On appeal from the New Jersey Department of Environmental Protection.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
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*fn1 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 ...