Appellate Court sends Highlands permit for sewage discharge back to the DEP

The NJ region’s Highland reservoirs provide drinking water for more than half of New Jersey’s residents. Reservoir flyover, November 1, 2016.In a long-running story for EELC and friends of Rockaway Creek, EELC Executive Director and attorney Aaron Kleinbaum won a major victory in court in the effort to prevent a sewage disposal plant from discharging into a wild trout stream in the Highlands.   

“This is a significant victory for water quality in the Highlands Region, which is source of pristine drinking water for millions of New Jersey residents,” said attorney Aaron Kleinbaum, Executive Director of the Eastern Environmental Law Center, “NJDEP should have rejected Bellemead’s application for a wastewater discharge permit outright. It fails to meet the basic wastewater planning requirements of the Highlands Regional Master Plan — furthermore NJDEP failed to consult with the Highlands Council, as required by law.”

Believe it or not, it took nearly three years of legal wrangling to get the DEP to do what it is supposed to do under the NJ Highlands Act — to consult the state’s own agency, the Highlands Council, before making decisions on development projects.

National developer Bellemead, who owns a 74-acre property in Tewksbury, has had their sights on a trout stream in the Highlands for almost twenty years, hoping to secure it for sewage disposal from various large-scale planned developments.  Located in the Planning Zone of the Highlands Region, Rockaway Creek is part of the Raritan River Watershed and is recognized as an important recreational and drinking water resource.

In 1998, Bellemead received a wastewater permit to allow 100,000 gallons of treated sewage to flow daily into Rockaway Creek from a planned office park.  The office development was never built, and when Bellemead went to renew the decades-old permit in 2005 to gain rights for sewage disposal for any future development of their properties in Tewkesbury, a flawed Bellemead proposal and a huge public outcry convinced the DEP to deny it.  

By then, New Jersey had decided to protect the Highlands, a region of working farms and historic hamlets which provides drinking water for half of the state’s residents. Under the legislative NJ Highlands Water Protection Act of 2004, development in the region is regulated by a public agency, the Highlands Council, which follows a Regional Master Plan.   

Jump forward nine years after the developer’s application for the sewage disposal permit was denied.  Under a new state administration, the NJ DEP responded to the developer’s appeal of the permit denial by saying yes this time.

The DEP’s decision to approve the Bellemead permit blatantly disregarded the statutory protections for the Highlands region under the Highlands Regional Master Plan.  Despite significant, substantive public comments received in 2011, the DEP reversed its original denial of the sewage permit in 2014.  And the state’s environmental protection agency came to their decision without consultation with the NJ Highlands Council, as is required by law.

Upon learning of the 2014 permit issuance, EELC immediately stepped in to appeal the DEP’s reversal on behalf of the NJ Highlands Coalition, the Raritan Headwaters Association, the Township of Readington and the Sierra Club.  

In convincing an appellate panel of judges to enforce the Highlands Act, EELC relied on an email that showed the DEP had not made the necessary consultation with the Highlands Council nor an assessment of the permit by the Highlands Council of whether such a wastewater discharge was permitted under the Highlands Regional Master Plan.

“We can’t rely on the old system of land use regulation to protect drinking water.   The New Jersey legislature requires that we rely on the Highlands Regional Master Plan,” said the attorney who fought the case, Mr. Kleinbaum.

After nearly three years of decisive legal action, the NJ Appellate Court agreed with EELC and in May 2017 ordered the DEP to reconsider its permit decision and to consult with the Highlands Council in accordance with the law.

“This is an immense victory for regional planning in New Jersey,’’ said Bill Kibler, policy director of the Raritan Headwaters Association. “The court made clear that DEP cannot issue or renew a permit that is inconsistent with the goals of the Highlands Regional Master Plan.’’

Soon after, the Highlands Council fulfilled its role to assess development plans under the Highlands Act and issued a formal determination that the Bellemead sewage permit is incompatible with the resource protections of the Highlands Regional Master Plan. See the May 24, 2017 letter from the Council to the NJ DEP.  

“What is interesting is that the Court made no distinction between conforming and non-conforming municipalities in the Planning Area,” said Elliott Ruga, Policy Director of the New Jersey Highlands Coalition. “Whereas towns in the Planning Area are free to decide whether or not to align local land use ordinances to be consistent with the Highlands Regional Master Plan, it has always been our position that State agencies, such as the DEP, in support of the goals and objectives of the Highlands Act, should uphold the resource protection goals of the RMP in its permit decisions by consulting with the Highlands Council, regardless of the municipality’s conformance status. That the Court has signaled it agrees with our position is a huge win.”

Even with the Highlands Council’s thumbs down on the sewage discharge,  EELC and its clients are waiting to see what  DEP will do. If the permit is denied, Mr. Kleinbaum said that there would likely be continuing appeals by the developer and the need for more legal action to protect the Creek and New Jersey’s drinking water.  

In recognition of the long-term work EELC has done on this case for environmental organizations in the Highlands region, the Highlands Coalition (not to be confused with the public agency, the  Highlands Council) is presenting an award to Attorney Kleinbaum this October.