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PUBLIC HEARING: WEDNESDAY, FEBRUARY 27TH, 4 PM TO 6 PM, CAPE MAY COUNTY ADMINISTRATION BUILDING, 4 MOORE ROAD, CAPE MAY COURT HOUSE, N.J. 08210 Minutes of Hearing February 27, 2013 INTRODUCTION Bill Purdie: Good Evening everybody and welcome to the Department of Environmental Protection Public Hearing on the proposed amendment to the Cape May County Water Quality Management Plan. My name is Bill Purdie from the Division of Coastal and Land Use Planning. I’ve been authorized by the Commissioner of the DEP to conduct this meeting to gather public comment on the proposed amendment. In accordance with the requirements of the Water Quality Management Planning Rules, notice of this meeting has been duly published in the January 7, 2013 issue of the NEW JERSEY REGISTER and also published in the PRESS OF ATLANTIC CITY. This amendment proposal would amend the existing Cape May County Water Quality Management (WQM) Plan upon adoption by the Department and would adopt a “Future Wastewater Service Area” (FWSA) map for the County. This amendment proposal was submitted by Cape May County in accordance with P.L. 2011, c. 203, which permits a wastewater management planning agency to prepare and submit to the Department at least that portion of a wastewater management plan designating a sewer service area which shall comply with the Departments’ regulatory criteria. This proposed FWSA map was developed in coordination with and reviewed by the DEP, Cape May County and each of the affected municipalities. This map reflects proposed changes in wastewater service area designations to eliminate, avoid, or minimize conflicts with Category One waters, wetlands, threatened and endangered species habitat, and other unique and rare ecological communities. Other changes to the proposed sewer service area have been made through advanced local planning objectives. The Department of Cape May County will accept comments and information related to this map tonight until March 14th or fifteen days after this public hearing. The proposed map can be viewed at the Department’s Division of Coastal and Land Use Planning website and on the Cape May County Department of Planning’s website. Again this amendment is a proposal only; a final agency decision to adopt or not adopt this amendment has not been made. The DEP is conducting this hearing to gather comments which will be used to inform the Department’s final decision. This hearing must be conducted in an orderly fashion to do that. Any questions raised tonight will not be answered during the hearing but will be recorded and answered in writing; the Department’s final decision. There will be no cross examination of any speakers tonight. If you are speaking or if you filled in a card, on the card there is a box to check if you want a copy of the final decision document. If you want to get one and didn’t sign as a speaker you can grab 1 of those cards and check the box on there and we will get you the final transcript. Again, I ask everyone to sign the attendance sheet and if you have a written copy of your testimony that you can leave with us that would help us out so we can accurately capture your remarks. As a courtesy I would like to call elected and municipal officials first and then we’ll call people up in the order that they signed. So, are there any public officials here tonight that would like to testify? Okay. Could you use the microphone over at the side over there so we can record it? ---PAGE BREAK--- TESTIMONY Mayor Dan Lockwood Good Afternoon, my name is Dan Lockwood and I have the distinguished pleasure of being the Mayor of Middle Township, the largest town in Cape May County by land area. I have a letter that I want to read into the record but I want to sort of set it up by saying that these aren’t my thoughts alone, these are basically kind of a summary of how many professionals feel who have been involved in developing Middle Township and dealing with the State regulations over a long period of time, decades in fact. Most of who are fairly knowledgeable about the plan endorsement process that Middle Township successfully completed recently. With that I’ll read the letter in. Mayor Lockwood reads letter: As you may be aware Middle Township has a long history of keeping abreast of ever changing regulations that have been established by the New Jersey Department of Environmental Protection. Middle Township was 1 of the first municipalities in Cape May County to receive plan endorsement from Center designation from both the Office of Smart Growth and the Department of Land Use Planning. This was a milestone effort for Middle Township that culminated from more than fifteen years of planning and negotiations with the DEP. During this arduous process there were specific discussions regarding the Center designation within a township in the current 2008 Wastewater Management Plan (WMP). The DEP was steadfast in it’s approach to Center designation, specifically that only areas contiguous with the Centers outlined by the DEP could be considered in area that already had been developed, outside of those areas could not be considered to be located within the Center. This posed a problem for Middle Township since many of the developed area were within the current 2008 WMP area but would be outside of the designated Centers. This topic of discussion was the focus of many meetings with the DEP and the final agreed upon outcome was that the areas outside of the proposed Centers would remain within the 2008 WMP. The rational was that these areas were currently developed and having them in or out of the Center would not change the final outcome. The question was asked by Middle Twp. representatives and I quote “What will happen in the future to areas outside a designated Center but which are located within an existing 2008 Wastewater Management Area when changes are proposed to the 2008 plan?” The answer from the DEP was nothing would change. Based on that answer Middle Township continued to designate their Centers leaving out those developed areas assuming that they would be included in future 2008 Wastewater Management Areas. Imagine the surprise when we reviewed the new Wastewater Service Area Mapping and discovered that area previously within the 2008 but outside of the Center were removed. That does not make any sense to us whatsoever to remove vacant lots within neighborhoods that are developed within the 2008 plan. It is unfair to those property owners to have the rules changed in the middle of the game just because their lots remain vacant. Further it seems arbitrary and capricious of the State to penalize those individuals that for one reason or another were not in a position to develop those vacant lots on the State’s time table. Middle Township would have never agreed to leave these areas outside of the Center and disregard the rights of those property owners had the township knew that they would not be protected in the future. We feel betrayed by the DEP since they reneged own their word to the township to protect these areas and homeowners as well as those in the future. Because of the misrepresentation Middle Township does not support the FWSA mapping. We specifically request that the revisions be made to the map to uphold the promises made by including those vacant lots that are currently located within the 2008 Wastewater Management Area. That is the end of formal statement. ---PAGE BREAK--- MINUTES OF A PUBLIC HEARING HELD FEBRUARY 27, 2013 (CONTINUED) Mayor Lockwood: I will tell you that it’s very frustrating to go through such a long and intricate process, spending hundreds of thousands of dollars on plan endorsement trying to make it sync with the 2008 Plan knowing that we have a very diverse town with a lot of different things going on. I watch personally as the DEP and the Smart Growth Process tore apart Middle Township’s areas for growth. They disconnected the Rio Grande Center and the Cape May Court House Center by putting a large gap in the middle, most of which is sewered already in an obvious area for development. I look at the economic impact that this potentially has on top of what we are already going through because of Hurricane Sandy, because of the FEMA implications that are still unsettled, unresolved, and then we have areas that now will be again impacted. It makes it very difficult for me to send a message to business and to future investment in Middle Township of a town that has predictable criteria. How do I attract business to Middle Township? How do I attract development to Middle Township that we want, when I can’t have a stable platform for them to come in and predict what the rules are going to be, what they are going to be able to do in the future with their businesses? So, that’s my personal opinion as mayor in trying to run a town amongst many different jurisdictions. I appreciate your time. I hope you give serious consideration to these issues. I can tell you that if you have any question as to whether Middle Township had every right to believe the plan was going to stay the way that we had seen it in the past you only need to go to Maser Associates. They worked on our plan endorsement process and they are now doing the WQP for the County and they know first hand of what we anticipated and then where we ended up. Thank you. Bill Purdie: Thank you, Mayor. Are there any other officials today? Okay. The next speaker I have is Doug Burke. Doug Burke Good Afternoon. As you indicated my name is Doug Burke. I’m a local Land Use Attorney. I’m mostly here wearing 2 hats today as an attorney, and also as a representative of my family; the Burke family who has operated an automobile dealership in Cape May County for over one hundred years. In particular I’m here for property located at Block 132.01, Lot 28 in Middle Township. I’m here today to tell you why the proposed map serves to disregard historical and current approvals at this particular property as well as echoes some of the sentiments that the Mayor of Middle Township, Mr. Lockwood just echoed, as far as how this goes against the overall needs of the township in their Master Plan and Town Centers. To take a quick look, it’s important to understand the historical approvals of the property. There have been approvals for development for the past thirty years, dating back to the early 1980’s, when in 1984 the Department of the Army determined that this property was buildable without any further additional permits, any uplands. Further and perhaps more significant in 1990 the Cape May County Municipal Utilities Authority included this property in the sewer service area. Any assumption that this property is located, the environmentally sensitive lands would prohibit the uplands from being developed is completely false and untrue. In fact the DEP recently approved an LOI that was revised September 2, 2011 to indicate that a significant portion of the property is buildable and developable. The reason I’m here today, is a portion of the property was included in the Town Center, which of course was great for the piece of property, and it was intended by the state and the township to be developed and built upon, in accordance with their Master Plan, which obviously intended to promote commercial development for the property. ---PAGE BREAK--- MINUTES OF A PUBLIC HEARING HELD FEBRUARY 27, 2013 (CONTINUED) This property was singled out as encouraging higher density use and that was done so by the township and the state all along, that was endorsed. Unfortunately when it came time to adopt the endorsed plan a portion of this lot was not included in the Town Center. There is no real indication as to why. The transparency unfortunately is not there. It seems as though an arbitrary line was drawn on the lot to indicate what was in the Town Center, and it left a significant amount of land outside of the Town Center which of course you know the DEP had previously approved this portion as being buildable and developable. So, when this was learned by the property owner, by my family, it was taken to the township and unfortunately there was some misunderstanding as far as what would be required to correct this. We viewed it and the township frankly viewed it as a mapping error which was believed to be able to be resolved through the township. The township committee which actually voted to move the line to where it was intended to be, which was the approved LOI line and the approved wetlands line. Unfortunately we learned later that this process was not correct and the Office of Planning Advocacy had to be involved to in fact amend the plan endorsement and correct the error. This is obviously a much more involved process that we are now undertaking in cooperation with the township to prepare a plan that would revise this line to include the intended buildable area in the Town Center, as I said, as it was supposed to be included. So, unfortunately what we are looking at here is a large inconsistency where the township and the state intended this property to be included in the Town Center, and they in fact approved that but as we look later on, even with the LOI that was in effect at the time, a lot of the buildable land was not in fact included in the Town Center. Frankly the inconsistency concerning the historical approvals that included this in the sewer service area, the LOI in effect at the time and the approvals that were received, the Master Plan, all that for this property and now we are looking at the proposed sewer service map that unfortunately does not include a large portion of the property. I’m sure that it can be understood this would have a significant detrimental impact on the development of the property. And be mindful this isn’t only for the property owner’s benefit but as this piece of property was included in the Town Center this was to encourage growth in the township and be an overall benefit to the community as a whole. The State frankly overruling this intention would be a lack of regard for the historical approval to the property and the interest for redevelopment of the township. That is why we are here today. To oppose the proposed map and request that it be revised to include not only the obviously the lands located in the Town Center but also those that are buildable and not approved. Thank you for your time. Bill Purdie: Thank you. The next speaker I have is Louis DeLosso. Louis DeLosso Good Afternoon. My name is Louis DeLosso. I own property at 414 Garden State Parkway, currently professional offices structure. It is Lot 11, Block 132.01. It consists of approximately 4.96 acres and I’ve owned that property since 1986. We are currently on a septic system there. We are now involved closely with the Parkway Authority in having slope easements through the front of our property and in the overpass construction project that is being undertaken by the Parkway Authority. In that effort, they are relocating the force main from the pumping station at Stone Harbor Boulevard and the Parkway as they are constructing the access roads. So, in that process, I’m asking that consideration be given, not just for my lot but for the new residential community to the north, and the residential community off of Schooner Landing Road, that preexisted both my structure that was built in 1958 and the subdivision of Schooner Landing that was done several years ago, about 2006 or so. ---PAGE BREAK--- MINUTES OF A PUBLIC HEARING HELD FEBRUARY 27, 2013 (CONTINUED) I have an LOI done on my property. There are no wetlands there. They do border on sensitive areas. I think it would be in the best interest of all of us if those communities were considered to be included in the sewerable area. That is simply my request. Thank you. Bill Purdie: Thank you sir. Next speaker, I have Andrew Previti. Andrew Previti Good Afternoon. I provided you with a written copy of the comments I’m going to make and I’m making them on behalf of the City of Sea Isle City. I’m responding to the public notice issued by the New Jersey Department of Environmental Protection whereon that agency is seeking public comment on a proposed amendment to the Cape May County WQMP. The amendment proposal is being submitted to the Department of behalf of the Board of Chosen Freeholders of Cape May County as a responsible wastewater management planning agency and specifically relates to the adoption of a Future Wastewater Service Area map for Cape May County. This map if adopted is entitled, “Future Wastewater Service Area” (FWSA), Cape May County, New Jersey. This response is on behalf of the City of Sea Isle City and I’m the municipal engineer for the city. The city had previously requested and draft mapping included, the developed properties north of 22nd Street and west of Landis Avenue to be included in subject map. However, the mapping which is subject to this public hearing excludes these areas from the FWSA and the city would like the Department to reconsider this exclusion. The developed properties are not environmentally sensitive although they are adjacent to such areas. However the developed properties on all barrier islands are adjacent to environmentally sensitive areas given their location between the Atlantic Ocean and the marshlands which extend throughout Cape May County. The exclusion of the developed properties from the FWSA will prevent those properties from becoming customers of the CMCMUA and would deprive the property owners of the benefits of adequate wastewater treatment for the effluent generated by these developed properties. These developed properties currently are serviced by on-site wastewater disposal systems which in and of themselves and in combination with the location are not efficient during times of coastal storm events which result in flooding conditions. The cities position is that all developed properties in the city including that north of 22nd Street should be serviced by modern wastewater collection systems and treatment facilities. The elimination of properties from the FWSA would not be in the best interest of the city or the owners of the property, nor would it serve the public safety, health or welfare. The city therefore petitions the Department to include within the FWSA those developed properties north of 22nd Street and west of Landis Avenue. Thank you for your time. Bill Purdie: Thank you. The next speaker I have Cheryl Reardon. Cheryl Reardon Hi, I’m Cheryl Reardon with the Association of New Jersey Environmental Commissions and I’m representing the South Jersey Bayshore Coalition (SJBC). The undersigned members of the SJBC respectively offer the following comments regarding the CMC Planning Board FWSA map. The SJBC is an assembly of environmental and cultural organizations that seek to preserve the cultural and natural heritage in New Jersey’s Delaware Bayshore Region. Thank you for this opportunity to make preliminary comments. ---PAGE BREAK--- MINUTES OF A PUBLIC HEARING HELD FEBRUARY 27, 2013 (CONTINUED) The CMC maps should be amended. The legend should read Existing or Proposed Future Wastewater Service Areas and not Existing or Proposed Sewer Services Areas. The former includes areas to be served by both sewers and septic systems, while the latter includes only sewers. We urge the Department to follow its rules by excluding all environmentally sensitive areas from the FWSA map including areas mapped as endangered and threatened wildlife species habitat. In particular the mapping should be consistent with the data contained in the Department’s Landscape Maps of habitat for endangered, threatened or other priority species. (Landscape Maps 2.1 and 3.1) Both landscape maps must be used because Version 2.1 is specifically identified in the public notice and Version 3.1 is specifically referenced under the title Landscape Project Data by a link at NJAC 7:15- 5.24(b)1. In many cases the FWSA mapping ignores Landscape Map Version 2.1 or 3.1. The NJDEP should not adopt the proposed Cape May FWSA map as proposed because it wrongfully includes all Pinelands Villages regardless of circumstances, planning considerations or municipal consent in expanded sewer service areas and because it incorporates land into sewer service areas that are environmentally sensitive under the standard of the WQMP roles at NJAC 7:15-5.24. The proposed FWSA would include all Villages in expanded sewer service areas without any basis in applicable Pinelands Water Quality Management Planning or other land use regulations or municipal planning decisions and objectives. We ask the Department to deny any new FWSA in Cape May County and address failing septic systems of existing small lot homes with package plans and return water to the aquifer. We oppose large scale sewering which will require large increases in water demand when the County is known to have such a severe water supply problem. Only after adequate analysis has been performed and made available to the public should the sewer maps be proposed. For example the analysis should include build out capacity constraints, nitrate dilution, and water supply needs and capacity. In addition, the NJDEP regulations specify that NJDEP shall not adopt an amendment to a WQMP if the water supply needs associated with that plan are in conflict with the current New Jersey State Water Supply Plan. The most current plan projected that CMC would have a water supply deficient of 1 million gallons in 2010 and a deficient of 7 million gallons by 2040. It described that CMC is very vulnerable to salt water intrusion. The regulations identify several measures to mitigate a conflict with the State water supply plan when this insufficient existing water supply including conservation, reuse, obtaining a source with available capacity, and reducing the amount of water demand by reducing the amount or altering the type of planned future development. Furthermore, the next water supply plan was supposedly to be shortly released. It proposes to establish a threshold on how much water can be made available from watersheds and water to adequately protect stream flow. Our analysis which will be submitted with our written comments, shows that 2 of the 5 watersheds in CMC are likely at or exceeding the NJDEP threshold. All would exceed it in the future as demand grows, 1 by as much as two hundred and seventy seven percent. The proposed WQMP will facilitate exceeding of these thresholds. The SJBC analysis predicts severe impacts to ground and surface water and the designated uses of the regions waterways if the proposed WQMP was approved. SJBC assessment identifies severe stream flow and wetland depletion, in that the NJDEP would compromise many of its present regulations and policies if the proposal went forward. ---PAGE BREAK--- MINUTES OF A PUBLIC HEARING HELD FEBRUARY 27, 2013 (CONTINUED) Last, the 2001 Gibson Bill was enacted to address the saltwater intrusion problem in CMC. This statute allocated $2 million to the NJDEP to prepare a report on sustainable water supply alternatives within CMC to meet its water supply needs while avoiding any adverse groundwater or ecological impacts. The statute also specified the NJDEP may issue approvals or allocations for increased ground water withdraws in CMC only upon a finding that such new withdraws will not accelerate salt water intrusion, lower existing stream base flow or harm ecological functions or wildlife. To date only 2 of the 6 assessments required of the statute have been completed by the NJDEP. The SJBC strongly recommends the proposed CMC WQMP Amendment not proceed any further until all the initiatives mandated by its regulations and the Gibson Bill have been completed, and that the thresholds employed in the next water supply plan be utilized to determine water availability. The NJDEP has been aware of the water supply problems for more than 50 years. Approval of the proposed plan will only worsen these problems. Again we thank the Department and CMC for its consideration of these comments. More formal comments and analysis will be submitted within 15 days. The letter is signed by Sandy Batty, Executive Director, Association of New Jersey Environmental Commissions; Francis Rapa, Regional Manager, Delaware Bay Watershed New Jersey Conservation Foundation; Tim Dillingham, Executive Director, American Littoral Society; Jeff Tittel, Director, New Jersey Chapter of the Sierra Club; Dave Kringle, New Jersey Environmental Federation; Richard Bishop, Director of Water Programs, Pinelands Preservation Alliance; Lillian Executive Director, Citizens United to Protect the Maurice River and Its Tributaries; Christine Nolan, Executive Director, South Jersey Land & Water Trust; and Richard McNutt, President, Tidewaters Gateway Partnership, Inc. Thank you. END OF TESTIMONY Bill Purdie: I don’t have any cards at the moment. Is there anyone else who would like to make a statement tonight? Failing that, it’s just twenty five minutes to 5 and I’d like to keep the record open until at least quarter to 5. We’ve had comments come in late before so I’d like to keep it open for at least another fifteen minutes. It is now 4:45 P.M. Anyway else, last chance? If not I’ll close the hearing. I’ll read my final statement. CLOSING STATEMENT Again, I thank you all for coming tonight and offering your comments. If you have additional comments for us after this meeting please submit those within fifteen days, that would be by March 14th to WQMP Docket, Division of Coastal and Land Use Planning, 401 East State Street, PO Box 420, Mail Code-40107C, Trenton, N.J. Also please send a copy to Leslie Gimeno, Cape May County Department of Planning, Administration Building, 4 Moore Road, Cape May Court House, 08210. This hearing is now closed.