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Tuesday, June 17, 2014

05/15/14 IN THE MATTER OF ADOPTION OF AMENDMENTS TO THE NORTHEASTUPPER RARITAN ET AL. A-3236-10TI/A-5271-07T3/A-5990-07T3/A-5993- 07T3


05/15/14 IN THE MATTER OF ADOPTION OF AMENDMENTS TO THE
NORTHEASTUPPER RARITAN ET AL.
A-3236-10TI/A-5271-07T3/A-5990-07T3/A-5993- 07T3(CONSOLIDATED CASE)
     In 2008, the Department of Environmental Protection (DEP) adopted amendments to its Northeast, Upper Raritan, Sussex County, and Upper Delaware Water Quality Management Plans (WQMPs). Those amendments established total maximum daily loads limiting the amount of phosphorus, a nutrient that contributes to the growth of algae, discharged into the Passaic River. Appellants Pequannock, Lincoln Park and Fairfield Sewerage Authority, Hanover Sewerage Authority, Madison-Chatham Joint Meeting, and Warren Township Sewerage Authority collect municipal wastewater for treatment, after which they discharge the treated water into the Passaic River.     Respondent North Jersey   District  Water Supply Commission (North Jersey), which operates the Wanaque Reservoir downstream from appellants, sometimes pumps water from the Passaic River into the reservoir.
     Appellants challenged the WQMPs in an earlier appeal. We affirmed as to most issues, but remanded for a determination  as  to whether it was institutionally practicable for the WQMPs to require strict compliance by respondents and other upstream treatment facilities from May through October only, with treatment at other times on an as-needed basis when North Jersey plans to divert water from the Passaic River to the Wanaque Reservoir. We retained jurisdiction.
     Following an evidentiary hearing, an administrative law judge concluded that an off-season, as-needed treatment plan was institutionally practicable. The DEP Commissioner disagreed  and  determined to  the  contrary.  Following further briefing and oral argument, we affirmed the Commissioner. After giving the required deference to the Commissioner's expertise, we found that his decision was not arbitrary, capricious, or unreasonable, and it that it was supported by substantial credible evidence in the record as a whole.