Del. Riverkeeper Network v. N.J. Dep't of Envtl. Prot.
| Decision Date | 18 March 2020 |
| Docket Number | DOCKET NOS. A-1821-17T3,A-1889-17T3 |
| Citation | 463 N.J.Super. 96,229 A.3d 875 |
| Parties | DELAWARE RIVERKEEPER NETWORK, and Maya Van Rossum, Delaware Riverkeeper, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent. Stony Brook-Millstone Watershed Association, Save Barnegat Bay, Raritan Headwaters Association, NY/NJ Baykeeper, Hackensack Riverkeeper, and Association of New Jersey Environmental Commissions, Appellants, v. New Jersey Department of Environmental Protection, Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Edward L. Lloyd argued the cause for appellants Delaware Riverkeeper Network, Maya Van Rossum, Delaware Riverkeeper, Stony Brook-Millstone Watershed Association, Save Barnegat Bay, Raritan Headwaters Association, NY/NJ Baykeeper, Hackensack Riverkeeper and Association of New Jersey Environmental Commissions in A-1821-17 (Columbia Law Environmental Clinic, Morningside Heights Legal Services, attorneys; Edward L. Lloyd and Susan J. Kraham, of counsel and on the briefs).
Eastern Environmental Law Center, Newark, attorneys for appellants Stony Brook-Millstone Watershed Association, Save Barnegat Bay, Raritan Headwaters Association, NY/NJ Baykeeper, Hackensack Riverkeeper and Association of New Jersey Environmental Commissions in A-1889-17 (Dan Greenhouse and Aaron Kleinbaum, Newark, of counsel and on the briefs; Raghava Murthy, on the briefs).
Jacobine K. Dru, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Jacobine K. Dru and Stephanie Raye Carney, Deputy Attorney General, on the brief).
Before Judges Koblitz, Gooden Brown and Mawla.
The opinion of the court was delivered by
KOBLITZ, P.J.A.D.
The New Jersey Department of Environmental Protection (DEP)1 issued a renewal of the Tier A2 municipal separate storm sewer system (MS4) New Jersey Pollutant Discharge Elimination System (NJPDES) general permit on November 9, 2017 (the MS4 permit). The permit authorizes the discharge of stormwater from MS4s owned or operated by approximately 457 Tier A municipalities.
In this consolidated appeal,3 Delaware Riverkeeper Network, Maya Van Rossum and Delaware Riverkeeper in one appeal, and Stony Brook-Millstone Watershed Association, Save Barnegat Bay, Raritan Headwaters Association, NY/NJ Baykeeper, Hackensack Riverkeeper and Association of New Jersey Environmental Commissions in the other (collectively appellants), challenge the issuance of the MS4 permit claiming that it does not comply with federal and state law. They maintain that the permit does not include effluent limits and monitoring as required by federal law, and that the DEP's inclusion of best management practices (BMPs) rather than effluent limits was a further violation of applicable law. Appellants also argue that the permit requirements are neither "clear, specific, and measurable," nor provide for meaningful review and that the DEP violated federal law by issuing permits without the public's involvement. Acknowledging our deferential standard of review, we affirm the final agency decision.
Under the Clean Water Act (CWA), the discharge of pollutants is illegal. 33 U.S.C. § 1311. Through the National Pollution Discharge Elimination System (NPDES), 33 U.S.C. § 1342, either the Environmental Protection Agency (EPA) or an EPA-approved state, such as New Jersey, may issue permits exempting a discharge from this prohibition. The state program must meet specific requirements, including incorporating certain provisions of the NPDES regulations, and must be approved by the EPA. Ibid.; EPA State Program Requirements, 40 C.F.R. § 123.25(a)(15) (2019) ; EPA Administered Permit Programs: The National Pollutant Discharge Elimination System, 40 C.F.R. § 122.44 (2019). If NPDES permitting authority is transferred to an approved state, then state officials, not the EPA, have the primary responsibility for reviewing and approving the permits, "albeit with continuing EPA oversight." Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).
As an EPA-approved state, New Jersey must set water quality standards by first assigning a "use" to a navigable body of water, such as propagation of fish or recreational purposes, and then developing criteria to protect that use and ensure that higher quality waters do not degrade to the minimally accepted standard. 33 U.S.C. § 1313(c)(2)(A) ; N.J.A.C. 7:9B-1.5(a)(6), (d)(1)(v); N.J.A.C. 7:9B-1.12. All water quality standards are subject to EPA review. 33 U.S.C. § 1313(a), (b). The criteria assigned to bodies of water are expressed in either "constituent concentrations, levels, or narrative statements." EPA Water Quality Standards, 40 C.F.R. § 131.3(b) (2019) ; N.J.A.C. 7:9B-1.4. "When the criteria are met, water quality will generally protect the designated use." N.J.A.C. 7:9B-1.4.
In 1987, Congress amended the CWA to require NPDES permits for MS4 stormwater discharge. 33 U.S.C. § 1342(p). An MS4 is a conveyance or system of conveyances owned or operated by a municipality that carries stormwater that ultimately discharges to waters of the state (including both surface water and groundwater). N.J.A.C. 7:14A-1.2. An MS4 includes curbs, gutters, ditches, manmade channels, storm drains, catch basins, municipal streets or roads with drainage systems that are not combined sewers and are not part of a publicly owned treatment works such as a sewage treatment system. 40 C.F.R. § 122.26(b)(8) ; N.J.A.C. 7:14A-1.2.
The EPA identifies stormwater discharge as a significant source of water pollution. See, e.g., 40 C.F.R. § 122.30(c). Stormwater discharge is generated when rain or melting snow "flow[s] over land or impervious surfaces, such as paved streets, parking lots, and building rooftops, and does not soak into the ground." EPA, NPDES Stormwater Program, https://www.epa.gov/npdes/npdes-stormwater-program (last visited Feb. 11, 2020). MS4 stormwater discharges are regulated through federal and state rules. 33 U.S.C. § 1342(p) ; 40 C.F.R. § 122.26 ; N.J.A.C. 7:14A-25.1 to - 25.10.
The EPA takes a two-phased approach to implementing a program to address stormwater discharges. 33 U.S.C. § 1342(p)(4). Phase II, applicable here, addresses requirements for small MS4s serving a population of less than 100,000. 40 C.F.R. §§ 122.26, 122.34. Separate storm sewer systems such as those serving military bases, universities, large hospitals or prison complexes, and highways are also included in the definition of a "small MS4." Id. § 122.26(b)(16). The DEP implemented NJPDES Phase II rules in its regulations. N.J.A.C. 7:14A-6.2(b)(1).
Municipal stormwater discharge is "highly intermittent," "usually characterized by very high flows occurring over relatively short time intervals," and "depend[s] on the activities occurring on the lands." National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,038 (Nov. 16, 1990) (codified at 40 C.F.R. § 122.26 ). It is difficult to discern the amount of pollutant that any one discharger contributes to a body of water because municipalities have so many outfalls, or discharge points, leading into the waters. See 40 C.F.R. § 122.26(b)(5), (9) (). Because of the nature of municipal stormwater discharges, Congress adopted a flexible approach to the control of pollutants in MS4s. See NPDES Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. at 48,038.
The federal rules require that NPDES permits issued to small MS4s include "clear, specific, and measurable terms" to "reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the [CWA]." 40 C.F.R. § 122.34(a). "Such terms and conditions may include narrative, numeric, or other types of requirements (e.g., implementation of specific tasks or [BMPs], BMP design requirements, performance requirements, adaptive management requirements, schedules for implementation and maintenance, and frequency of actions)." Ibid.
The NPDES permit must also include requirements that the permittee develop a written stormwater management program (SWMP) documenting in detail how it intends to comply with the permit's requirements for each of the six "minimum control measures." Id. § 122.34(b). They are: (1) "public education and outreach on stormwater impacts"; (2) "public participation [and] involvement"; (3) "illicit discharge detection and elimination"; (4) "construction site stormwater runoff control"; (5) "post-construction stormwater management in new development and redevelopment"; and (6) "pollution prevention [and] good housekeeping for municipal operations." Ibid.; N.J.A.C. 7:14A-25.6(b).
If seeking coverage under a general permit issued by the NPDES permitting authority, as in this case, a small MS4 must submit a notice of intent (NOI) describing what minimum measures it will implement, and include a description of the BMPs to be implemented and the measurable goals for each of the BMPs, including timing and frequency. 40 C.F.R. §§ 122.33(b)(1)(i), 122.34(b)(5)(i)(c). BMPs are a control or effluent limitation in MS4 permits. See id. § 122.44(k)(2).
In 2016, the EPA revised its MS4 regulations to address the Ninth Circuit's partial remand of stormwater Phase II regulations. National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand Rule, 81 Fed. Reg. 89,320 (Dec. 9, 2016) (codified at 40 C.F.R. § 122) (citing Envtl. Def. Ctr. Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ). The final rule established two alternative approaches to issuing NPDES general permits for small MS4s: the ...
To continue reading
Request your trial