(concurring).
While I concur with the majority’s conclusion that the order appealed from does not on its face violate the State Planning Act with its precatory language concerning compliance, I take issue with the majority’s view that the order, as applied, does not have a substantial regulatory effect. The inclusion in the order of the term “to the extent permitted by law” saves the order as merely an intra-agency statement. Yet I see in three instances of application of the statement presented to us that the agency has viewed the statement as an authorization to impose substantial requirements on counties and municipalities which would not be there in the absence of the order.
The Department noted in a letter to the Borough of Washington, that upon the adoption of regulations, but without new statutory authority, municipalities will be required to demonstrate by clear and convincing evidence why areawide water quality management plans are not conforming to the State Plan. Even before the new regulations were promulgated, the Township was required to give “justification for noncompliance.” On a more immediate note, the Somerset County Planning Board had to assess its Waste Water Management Plan for compliance with the State Plan and was required to justify any noncomplianee with the State Plan. Similarly, Morris Township was directed to perform a like evaluation, although a later letter explained that the “evaluation is voluntary,” and not required.
*105As soon as the State requires this type of information, the municipalities will turn to the potential developers to fill this void. This will increase costs and will engender delay while a planner provides a line-by-line comparison of the proposed development with the State Plan. The municipality’s own planner then must do the same thing to check on the applicant’s presentation, all so that DEP can be shown that the State Plan in fact was considered and every deviation has been explained. What had been an advisory plan to provide guidelines, to be accepted or rejected by each county and municipality, thus becomes a stricture binding the locality’s actions, unless it can prove specifically why each element has been rejected.
If we are to have state planning rather than local planning, let the Legislature say so, and let the political process proceed in due course. See N.J. Const, art. IV, § 6,f 2. The Legislature, however, has never imposed state or regional planning except in certain defined areas, such as utilities, waste management, or some areas of water policy. However, the Commissioner’s order in this case, as it is being implemented, appears to be the first trickle of a river that can wash away the concept of home rule in the area of planning and zoning.
I would not be filing this concurrence if the Commissioner had stated that the requirements noted in all of the letters to the municipalities (rather than just one) were in error or were mistakes made by lower-level regulators, and that the intention was not, as expressed in its letters, to require justification for departures from the State Plan.
The examples I have cited may have constituted the totality of the State’s incursion into the control of local planning, and perhaps there will be no requirement that the State Plan be a required consideration, increasing the costs of both developers and municipalities or counties. It may be that this is not the first step in a concerted plan, the proverbial camel’s nose under the tent of local planning. I would be more sanguine were it not for the similarity of the intentions expressed in the letters to Borough of Washington, Morris Township and Somerset County.
*106At this stage of the implementation of the State Plan, I cannot discern the direction of future state action with sufficient certainty so that I could vote to overturn an intra-agency order that by its terms recognizes the limitations of existing law. Were I to have seen a present burden being placed upon additional developers or local governments, or any indication that the failure to follow the comparisons apparently required by the letters quoted earlier would result in the rejections of applications, this concurring opinion would have been a dissent. See Woodland Private Study Group v. State Dept. of Envtl. Protection, 109 N.J. 62, 73-74, 533 A.2d 387 (1987). Possibly the majority also would then have questioned the authority of the State administrators to have exceeded their statutory authorization. I hope that I am wrong in my prediction of State policy, and I am willing to give DEP the benefit of the doubt and wait and see whether the Commissioner controls the implementation of his intra-agency order so that unauthorized onerous burdens are not placed upon local planning and development.
I therefore concur in the result reached by the majority in this case.