In an effort to reduce phosphorus in the state’s rivers and streams, the New Jersey Department of Environmental Protection (NJDEP) has proposed amendments to several regional water quality management plans, which could have significant future impacts for municipalities statewide.  If adopted in their current form, the amendments would have immediate financial consequences for municipalities located adjacent to affected surface waters in Northern New Jersey.  For example, the Pequannock, Lincoln Park, and Fairfield Sewerage Authority, which filed suit against NJDEP seeking access to documents, claims that the proposed rule would cost the authority between $16 and $25 million to implement.  This lawsuit reportedly is the subject of settlement discussions, which if fruitful would result in the release of the requested information and a re-opening of the public comment period.

Goal of the Proposed Limits on Phosphorus

The proposed regulations are designed to improve the quality of water in streams where the water presently is degraded and does not meet the current standard for phosphorus.  These standards are required by the federal Clean Water Act.  They set numeric limits for point source discharges of phosphorus as well as total maximum loads (“TMDL”) of phosphorus for improved waters, and an ongoing planning process for water quality protection.  (The New Jersey water quality standard for phosphorus in freshwater streams ranges from 0.05 mg/l to 0.1 mg/l, depending on the type of water body.)

Pursuant to federal Clean Water Act requirements, New Jersey has been busy over the past several years identifying for the United States Environmental Protection Agency (USEPA) the streams and lakes in New Jersey that do not meet surface-water quality standards.  Based on this investigation, New Jersey identified many stream segments in New Jersey that fail to meet the surface water quality standard for phosphorus.

Phosphorus is a naturally-occurring element.  Common sources of phosphorus in surface water are:  run-off from fields and lawns where fertilizer has been applied, or where animal wastes are stored; effluent from septic systems and wastewater treatment plants due to phosphate in human waste and in commercially-available detergents; soil erosion (erosion releases naturally-occurring phosphorus that is bound in soil particles); industrial discharges; phosphate mining; and drinking-water treatment (some drinking waters are treated with phosphorus-containing materials).

Excessive phosphorus in surface water can cause algal or plant overgrowth, commonly referred to as eutrophication.  The proposed amendments seek to rectify this by limiting the daily discharge of phosphorus into each stream. 

Phosphorus is generated by both point source dischargers (e.g., wastewater and industrial treatment plants) and non-point sources (e.g., failing or inappropriately located septic systems; unregulated stormwater, run-off from farms, yards, streets, parking lots).  A phosphorus TMDL can be achieved by decreasing the amount of phosphorus that enters a stream through either point sources or nonpoint sources.

After it has set a TMDL for a given stream, the NJDEP must decide who is going to bear the cost and responsibility for reducing the amount of phosphorus that ends up in the stream.  This process is called waste load allocation. 

Because point sources in New Jersey are generally already regulated by discharge permits (“NJPDES” permits) issued under the New Jersey Water Pollution Control Act, NJDEP has focused its proposed regulation on point source rather than non point source dischargers.

From a municipal perspective the question is whether this is fair.  Many of the sewerage authorities in the Passaic that operate wastewater treatment plants question whether other methods of reducing phosphorus or treating algal growth are preferable.  Among the questions they are positing is whether it is economically equitable to ask downstream point source dischargers to bear the cost for treating phosphorus derived from upstream nonpoint sources.  They are asking the state to demonstrate that there is adequate science to substantiate the proposed rulemaking and to justify the cost to the wastewater treatment plants.  Some of these authorities are also suggesting that the consequences of treatment could result in effluent containing increased total dissolved solids and hazardous metals, and the production of increased quantities of sewage sludge, possibly containing hazardous materials.

With the anticipated reopening of the public comment period and change in administrations there is uncertainty as to what compromises may ensue.  Also up in the air is when and whether the state will finalize this proposed rule change, or propose similar changes to water quality management plans in other parts of the state.   Stay tuned.

Pamela S. Goodwin is a Partner in Saul Ewing's Environmental Department and serves as the Princeton office Managing Partner. Ms. Goodwin is also the Chair of the Clean Water Council of New Jersey.