In an environmental enforcement action under the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -35, the Appellate Division upheld a civil administrative penalty of $604,110 against a developer for not securing a NJDEP permit for sewer hookup prior to the construction of a major residential development, notwithstanding the fact that there was no discharge of pollutants.  New Jersey Dep’t of Env. Prot. v. Town & Country Developers, Inc., Docket No. A-5940-05T1, (App. Div. Oct. 19, 2007) (Approved for Publication).  In Town & Country,  the court rejected the defendant’s argument that the violation was “minor” and exempted under the Grace Period Law, N.J.S.A. 12:1D-125 to -133, finding that the violation was purposeful, irremediable, and undermined the very purpose of the dry-sewer law prohibitions under the WPCA.  The court concluded that the defendant’s failure to obtain pre-approval deprived the NJDEP of its authority to decide whether the project may adversely affect sewer infrastructure and statewide water quality.

This decision is another cautionary reminder of how all-encompassing NJDEP’s role is in land use and development and how deferential to this agency the courts have been and will continue to be in the enforcement of substantial civil penalties, particularly when it comes to the more subjective criteria under the Grace Period Law.  Additionally, on questions of discretion as to the seriousness of the offense (and the resultant increase in the penalty amount),  litigants will have to meet a heavy burden to overcome an agency determination.

Finally, in considering how the Grace Period Law will be applied in future similar matters, note that the court included a statement in a footnote that the NJDEP has promulgated regulations in 2007 which now classify the violations of the WPCA alleged here as “non-minor” for purposes of the Grace Period Law.