more chapter.

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