IN THE MATTER OF ADOPTION OF AMENDMENTS TO THE NORTHEAST UPPER RARITAN, SUSSEX COUNTY AND UPPER DELAWARE WATER QUALITY MANAGEMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5266-07T35266-07T3

A-5271-07T3

A-5990-07T3

A-5993-07T3

IN THE MATTER OF ADOPTION OF

AMENDMENTS TO THE NORTHEAST,

UPPER RARITAN, SUSSEX COUNTY

AND UPPER DELAWARE WATER

QUALITY MANAGEMENT PLANS TO

ESTABLISH TOTAL MAXIMUM DAILY

LOADS IN THE NON-TIDAL PASSAIC

RIVER BASIN AND POMPTON LAKE/

RAMAPO RIVER ADDRESSING

PHOSPHORUS IMPAIRMENTS AND

TO ESTABLISH WATERSHED CRITERIA.

___________________________________________________

 

Argued June 2, 2009 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from the New Jersey Department of Environmental Protection.

Diane Alexander argued the cause for appellants Pequannock, Lincoln Park & Fairfield Sewerage Authority, Hanover Sewerage Authority and Madison-Chatham Joint Meeting (Maraziti, Falcon & Healey, attorneys; Ms. Alexander and Heather A. Pierce, of counsel and on the joint briefs).

Robert A. Goodsell argued the cause for appellant Warren Township Sewerage Authority (Post, Polak, Goodsell, MacNeill & Strauchler, attorneys; Mr. Goodsell and Thomas J. Whitney, of counsel and on the joint briefs).

Jane F. Engel, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Engel, on the brief).

PER CURIAM

This is an appeal by four public bodies that are authorized to collect wastewater for treatment and discharge into the Passaic River Basin from the adoption by the Department of Environmental Protection (DEP) of amendments to the Northeast, Upper Raritan, Sussex County and Upper Delaware Water Quality Management Plans (WQMPs). These amendments established total maximum daily loads (TMDLs) limiting the amount of phosphorus, a nutrient that contributes to the growth of algae, that may be discharged into the Passaic River Basin. Appellants contend that the DEP was arbitrary and capricious in requiring them to comply with those stringent new limitations upon phosphorus content of their effluent during times of the year when such limitations are not required for maintenance of water quality in waterways located downstream from their facilities, in particular the Wanaque Reservoir operated by the North Jersey District Water Supply Commission (North Jersey). Appellants claim that the quality of water in the Wanaque Reservoir could be adequately maintained by the DEP only requiring compliance with the stringent new limits on the phosphorus content of their effluent on a seasonal basis (May through October) and any other period during which the North Jersey actually will be pumping water from the Passaic River into the Wanaque Reservoir, which appellants allege only occurs infrequently.

The issuance of TMDLs is governed by the federal Clean Water Act. 33 U.S.C.A. 1251-1387. The applicable federal regulations, 40 C.F.R. 123.1-.64, allow states to assume control of the federal program, but their programs must be at least as stringent as the federal program. See In re Freshwater Wetlands Prot. Act Rules, N.J.A.C. 7:7A-1.1 et seq., 238 N.J. Super. 516, 520 (App. Div. 1989). The Environmental Protection Agency (EPA) retains the right to review and approve state actions. 33 U.S.C.A. 1313(d)(2); see Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 907-08 (11th Cir. 2007).

The Clean Water Act and its implementing regulations require seasonal variations to be taken into account in establishing TMDLs. 33 U.S.C.A. 1313(d)(1)(C); see Friends of the Earth, Inc. v. Envtl. Prot. Agency, 446 F.3d 140, 143 (D.C. Cir. 2006), cert. denied, 549 U.S. 1175, 127 S. Ct. 1121, 166 L. Ed. 2d 907 (2007). The applicable EPA regulation states:

TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical [water quality standards] with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Determinations of TMDLs shall take into account critical conditions for stream flow, loading, and water quality parameters.

[40 C.F.R. 130.7(c)(1).]

The statutory provisions under which the DEP regulates water quality standards are the Water Quality Planning Act (WQPA), N.J.S.A. 58:11A-1 to -16, and the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -60. Pursuant to this authority, the DEP has adopted maximum allowable amounts of phosphorus that may be present in lakes and streams:

i. Lakes: Phosphorus as total P shall not exceed 0.05 [mg/L] in any lake, pond or reservoir, or in a tributary at the point where it enters such bodies of water, except where watershed or site-specific criteria are developed pursuant to N.J.A.C. 7:9B-1.5(g)3.

ii. Streams: Except as necessary to satisfy the more stringent criteria in paragraph i above or where watershed or site-specific criteria are developed pursuant to N.J.A.C. 7:9B-1.5(g)3, phosphorus as total P shall not exceed 0.1 [mg/L] in any stream, unless it can be demonstrated that total P is not a limiting nutrient and will not otherwise render the

waters unsuitable for the designated uses.

[N.J.A.C. 7:9B-1.14(d)(5).]

The applicable regulations also authorize the establishment of site-specific modifications of these basic standards:

The [DEP] may establish watershed or site-specific water quality criteria for nutrients in lakes, ponds, reservoirs or streams, in addition to or in place of the criteria in N.J.A.C. 7:9B-1.14, when necessary to protect existing or designated uses.

[N.J.A.C. 7:9B-1.5(g)(3).]

In 1987, the DEP issued a special report, entitled "Passaic River Water Quality Management Study," which recommended that a detailed nutrient study be conducted to determine the maximum amount of phosphorus that sewage treatment plants should be allowed to discharge into the Passaic River. The DEP subsequently adopted interim standards for the phosphorus content of effluent discharged into the river and undertook extensive studies to determine appropriate long-term standards, which culminated in the adoption of the amendments to WQMPs that are challenged in this appeal. The process that resulted in the adoption of these WQMPs included studies by a private consulting firm and by a panel of university professors, comments by technical and public advisory committees, and public hearings.

On April 24, 2008, the DEP adopted amendments to the Northeast, Upper Raritan, Sussex County, and Upper Delaware WQMPs establishing TMDLs for phosphorus in the Passaic River Basin, and on July 31, 2008, the EPA approved the Passaic River Basin TMDLs.

The Pequannock, Lincoln Park and Fairfield Sewerage Authority, Warren Township Sewerage Authority, Hanover Sewerage Authority and Madison-Chatham Joint Meeting filed separate notices of appeal challenging these TMDLs. We consolidated the appeals, and the appellants have filed a joint brief.

Before discussing appellants' arguments, we note that compliance with the new more stringent limitations upon the phosphorus content of the effluent discharged by appellants will require the installation of substantial capital improvements that will take many years to design and construct. Before being required to install these improvements, appellants and other dischargers will be afforded an opportunity to participate in a Water Quality Trading Program. As explained in the DEP's brief:

A trading program allows the point sources to trade among themselves or with [North Jersey]. Some dischargers who are able to reduce phosphorus to levels below their allocated levels may sell their excess capacity to other dischargers. Alterna-tively, one or more dischargers may negotiate an agreement with [North Jersey] to achieve required load reduction. The Water Quality Trading program for the non-tidal Passaic River Basin has not yet been finalized. DEP expects to propose the trading proposal for public comment in Spring 2009. Upon approval by DEP and EPA, trades negotiated in accordance with this trading program can be incorporated into NJPDES permits.

Appellants and other dischargers will not be required to apply for the NJPDES permits required for installation of the capital improvements that will enable them to reduce the phosphorus content of their effluent until after they have been given sufficient time to participate in this trading program. Appellants estimate that it will take another three to five years after they obtain such permits to complete the installation of those capital improvements. Therefore, it appears that appellants and other dischargers subject to the WQMPs challenged in this appeal will not be able to achieve compliance with the new phosphorus standards for at least another five years.

I.

The "Total Maximum Daily Load Report for the Non-Tidal Passaic River Basin Addressing Phosphorus Impairments" (PRBTMDL Report) adopted by the DEP on April 24, 2008 recognizes that "[t]he summer season is the critical period for biological activity, algae blooms and associated oxygen effects" caused by an excessive amount of phosphorus in water. PRBTMDL Report, supra, at 38-39. The report concludes that parties who discharge into the Passaic River Basin below the point where water is diverted into the Wanaque Reservoir are not required to adhere to the stringent new limitations upon the phosphorus content of their effluent from November through April because the lake into which the river flows downstream of this point, Dundee Lake, is "riverine" in nature:

At the Dundee Lake critical location, the critical period is during the growing season. Simulations indicate that phosphorus reductions from wastewater treatment facilities outside the months of May through October have no effect on the observed seasonal average chlorophyll-a levels, due to the riverine nature of Dundee Lake. Therefore, below the confluence of the Pompton and Passaic Rivers, seasonal effluent limits (May through October) are consistent with achieving the watershed criterion for Dundee Lake.

[Id. at 39.]

However, the report concludes that parties who discharge effluent upstream of the diversion point must adhere to the stringent new phosphorus limitations on a year-round basis because of the deleterious effect of phosphorus upon the quality of water in the Wanaque Reservoir: "[W]inter and early spring are the times when, due to diversions from the Pompton and Passaic Rivers, phosphorus loadings to the Wanaque Reservoir are usually highest. As a result, load reductions must be required year-round for sources that contribute loads to the Wanaque Reservoir." Ibid.

Appellants do not dispute that the stringent new phosphorus limitations must be maintained with respect to any effluent discharged into the Passaic River during any period when water may be diverted into the Wanaque River. However, appellants claim that such diversions during the off-season months from November through April occur infrequently and that North Jersey could notify appellants and other upstream dischargers of its intent to divert water into the reservoir a sufficient time in advance to permit them to reduce the phosphorus content of their effluent before the diversion occurs.

Appellants and other upstream dischargers presented comments regarding the DEP's proposed amendments to the Northeast, Upper Raritan, Sussex County and Upper Delaware WQMPs, which asserted their position that the new phosphorus limitations should apply only from May through October and when North Jersey plans to divert water into the reservoir. One commenter stated:

Seasonal limits have been found to be sufficiently protective of the river, yet phosphorus removal on a year-round basis has been imposed on dischargers upstream of the reservoir intake. Seasonal limits, either tied to the use of the Wanaque South Pumping Station, or a reservoir level, would be sufficiently protective of the environment and would result in a significant cost savings to the public and decreased pollutant load to the environment. The [DEP] has imposed additional requirements upon dischargers without regard to whether the discharge is being pumped into the reservoir. The determination to treat effluent when water is not transferred to the reservoir must be revisited. Treating effluent to meet a limitation that is not appropriate is a waste of public funds and results in the use of chemicals that increases sludge production and total dissolved solid discharges. The [DEP] should have reviewed and offered for public comment its consideration of the option of seasonal phosphorus control during periods when [North Jersey] is not pumping water from the Passaic River Basin into the Wanaque Reservoir. Seasonal effluent limits should be applied to dischargers upstream of the Wanaque South Pump Station because of the intermittent but predictable diversion of water to the Wanaque Reservoir.

[ 40 N.J.R. 2591 (May 19, 2008).]

Another commenter stated:

The [DEP] has failed to provide relief from stringent limits during periods when phosphorus control cannot provide a benefit to the Wanaque Reservoir. Strict adherence to year round phosphorus removal does not bear any relationship to goal of protecting the Reservoir. Treating effluent to meet a limitation that is not appropriate is a waste of public funds and results in the use of chemicals that are not warranted. Chemical precipitation and additional TDS and sludge production can be avoided through judicious establishment of compliance levels, tied to the use of the Wanaque South pump station or a reservoir level, to achieve benefit at cost savings to the public. The [DEP] should have reviewed and offered for public comment its consideration of the option of seasonal phosphorus control during periods when [North Jersey] is not pumping water from the Passaic River Basin into the Wanaque Reservoir.

[ 40 N.J.R. 2591-92.]

The DEP summarily rejected these comments, stating:

[T]he [DEP] believes seasonal limits are only appropriate for discharges below the confluence of the Pompton and Passaic River. Tying effluent limits to an unpredictable pumping regimen outside the control of the regulated entity is institutionally impracticable.

[ 40 N.J.R. 2592.]

The DEP did not explain what it meant by "institutionally impracticable." Furthermore, even though the DEP has compiled an extensive documentary record supporting its adoption of the stringent new limitations upon the phosphorus content of the effluent discharged into the Passaic River Basin, there is no indication that any of the studies upon which these limitations were based addressed the specific question of the feasibility of the limitations applying to dischargers upstream of the diversion point into the Wanaque Reservoir only on a seasonal basis.

Because appellants acknowledge that they must adhere to the new limitations upon the phosphorus content of their effluent any time during the off-season when North Jersey may divert water from the Passaic River into the Wanaque Reservoir, the feasibility of generally requiring adherence to those limitations only from May through October depends on the answer to two questions. First, how long in advance can North Jersey reasonably be expected to know of the need for an off-season diversion? Second, how much advance notice of a proposed diversion will appellants and other dischargers require in order to bring the level of phosphorus in their effluent into compliance with the new strict phosphorus limitations during the off-season?

Regarding the first question, the DEP asserts in its brief filed with this court that the time required for North Jersey to know of the need for a diversion "cannot be predicted since it varies based on usage and short and long-term hydrologic conditions that are impacted by the amount of water storage in the interconnecting storage reservoirs and rivers throughout the State." The DEP's brief also asserts:

Even if, for the sake of argument, it were possible to know weeks in advance that pumping would be needed, such pumping is not within the control of the dischargers, or DEP, but of [North Jersey], which for security or other reasons may not want to disclose detailed information concerning its operations, let alone weeks in advance.

However, there is no support in the administrative record for either of these assertions.

Regarding the second question, appellants apparently failed to present any evidence to the DEP regarding the lead-time they would require to reduce the phosphorus content of their effluent during the off-season to comply with the strict new phosphorus limitations. However, appellants' counsel represented at oral argument that this time would be approximately two weeks.

Thus, it would appear that if North Jersey can reasonably anticipate the need for diversion of water from the Passaic River into the Wanaque Reservoir at least two weeks in advance, appellants and other upstream dischargers would be able to reduce the phosphorus content of their effluent before the diversion starts.

"Although a challenge to the validity of an administrative regulation is ordinarily determined based solely on the record developed before the agency in considering adoption of the regulation, a court has the authority to remand for supplementation of the record, including the conduct of an evidentiary hearing, if it concludes that such proceedings are required for a proper determination of the challenge." In re Highlands Water Prot. & Planning Act Rules, N.J.A.C. 7:38-1 et seq., 401 N.J. Super. 587, 595 (App. Div. 2008) (citations omitted).

This is an appropriate case for such a remand. The DEP rejected appellants' request to adopt amendments to the challenged WQMPs that would require them to comply with the strict new phosphorus limitations during the off-season only when North Jersey plans to divert water based on the DEP's conclusionary statement that such seasonal limits would be "institutionally impracticable." However, the practicality of this proposal depends on whether North Jersey can predict the need for diversion of water from the Passaic River a sufficient time in advance for the upstream dischargers to reduce the phosphorus level of their effluent before the diversion occurs. This is a factual issue which is an appropriate subject for an evidentiary hearing. In addition, appellants' claim that the actions required to reduce the phosphorus content of their effluent will create adverse environmental impacts, such as the generation of additional sludge and the discharge of other chemicals into the waterway, which should be avoided during periods when there is no need to reduce the amount of phosphorus, also raises factual issues that are appropriate for resolution at an evidentiary hearing.

Finally, we note that a remand for an evidentiary hearing regarding the appropriateness of seasonal limits on the phosphorus content of effluent discharged into the Passaic River Basin above the diversion point for the Wanaque Reservoir should have no effect upon the DEP's implementation of the amendments to the Northeast, Upper Raritan, Sussex County and Upper Delaware WQMPs challenged in this appeal. As previously discussed, the required reduction in the phosphorus content of effluent will require the installation of substantial capital improvements that will take many years to design and construct. Those capital improvements will be required irrespective of whether appellants are required to reduce the phosphorus content of their effluent year-round or only on a seasonal basis. Therefore, this remand should not delay the capital improvements.

II.

Appellants argue in a second point of their brief that the DEP violated the Administrative Procedure Act (APA), N.J.S.A. 52:4B-1 to -24, by denying them access to all the data, studies and reports the DEP relied upon in establishing the new phosphorus limits for the Passaic River Basin.

It is unclear whether appellants seek by this argument to invalidate in their entirety the amendments to the Northeast Upper Raritan, Sussex County and Upper Delaware WQMPs reducing the allowed phosphorus content of discharges into the Passaic River or whether this argument is only ancillary to appellants' challenge to the DEP's refusal to establish seasonal limits on the phosphorus content of discharges upstream of the Wanaque Reservoir diversion point. At one point in their reply brief, appellants argue:

If the model or calibration data were found to be suspect for any reason, it would necessarily mean that the [DEP's] conclusions regarding the required water quality in the Wanaque Reservoir would be suspect as well; this would mean [the DEP] could no longer validly claim scientific support for that portion of the TMDL which is intended to protect water quality in the off-season.

This statement suggests that appellants are challenging the DEP's alleged failure to disclose certain of the documentation relied upon to support adoption of the amendments to the WQMPs solely in support of their challenge to the DEP's refusal to adopt seasonal limits. However, other parts of appellants' brief seem to indicate that they are arguing that the amendments as a whole must be invalidated because the DEP allegedly denied access to certain documents.

Insofar as appellants seek access to additional documentation relating to the basis of DEP's refusal to establish seasonal limits on the phosphorus content of their effluent, appellants may seek those documents by appropriate discovery requests on remand. However, insofar as appellants seek to invalidate the amendments as a whole based on the DEP's alleged withholding of documents, we reject the argument and sustain the validity of the amendments except with respect to the refusal to establish seasonal limits.

The record indicates that the amendments establishing the strict new phosphorus limitation were adopted after years of studies and reports by private consulting firms and academicians. Those reports and studies and substantial supporting data were made available to interested parties. There was substantial participation by members of the public and other interested parties, including appellants, in the adoption of these new phosphorus limitations, which included public meetings and extensive written submissions.

Appellants' submission regarding the data allegedly withheld by the DEP, and its significance to their challenge of the new phosphorus limitations, is extremely vague. Moreover, this data is only relevant in determining the reliability of the "LA-WATERS model" to predict pollutant loads in the Wanaque Reservoir, which has been extensively peer-reviewed and which appellants concede "is an appropriate model for use in predicting water quality impacts on the Wanaque Reservoir." Therefore, in view of the strong presumption of validity of administrative regulations relating to technical subjects such as the maximum allowable phosphorus content of effluent, see Lourdes Med. Ctr. of Burlington County v. Bd. of Review, 197 N.J. 339, 376 (2009), we perceive no realistic possibility that the additional underlying data appellants claim they were unable to obtain from the DEP would provide a factual foundation for challenging those phosphorus limitations.

Accordingly, we remand the case to the DEP to transfer to the Office of Administrative Law for an evidentiary hearing to determine the appropriateness of seasonal limits upon the phosphorus content of discharges into the Passaic River upstream of the Wanaque Reservoir diversion point. Jurisdiction is retained. This remand shall be completed by January 29, 2010. We uphold the validity of the amendments to the WQMPs establishing the phosphorus limits in the Passaic River Basin in all other respects.

 

A "limiting nutrient" is defined as "a nutrient whose absence or scarcity exerts a restraining influence upon an aquatic biological population." N.J.A.C. 7:9B-1.4.

The record indicates that there are a total of twenty-six such dischargers.

The DEP asserts in a footnote, without any supporting explanation, that "a TMDL is not a rule under the strict requirements of the APA." We question the correctness of this assertion. See Toll Bros. Inc. v. State of N.J., Dep't of Envtl. Prot., 242 N.J. Super. 519, 527-28 (App. Div. 1990). However, the issue does not need to be resolved in order to decide this appeal because a remand for an evidentiary hearing would be appropriate regardless of whether the DEP's action constituted rule-making within the intent of the APA.

(continued)

(continued)

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A-5266-07T3

July 21, 2009