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The New Jersey Surface Water Quality Standards Summary of Potential Headaches By William T. Hall and John C. Hall, Hall & Associates The Department of Environmental Protection ("DEP" or the "Department") adopted its draft 2005 Surface Water Quality Standards ("SWQS," N.J.A.C. 7:9B) in October 2006 with little or no changes to the original draft despite the detailed comments submitted by AEA. The summary below identifies critical areas of the revised SWQS that, unless challenged, are likely to adversely impact member authorities when individual NJPDES permits come up for renewal. Total Phosphorus Phosphorus tops the list of potential problem parameters. The Department did not make any changes to its phosphorus standard as part of the revisions to N.J.A.C. 7:9B. Rather, it has reinterpreted what constitutes "unsuitable for designated uses" to mandate restrictive total phosphorus ("TP") limits for individual dischargers. This was done through development of the Technical Manual for Phosphorus Evaluation in March 2003. This Technical Manual, which did not undergo public notice and comment, sets forth new instream objectives that serve as "de facto" water quality standards. The Technical Manual identifies instream objectives for several parameters (i.e., algae and periphyton, diurnal dissolved oxygen change, and pH change) that, if not achieved, authorize the Department to apply the 0.1 mg/L TP standard to calculate effluent limitations for stream dischargers. In addition, even if all of these "impairment" objectives are achieved, the phosphorus water quality standard will be applied if the Department determines that phosphorus is a limiting nutrient in accordance with the new definitions found in the Technical Manual. This approach is a stark reversal of the approach used by the Department as the basis for the existing phosphorus standard. Through a long term dialogue with AEA, the Department confirmed this previous approach required DEP to confirm impairment before imposing stringent limitation stating, "This approach ensures that dischargers, and others, are not forced to reduce the discharge of phosphorus into the water, only to find that existing problems do not improve." See 34 N.J.R. 570. The new approach imposes TP limits without evidence of impairment. Further, this permitting approach never underwent rule adoption in derogation of state APA requirements. The Technical Manual attempts to identify what constitutes a detrimental effect, but it never provides a rational as to why a certain level of periphyton or a change in dissolved oxygen or pH (within the acceptable SWQS for those parameters) is considered to impair designated uses. Most literature on the subject state these are not impairment levels. More outrageously, even if these secondary effects are within the Technical Manual criteria (i.e., there is no problem), the Department assumes a phosphorus-related problem exists if it is determined to be the limiting nutrient. Currently, several member authorities are appealing permits with restrictive TP limits based on the new policy and imposition of the TP Manual requirements. In these cases, the water quality-based TP limits have been derived under drought flow conditions, even though the "de facto" criteria reflect growing season average conditions. Several of these facilities have conducted detailed instream studies in accordance with the Technical Manual, documenting compliance with the "de facto" criteria but the Department still has not accepted these studies. Additionally, the Department has refused to grant stay requests while these permits are being appealed, thus forcing these facilities to proceed with planning for facility upgrades even though the phosphorus reductions required by the permit will not result in water quality improvements. Inter-Basin Transfers The Department is allowing inter-basin transfers of water without requiring an antidegradation review or permit to address adverse environmental impacts associated with this action. Under DEP's approach, which has been overturned by several federal circuit courts, upstream dischargers on one watershed may have restrictive TMDL-based limits imposed on them due to impairments occurring on the other watershed, even if the impairment is caused by the inter-basin transfer. This is particularly troublesome with regard to phosphorus. If a water purveyor withdraws water from a stream in one watershed and discharges it to another watershed via a lake, the upstream dischargers will face more restrictive TP limits based on the 0.05 mg/L lake criterion. The draft Wanaque TMDL is an example of that situation. Metals With regard to metals, AEA asked DEP to set a default water effect ratio ("WER") for copper at 3.0 for municipal dischargers, but DEP indicated it had no evidence to support such an approach. Contrary to the Department's position, EPA had sufficient data to develop a simplified approach to developing WERs for copper associated with municipal discharges. These data fully supported such an approach as copper WERs are virtually always greater than 3 for municipal dischargers. Even though the Department did not grant the default WER, facilities have the option of conducting a WER study to obtain relief since the metals standards provide for a WER adjustment. However, the Department has never granted such an adjustment. The Department has not approved a work plan for such studies nor has it approved test results based on EPA procedures. Subsequent to submitting comments, another error in the way metals limitations are developed was noted. For most metals, the metals SWQS are based on the dissolved fraction of the metal while permit limits must be specified for the total recoverable form of the metal. Because of this difference, a translator must be determined to convert from one form of the metal to the other. When the SWQS were revised, the Department adopted revised translators for several metals based on the approach used by the DRBC. The DRBC translators convert the water quality standards from the total recoverable form to the dissolved form, which is then used to calculate a dissolved water quality-based effluent limit. This limit is then converted back to the total recoverable form using the original EPA translators. Since the two sets of translators are different, the calculation results in more restrictive limits than originally intended by EPA. DEP regulations do allow development of site-specific translators, which are likely to become standard practice given the results of DEP's action. Arsenic The Department also failed to address problems with its arsenic water quality standard. Arsenic is a human carcinogen, and the water quality standard, 0.018 ppb, is based on daily exposure over a 70-year exposure period. As it now stands, arsenic in surface waters is more restrictively regulated than arsenic in tap water (the drinking water standard for arsenic is 3 ppb) based on human health concerns for the ingestion of water (about 200 times less restrictive). Since arsenic removal at a POTW is very minor, acceptable drinking water sources may cause the POTW to exceed the instream standard. This will force POTWs to regulate drinking water sources to eliminate the arsenic source. This is clearly not intended by state or federal law. DEP's approach is completely unnecessary to protect public health. The DEP approach sets highly restrictive stream standards based on the assumption that a person may consume untreated surface water every day for the entire exposure period. This does not occur. To make matters worse, the Department has also modified the standard from regulating inorganic arsenic to total arsenic. Given its extremely low human health standard, if the Department determines there is a reasonable potential to exceed the standard, the resulting water quality-based effluent limit will be set at the threshold for detection for most dischargers. Fish Consumption Finally, the Department has adopted more restrictive fish consumption standards that will affect all water quality standards tied to such consumption, typically carcinogens. Based on recommendations from EPA, DEP is now using a fish consumption standard that is three times lower than the previous standard. The problem with the standard is that it is based on long term, daily fish consumption. Such consumption cannot be supported by small streams and low flow rivers since these habitats are not sufficient to support large populations of top predators (the basis for the human health standard). However, the water quality standards do not distinguish between such habitats. Since low flow streams are more likely to encounter elevated concentrations due to the lack of dilution water, these systems are more likely to fall subject to fish consumption-based standards even though such streams cannot cause the assumed exposure. Extremely restrictive limits, completely unrelated to environmental need, will again be derived. Summary Based on the discussion above, it is clear that the approach being taken by DEP is more restrictive than necessary to protect designated uses. As a result, wastewater treatment facilities will be required to incur significant additional liability and cost without obtaining any measurable benefit. The only recourse for these facilities is to challenge the restrictive limits in court, as the Department has not expressed a willingness to consider scientifically justified, alternative conditions. The above campaign is just one example of a water management district that has great vision and a very progressive board and staff. Behavior modification through social marketing can take some time and long-term messaging is one of just few ways to make new behaviors socially acceptable. It can take years and policymakers may have to accept that. Many people feel an entitlement and believe they deserve to consume any and all resources regardless of their socio-economic status. It's hard to get people to realize that water conservation is important. A well planned and orchestrated, broad-based media communications campaign is the best way to hasten behavioral change and is a cost efficient the way to reach the broadest audience. The success of any social marketing plan in any industry is a matter of educating the public about needs and solutions in a way that conveys ownership. Remember, the heart of social marketing is using traditional advertising and marketing strategies to bring lessons to the public. The lesson must communicate the notion that we will all benefit if we all participate in a positive behavior change. For more information about social
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