VOL. CLXXV – NO.
10 – INDEX 965
DEP Commences Effort To Limit
Water Resources Across the State
Some believe water resource management
is being used as a tool to stifle development
By Richard J. Hoff Jr.
he Department of Environmental
T Protection has finally begun to
recognize that through strict polic-
ing and review of those entities that
provide water, it can effectuate a pow-
erful chokehold on development within
New Jersey. In fact, as recently as Dec.
2003, DEP Commissioner Bradley
Campbell stated that there are approxi-
mately 20 water purveyors statewide
that have been determined by the DEP
to have no additional water resources to
supply.
While much attention has been
paid to Gov. James McGreevey’s
promise of broad and sweeping legisla-
tive efforts to prevent unwanted devel-
opment within New Jersey’s suburbs,
the reality is that such legislation has
not been forthcoming. However, such a
short fall in legislative initiatives
should not be construed as an indica-
tion that the administration has given
up its assault on what it has termed
“sprawl,” or what most of us know as
suburban, residential development.
Quite to the contrary, the adminis-
tration and the DEP recognize that
Hoff is an associate in the real estate, land use, construction and environmental law
practice group at Flaster/Greenberg of Cherry Hill.
This article is reprinted with permission from the MARCH 8, 2004 issue of the New Jersey Law Journal. ©2004 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.
MARCH 8, 2004 ESTABLISHED 1878
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such additional housing in the suburbs.
Is New Jersey Really
Running Out of Water?
Of course, the obvious question in
light of these separate water moratori-
ums is whether or not the state is truly
running out of available water supplies.
In particular, are New Jersey’s ground-
water resources (i.e., aquifers) safely
developers in New Jersey require sustaining present levels of develop-
resources beyond the simple procure- ment? Could those same ground water
ment of land use approvals to proceed resources sustain additional develop-
with construction. While many of those
resources are not within the ambit of
DEP jurisdiction, some vital ones are
ment?
Not surprisingly, the state has
taken the position that restrictions on
squarely within the DEP’s regulatory water usage, including moratoriums,
control. Specifically, the DEP controls are necessary to preserve groundwater
the state’s water resources. Without resources. However, the rationale for
water there can be no new develop- that determination seems to be that any
ment. additional water withdrawn from the
Moreover, the claimed lack of state’s groundwater resources would
water is not limited to future develop- create adverse ecological and water
ment within the affected municipali- supply consequences. In short, more
ties, but also to projects that, in some water withdrawn is too much water
instances, have already commenced withdrawn.
construction. In certain instances, the While this reasoning seems to
DEP’s declarations as to lack of avail- serve the apparent policy objective to
able water for water companies and stop additional, unwanted develop-
municipalities come suddenly to both ment, it fails to address the real ques-
landowners and water purveyors. The tion: Can New Jersey’s groundwater
consequences have proved devastating resources, from an ecologic and water
for developers, their workforces and supply perspective, safely serve addi-
buyers awaiting finished products. tional development? That question —
However, municipalities that con- an issue of science and hydrology — is
tinue to plead for the state’s aid in turn- one that the DEP has yet to answer.
ing back unwanted housing welcome If recent experience is any indica-
the DEP’s new stance on water alloca- tion, it seems that protecting New
tion as an addition to the ever-growing Jersey’s groundwater resources is but a
regulatory arsenal in use to prevent secondary motivation for the state’s
and the DEP’s recent actions to scale
back the allocation of water supplies.
As the rise and fall of Executive Order
2 NEW JERSEY LAW JOURNAL, MARCH 8, 2004
No. 32, and the DEP’s accompanying
Administrative Order No. 2002-22,
demonstrate, ecological and water sup-
ply concerns that may serve as a pre-
amble for the state’s regulatory action
are little more than a thinly veiled pre-
text for yet another measure to stop
residential expansion in New Jersey’s
suburban and rural areas.
If it were otherwise, then the mora-
torium that befell three municipalities
in the summer of 2002, following the
enactment of Executive Order No. 32
would have been applied even-handed-
ly across a number of municipalities in
Atlantic County. However, an impar-
tial path toward ecological protection
was not taken.
New Growth Control Strategy
Perhaps the most prominent effort
by the current administration to use
water resources as a growth control
measure was the Sept. 22, 2002,
issuance of these orders.
In short, Executive Order No. 32
prohibited two water companies from
distributing additional water in the
municipalities of Egg Harbor
Township, Galloway Township and
Hamilton Township in Atlantic County.
Each water purveyor obtained their
respective water supplies by drilling
wells into a groundwater source known
as the Kirkwood-Cohansey aquifer
system.
The supposed rationale behind the
water moratorium was that the two
water purveyors serving the three
municipalities in question were at or
near their water distribution limits and,
in the assessment of the state, any fur-
ther water diversions by those purvey-
ors would create “adverse ecological
and water supply consequences to the
Kirkwood-Cohansey aquifer system.”
From the date of the order through
Dec. 2002, the two water purveyors
were prohibited from providing water
to any additional developments —
even those developments to which the
DEP had previously granted the neces-
sary approvals.
Quite literally, on Sept. 22, 2002,
construction crews walked off active
job sites, not to return for months.
While the supposed basis for the mora-
torium was the protection of the eco-
logically threatened aquifer, the reality
is that Order No. 32 was the unveiling
of the state’s bold strategy of growth
control by means of stringent water
resource regulation.
The Kirkwood-Cohansey aquifer
system contains an estimated 17 tril-
lion gallons of water and serves as the
primary water source for approximate-
ly 80 municipalities across five New
Jersey counties. In order to provide
water service to the Townships of Egg
Harbor, Galloway and Hamilton, the
wells that draw from the Kirkwood-
Cohansey aquifer system are located
next to the very same wells that serve
other municipalities, including Atlantic
City.
In fact, most of the wells that pro-
vide water service to Atlantic City are
located in Egg Harbor Township. The
irony of Order No. 32 is that while it
prohibited the provision of additional
water service to three municipalities, it
did nothing to prevent or curtail other
water purveyors from increasing their
withdrawal of water from the same
Kirkwood-Cohansey aquifer system to
meet the development demands in
municipalities other than the
Townships of Egg Harbor, Galloway
and Hamilton. The order contained no
mechanism to preserve New Jersey’s
groundwater; it simply prohibited
ground water distribution to areas
experiencing residential development.
Following a lawsuit by the
Builders League of South Jersey, the
moratorium created by the order was
lifted. However, the DEP’s use of
water resource management as a tool to
stifle development persists.
Unfortunately for developers, avoiding
hurdles imposed by the DEP’s ever-
increasing declarations that water pur-
veyors have depleted their respective
water resources is proving to be a
daunting and time-consuming task.
Most difficult and frustrating is
that the DEP has not approved and
adopted any new regulations that make
the availability of water supply more
possible. Rather, the DEP is enforcing,
with fervor, long-standing procedures
that when combined with a review
process approaching inertia, have led
to a system in which water purveyors
175 N.J.L.J. 965
have been prevented from supplement-
ing their available water supplies
quickly enough to match the pace of
new development.
While determining how and why
these moratoriums have occurred is
one challenge, resolving them is a
much more difficult task.
Water Service Basics
Key to understanding how the
DEP has managed to transform water
supply regulations into a measure of
growth control is an understanding of
how water is distributed throughout the
state.
Municipal corporations or private
utility companies receive franchises
that allow them to provide water ser-
vice to designated areas. When a prop-
erty owner proposes to construct a pro-
ject requiring water usage, the property
owner must submit a water application
to the designated water purveyor. The
water purveyor must review the appli-
cation, in part, to confirm that the pur-
veyor has a sufficient water supply to
meet the water demands posed by the
construction outlined in the water
application.
If the water purveyor determines
that it has an adequate supply, the
water purveyor will endorse the appli-
cation and submit it to the DEP for
approval. If the DEP is satisfied that an
available water supply exists for the
water purveyor submitting the water
application, the DEP should approve
the water application.
The volume of water that each of
New Jersey’s water purveyors may dis-
tribute to its franchised customers is
controlled through the issuance of
Water Allocation Permits. The receipt,
review and issuance of Water
Allocation Permits are handled by cer-
tain divisions within the DEP. Each
permit issued to a water purveyor sets
forth the maximum amount of water
allowable for distribution on a monthly
and yearly basis. A water purveyor
may not exceed its monthly or yearly
limits.
In theory, when a water purveyor
recognizes that demand within its fran-
chised area is increasing and at some
point in the foreseeable future will out-
175 N.J.L.J. 965
grow the limits of its permit, the water
purveyor must develop a plan for meet-
ing that increasing demand. Depending
on the pace and speed of new develop-
ments requiring water supplies, a water
purveyor can seek to increase the lim-
its of its permit by either increasing the
potential water yield of its present
water sources or by seeking new water
sources.
By way of example, a water pur-
veyor only seeking a minimal addition
to the limits of its permit may choose
to simply update or improve its current
water supply system. Measures to
accomplish such efficiency increases
could include a well rehabilitation pro-
gram or a water system maintenance
program that, quite literally, checks the
existing water lines for leaks.
Although sometimes overlooked, a
leak or other mechanical problem with-
in a water line pumping hundreds of
thousands, or even millions of gallons
of water per day, can result in a sizable
loss of water resources. While
improvements or upgrades to a water
system may allow a water purveyor
some relief in meeting increasing
demand, the more typical case is one in
which the water purveyor must secure
additional water from existing sources
or develop an entirely new source of
water.
In most instances, when a water
purveyor faces rising levels of devel-
opment, it must develop a future water
NEW JERSEY LAW JOURNAL, MARCH 8, 2004
strategy that includes the additions of
new water sources. In areas where the
majority or all of the water supply
comes from groundwater, as was the
case with Order No. 32, the conven-
tional means of increasing the limits of
a permit is to drill a new well for place-
ment into service.
The process of developing, testing
and obtaining approval for a new well
is costly and time consuming. It is
especially time consuming in light of
the pace of regulatory approval. As
many water purveyors have learned
(and others will undoubtedly soon
learn), the pace of that regulatory
review has not matched the pace of the
need for housing.
So slow is that regulatory process
that even prudent water purveyors who
have been diligent in assessing and
anticipating their need for expansion
over the years have been unable to
meet increased demand because of the
DEP’s inability to efficiently process
the necessary applications.
Whether the delays within the
DEP are a function of policy or
unavailable resources, many applica-
tions submitted in conjunction with
water resources can be subjected to
internal DEP processing and reviews
that sometimes take years. Whether it
is a simple water application submit-
ted by a property for water service to a
particular project or a complex appli-
cation for an increase in the limits of a
3
water purveyor’s permit, the DEP
rarely acts in an expeditious manner.
Awaiting Regulatory Overhaul
While both current and prior
administrations have recognized that
New Jersey’s population will continue
to grow, the state has failed to imple-
ment an efficient regulatory process for
allocating the state’s water resources in
order to meet the housing need posed
by that population growth. This lack of
a satisfactory process is only further
undermined by the DEP’s re-discov-
ered diligence in policing the state’s
water purveyors.
The result, while perhaps desirable
from the prospective of prohibiting
additional residential development, is
inconsistent with the recognized need
to address a state population that con-
tinues to grow. The challenge for the
state and the DEP will be to implement
a system of allocating the state’s water
resources in a safe, efficient and timely
manner. Whether the state and the DEP
have the will to undertake the neces-
sary, regulatory overhaul remains to be
seen.
Benjamin Franklin once observed
that, “When the well’s dry we know the
worth of water.” In recent years, the
DEP — and developers — have dis-
covered that the worth of water is more
than even the great statesman could
have envisioned. ■