DELAWARE RIVERKEEPER NETWORK VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION STONY BROOK-MILLSTONE WATERSHED ASSOCIATION VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEPARTMENT OF ENVIRONMENTAL PROTECTION) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-1821-17T3
A-1889-17T3

DELAWARE RIVERKEEPER
NETWORK, and MAYA VAN APPROVED FOR PUBLICATION
ROSSUM, DELAWARE March 18, 2020
RIVERKEEPER,
APPELLATE DIVISION

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.
_________________________________

Argued November 20, 2019 – Decided March 18, 2020

Before Judges Koblitz, Gooden Brown and Mawla.

On appeal from the New Jersey Department of
Environmental Protection.

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, 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, 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).

The opinion of the court was delivered by

KOBLITZ, P.J.A.D.
A-1821-17T3
2
 The New Jersey Department of Environmental Protection (DEP) 1 issued a

renewal of the Tier A 2 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

1
To assist in understanding the many initials we use, we present this list as well
as a reminder when the abbreviation is first used and in section headings:

best management practices (BMPs)
Clean Water Act (CWA)
Environmental Protection Agency (EPA)
maximum extent practicable (MEP)
municipal stormwater management plan (MSWMP)
National Pollutant Discharge Elimination System (NPDES)
New Jersey Department of Environmental Protection (DEP)
New Jersey Pollutant Discharge Elimination System (NJPDES)
notice of intent (NOI)
optional measures (OMs)
statewide basic requirements (SBRs)
stormwater management program (SWMP)
stormwater pollution prevention plan (SPPP)
municipal separate storm sewer systems (MS4)
total maximum daily load (TMDL)
wasteload allocation (WLA)
2
Tier A municipalities, the focus of this general permit, are located within the
more urbanized regions of the state or along or near the Atlantic coast, while
Tier B municipalities tend to be located in more rural and non-coastal areas.
N.J.A.C. 7:14A-25.3.
3
We granted the DEP's motion to consolidate the appeals on April 23, 2018.
A-1821-17T3
3
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.

I. Permit History.

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

A-1821-17T3
4
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 (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

A-1821-17T3
5
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,

A-1821-17T3
6
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) (outlining minimum diameters of pipes in major MS4 outfalls).

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

A-1821-17T3
7
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).

A-1821-17T3
8
 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 "Comprehensive General Permit," applicable here,

or the "Two-Step General Permit." Ibid.; 40 C.F.R. § 122.28(d). Under the

Comprehensive General Permit:

[T]he permitting authority must establish in any small
MS4 general permit the full set of requirements that are
deemed necessary to meet the MS4 permit standard
("reduce pollutants to the [MEP], protect water quality
and satisfy the appropriate water quality requirements
of the [CWA]"), and the administrative record would
include an explanation of the rationale for its
determination. . . .

....

Regardless of which type of general permit is used to
establish permit terms and conditions, every small MS4
general permit must include requirements that address
the minimum control measures (§ 122.34(b)), water
quality-based requirements where needed (§
122.34(c)), and evaluation and assessment
requirements (§ 122.34(d)). The final rule clarifies that
all such terms and conditions must be expressed in
terms that are "clear, specific, and measurable." The
important attribute here is that permit requirements
must be enforceable, and must provide a set of
A-1821-17T3
9
 performance expectations and schedules that are
readily understood by the permittee, the public, and the
permitting authority alike. For both types of general
permits, requirements may be expressed in narrative or
numeric form, as long as they are clear, specific, and
measurable.

[NPDES Municipal Separate Storm Sewer System
General Permit Remand Rule, 81 Fed. Reg. at 89,324,
89,326 (emphasis added).]

The EPA has described the approach to meet the MS4 permit standard in

the preamble to the Phase II rule as an "iterative process" of developing,

implementing, and improving stormwater control measures contained in

SWMPs. National Pollutant Discharge Elimination System—Regulations for

Revision of the Water Pollution Control Program Addressing Storm Water

Discharges, 64 Fed. Reg. 68,722, 68,754 (Dec. 8, 1999) (codified at 40 C.F.R.

§§ 9, 122, 123, and 124).

A. The 2004 and 2009 MS4 Permits.

New Jersey adopted the EPA's Phase II rules for small MS4s and issued

the first Tier A MS4 NJPDES Permit in 2004. N.J.A.C. 7:14A-25.6. The permit

included statewide basic requirements (SBRs) and related BMPs designed to

achieve the six minimum control measures identified in 40 C.F.R. § 122.34. It

also included a provision for "additional measures," which, pursuant to N.J.A.C.

7:14A-25.6(e), are "non-numeric or numeric effluent limitations that are

expressly required to be included in the stormwater program by an areawide or
A-1821-17T3
10
Statewide water quality management plan . . . [as] adopted in accordance with

N.J.A.C. 7:15." Additional measures may also be required by the DEP based on

an adopted total maximum daily load (TMDL) report or a regional stormwater

management plan adopted under N.J.A.C. 7:8. N.J.A.C. 7:14A-25.6(e)(1).

The 2004 permit included a provision for optional measures (OMs), which

"are BMPs that are included at the municipality's discretion (in addition to any

SBRs) that are intended to further prevent or reduce pollution of the waters of

the state pursuant to N.J.A.C. 7:14A-25.6(i)." In 2005, the DEP issued a

modification of the 2004 permit "to further develop and refine certain aspects of

the permit."

In 2009, the permit was renewed and issued to 457 municipalities. The

DEP made a number of "significant changes" to the 2004 permit, including the

establishment of a point system for the local public education program and

required adoptions and enforcement of an ordinance mandating the retrofitting

of storm drain inlets by private entities when repaving parking lots or private

roads. The 2009 permit expired on February 28, 2014, but was administratively

continued in force pending completion of the renewal process under N.J.A.C.

7:14A-2.8.

B. The 2014 Petition.

In February 2014, appellant Delaware Riverkeeper Network and eight

A-1821-17T3
11
other environmental groups submitted a petition to the DEP requesting "the

modification (or revocation and reissuance)" of New Jersey's MS4 Permits

pursuant to N.J.A.C. 7:14A-16.3. In August 2014, the EPA reviewed the DEP's

MS4 permit and determined that the DEP had "a progressive MS4 permitting

program with many commendable attributes," but "some modifications" to the

Tier A MS4 permit were either required or recommended to comply with federal

regulations. The DEP was "required to address the Ninth Circuit's partial

remand of stormwater Phase II regulations regarding NOIs." In addition, the

DEP was told to "make publicly available and review the [stormwater pollution

prevention plans (SPPPs)] developed by each MS4," which were "also require[d]

. . . to make their annual reports publicly available." The DEP was also required

to "include a program evaluation provision in the MS4 general permits to

document progress towards achieving measurable goals" and to "include water

quality-based effluent limits in the MS4 general permits for MS4s with approved

[wasteload allocations (WLAs)]." Finally, the DEP was required to integrate

into the Tier A MS4 general permit several TMDL requirements.

C. The 2017 MS4 Permit at Issue.

The DEP issued a draft renewal of the MS4 comprehensive general permit

in February 2017, including new requirements as well as clarifications and

improvements to existing requirements. The DEP explained that a primary

A-1821-17T3
12
objective of the MS4 stormwater program was to implement BMPs and other

control measures, which would "serve to reduce the discharge of pollutants from

the Tier A [m]unicipality's MS4, municipal maintenance yards and other

ancillary operations, to the [MEP] pursuant to N.J.A.C. 7:14A-25.6(a)(1) and 40

C.F.R. § 122.34(a) to protect water quality and to satisfy the applicable water

quality requirements of the [CWA]." The Tier A municipalities were required

to submit an annual report and certification summarizing the status of

compliance with the permit.

The DEP explained:

This draft Tier A MS4 NJPDES permit is a
Comprehensive General Permit (under 40 C.F.R. §
122.28) which requires Tier A [m]unicipalities to
develop, update, implement and enforce a stormwater
program (as documented in an SPPP) to ensure
compliance with [SBRs], [o]ther [c]ontrol [m]easures,
[a]dditional [m]easures, and [OMs]. The [DEP]
provides an appropriate level of specificity in
establishing Tier A NJPDES MS4 permit conditions by
specifying BMPs, measurable goals, and
implementation schedules for these SBRs and other
measures. This provides Tier A [m]unicipalities, the
public and regulators with clarity regarding what
municipalities must do to comply with the permit.

Without specific conditions, the Tier A MS4 NJPDES
permit would be difficult to enforce and would give
permittees little direction as to how to meet the
requirements of State and Federal Rules.

Public notice for the draft renewal of the Tier A MS4 NJPDES permit was

A-1821-17T3
13
published in the Press of Atlantic City, Courier-Post, Star-Ledger, and in the

February 15, 2017, DEP Bulletin. The DEP held a public hearing on March 22,

2017. The public comment period closed on April 3, 2017. Thirty-three

different parties, including appellants, submitted comments. The DEP

responded to those comments and issued the final renewed MS4 Permit, with an

effective date of January 1, 2018. The EPA has not objected to the permit.

II. Standard of Review and Federal Compliance.

The scope of review of an administrative agency determination is limited.

In re Stallworth, 208 N.J. 182, 194 (2011). To reverse the judgment of an

administrative agency, we "must find the agency's decision to be 'arbitrary,

capricious, or unreasonable, or [] not supported by substantial credible evidence

in the record as a whole.'" Ibid. (alteration in original) (quoting Henry v.

Rahway State Prison, 81 N.J. 571, 579–80 (1980)). In reviewing the DEP's

determination, we owe deference to the agency's expertise and to its reasonable

construction of its enabling statute and regulations:

The Legislature has entrusted to the DEP the
enforcement of a complex system of water pollution
control. We will ordinarily defer to an agency's
construction of its enabling statute and its regulations,
particularly where the Legislature has relied on the
agency's expertise in enforcing a complex regulatory
scheme. Accordingly, we give deference to [the] DEP's
construction of the Water Pollution Control Act and to
the agency's construction of its NJPDES regulations
adopted pursuant to the Act.
A-1821-17T3
14
 [SJC Builders, LLC v. State of N.J. Dep't of Envtl.
Prot., 378 N.J. Super. 50, 54 (App. Div. 2005) (citations
omitted).]

We review whether the agency's decision was lawful, rather than wise. See In

re Adoption of Amendments to Ne., Upper Raritan, Sussex Cty., 435 N.J. Super.

571, 583–84 (App. Div. 2014).

A reviewing court "must give deference to the agency's findings of facts,

and some deference to its 'interpretation of statutes and regulations within its

implementing and enforcing responsibility.'" Utley v. Bd. of Review, Dep't of

Labor, 194 N.J. 534, 551 (2008) (citation omitted) (quoting In re Appeal by

Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "We are

'in no way bound by the agency's interpretation of a statute or its determination

of a strictly legal issue.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec.,

64 N.J. 85, 93 (1973)). An agency cannot issue or deny a permit "absent

satisfaction of the applicable statutory criteria." In re Authorization for

Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 596 n.8 (App. Div.

2004).

Appellants argue that the DEP's issuance of the permit is unlawful because

it fails to include effluent monitoring as required by 40 C.F.R. § 122.44(i)(1 ).

They argue that federal regulations require the DEP to include monitoring that

measures the "mass and volume of pollutants," or end-of-pipe numerical effluent
A-1821-17T3
15
monitoring.

The DEP's permit required BMPs as an acceptable form of effluent

monitoring. 40 C.F.R. § 122.44(k); N.J.A.C. 7:14A-25.6(a)(1). The permit

specifies the monitoring necessary to achieve compliance. For example, one

permit requirement, expressed as a BMP, is that the permittee must "[d]evelop,

update and implement a program to detect, investigate and control localized

stream scouring from stormwater outfall pipes." To measure compliance, the

permit requires that the permittee

[c]ertify in each annual report that municipally owned
outfall pipes have received the required visual
inspection at least once every five years and maintain a
log indicating the number and location of outfall pipes
inspected, repairs prioritized, and repairs scheduled or
performed. Certify in the annual report that a repair
schedule has been prepared for those that have not been
completed. Keep records required . . . in the SPPP.

Federal requirements for effluent monitoring include:

(k) [BMPs] to control or abate the discharge of
pollutants when:

(1) Authorized under section 304(e) [4] of the
CWA for the control of toxic pollutants and

4
This section authorizes the EPA to include BMPs in effluent guidelines for
certain toxic or hazardous pollutants for the purpose of controlling "plant site
runoff, spillage or leaks, sludge or waste disposal, and drainage from raw
material storage." 33 U.S.C. § 1314(e).

A-1821-17T3
16
 hazardous substances from ancillary industrial
activities;

(2) Authorized under section 402(p) [5] of the
CWA for the control of stormwater discharges;

(3) Numeric effluent limitations are infeasible; or

(4) The practices are reasonably necessary to
achieve effluent limitations and standards or to
carry out the purposes and intent of the CWA.

[40 C.F.R. § 122.44(k).]

BMPs are defined as "schedules of activities, prohibitions of practices,

maintenance procedures, and other management practices to prevent or reduce

the pollution of 'waters of the United States.'" 40 C.F.R. § 122.2. The term

"BMP" is intended to take on "a broad meaning." NPDES Municipal Separate

5
This section provides:

Permits for discharges from municipal storm sewers—

(i) may be issued on a system- or jurisdiction-wide basis;

(ii) shall include a requirement to effectively prohibit non-
stormwater discharges into the storm sewers; and

(iii) shall require controls to reduce the discharge of
pollutants to the [MEP], including management practices,
control techniques and system, design and engineering
methods, and such other provisions as the Administrator or
the State determines appropriate for the control of such
pollutants.

[33 U.S.C. § 1342(p)(3)(B).]
A-1821-17T3
17
Storm Sewer System General Permit Remand Rule, 81 Fed. Reg. at 89,337.

Consistent with federal law, the DEP, as a permitting authority, has

implemented BMPs as opposed to numeric effluent limitations. Its decision to

do so is also consistent with NJPDES regulations:

[BMP] requirements are generally the most appropriate
form of effluent limitations when designed to satisfy
technology-based requirements (including reductions
of pollutants to the [MEP]) and to protect water quality.
Implementation of BMPs (other than OMs) consistent
with the provisions of the stormwater program required
. . . and the provisions of the NJPDES permit . . .
constitutes compliance with the standard of reducing
pollutants to the [MEP].

[N.J.A.C. 7:14A-25.6(a)(1)]

In addition to effluent limitations, which may be expressed as BMPs,

permits must also include "monitoring necessary to determine compliance."

EPA, Memorandum on Establishing Total Maximum Daily Load (TMDL)

Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit

Requirements Based on those WLAs (Nov. 22, 2002) [hereinafter EPA 2002

Memorandum], https://www.epa.gov/sites/production/files/2015-07/ documents

/final-wwtmdl.pdf. Under federal regulations, the permit must specify the "type,

intervals, and frequency sufficient to yield data which are representative of the

monitored activity including, when appropriate, continuous monitoring." 40

C.F.R. § 122.48(b).

A-1821-17T3
18
 Where stormwater permits contain effluent limitations expressed as

BMPs, these permits should specify the monitoring necessary to determine if

BMPs are achieving pollution reduction to the MEP. EPA 2002 Memorandum.

To assess WLA implementation progress, the DEP's monitoring requirements

"could include BMP effectiveness monitoring, outfall monitoring, or receiving

water monitoring or NJDEP could require that MS4s demonstrate compliance

with effluent limit BMPs through tracking of BMP implementation and

modeling studies." Water quality monitoring is not necessarily required in every

instance to assess compliance. NPDES Municipal Separate Storm Sewer System

General Permit Remand Rule, 81 Fed. Reg. at 89,336. Numeric, end-of-pipe

pollutant concentrations or loadings are not required to be included in permits.

Ibid. The permitting authority has great flexibility in setting BMPs. See id. at

89,334–36.

The DEP also provided other reasons for its decision not to include

requirements for numeric, end-of-pipe monitoring in its permit. First, it

explained in its response to appellants' comment that this type of monitoring was

not needed because of the permit's requirements for data and information

collection and reporting, which the DEP maintained was the most appropriate

form of monitoring. The DEP further stated:

It is worth noting that some municipalities are
responsible for hundreds of MS4 stormwater outfalls
A-1821-17T3
19
 and the intermittent nature of stormwater discharges
presents challenges to the collection of representative
samples. At this time, end-of-pipe monitoring
requirements would require Tier A municipalities to
divert resources that would otherwise be used to
implement BMPs to reduce the discharge of pollutants.

Finally, the DEP conducted a "wide array of ambient monitoring for

freshwater (rivers, streams, lakes), marine waters (bays, oceans) and tidal

rivers," and that monitoring is conducted for "chemical/physical parameters;

biological health (e.g., bottom-dwelling communities, fish populations);

phytoplankton (microscopic plants) and sanitary quality (indicator of human

health risk)."

Appellants cite to federal cases for the proposition that EPA regulations

require monitoring. Those cases do not hold, however, that BMPs are

insufficient as monitoring tools, or that numeric, end-of-pipe monitoring is

required to be included in a permit.

For example, Natural Resources Defense Council, Inc. v. EPA, 808 F.3d

556 (2d Cir. 2015) concerned a permit that regulated the discharge of ballast

water from ships. Id. at 561. The EPA required the monitoring of

"functionality" of a vessel's ballast water treatment system and of the

concentrations of two specific types of bacteria. Id. at 581. Although the

environmental organizations advocated for the alternative of "direct

monitoring," the Second Circuit reasoned that dischargers did not have the
A-1821-17T3
20
capacity to quantify living organisms of certain size classes. Id. at 582.

Moreover, the current technology would require an analysis that was

"prohibitively expensive and impractical." Ibid. The Second Circuit deferred

to the EPA in light of no "feasible" alternative. Id. at 582–83.

The EPA wrote regulations with the understanding that not every permit

limitation could be measured in terms of mass or volume. See 40 C.F.R. §

122.44(i)(1)(i). As Maryland has recognized, "[f]lexibility is a hallmark in

designing MS4 permits." Md. Dep't of Env't. v. Anacostia Riverkeeper, 134

A.3d 892, 936 (Md. 2016).

"'[M]easurable' does not necessarily mean that . . . numeric, end-of-pipe

pollutant concentrations or loadings must be included in permits." NPDES

Municipal Separate Storm Sewer System General Permit Remand Rule, 81 Fed.

Reg. at 89,336. "Rather, the term 'measurable' means that the permit

requirement has been articulated in such a way that compliance with it can be

assessed in a straightforward manner." Ibid.

In choosing to implement BMPs, the DEP complied with both federal and

state regulations regarding effluent limitations. Contrary to appellants'

arguments, numeric, end-of-pipe effluent limitations are not required in permits.

33 U.S.C. § 1342(p)(3)(B); 40 C.F.R. § 122.44; N.J.A.C. 7:14A-25.6(a)(1). The

DEP complied with federal regulations regarding monitoring, which includes

A-1821-17T3
21
BMPs. NPDES Municipal Separate Storm Sewer System General Permit

Remand Rule, 81 Fed. Reg. at 89,336.

III. Measures to Ensure Compliance.

Appellants argue that the MS4 permit fails to specify monitoring

requirements, including effluent monitoring, sufficient to assess compliance

with permit limitations. An example of a monitoring requirement in the DEP's

permit can be found in Part IV.B.5, "Minimum Standards for Pollution

Prevention/Good Housekeeping for Municipal Operators," which requires Tier

A municipalities to adopt and enforce various community-wide ordinances, such

as pet waste ordinances, wildlife-feeding ordinances, and litter control

ordinances. The measurable standard for these ordinances is to "[c]ertify in each

annual report the date the ordinance was adopted and that it is being enforced.

A log of enforcement actions shall be kept in the SPPP." The DEP is able to

verify compliance with this standard by reviewing annual reports and

enforcement logs, as well as through the municipal stormwater audit process.

The municipal stormwater audit process allows the DEP "to better evaluate

municipalities' compliance with the requirements of the Tier A permit and

identify areas of concern where municipalities can improve the implementation

of their municipal stormwater management program."

The permit also incorporates a Tier A Municipal Stormwater Guidance

A-1821-17T3
22
Document, which provides "sample model ordinances that may be downloaded

at https://www.nj.gov/dep/dwq/tier_a_model_ord.htm, and are available for use

by a Tier A municipality to assist in developing local regulations." New Jersey

Department of Environmental Protection, Division of Water Quality, Tier A

Municipal Stormwater: Guidance Document ch. 3.5 (October 2018),

https://www.nj.gov/dep/dwq/pdf/Tier_A/Tier_A_Guidance.pdf. Tier A

municipalities are required to adopt and enforce either the model ordinance or a

different ordinance that meets the minimum standard. Ibid. The DEP explained

that flexibility is given because many of the community wide ordinances

"require specific knowledge of the community and its residents."

"In order for permit language to be clear, specific, measurable and

enforceable, each [p]ermit [r]equirement will ideally specify: [w]hat needs to

happen; [w]ho needs to do it; [h]ow much they need to do; [w]hen they need to

get it done; and [w]here it is to be done." National Pollutant Discharge

Elimination System (NPDES) Municipal Separate Storm Sewer System General

Permit Remand, 81 Fed. Reg. 415, 422 (Jan. 6, 2016) (codified at 40 C.F.R. §

122).

Accompanying the promulgation of the requirement that permit terms and

conditions be "clear, specific, and measurable," the EPA published a

compendium of permit examples, which included provisions from the EPA and

A-1821-17T3
23
state MS4 general permits that provided examples of clear, specific, and

measurable requirements. EPA, Compendium of MS4 Permitting Approaches:

Part 1: Six Minimum Control Measures (Nov. 2016),

https://www.epa.gov/sites/production/files/2017-01/documents/part1-

epa_compendium_of_ms4_general_permit_requirements_508.pdf. The EPA

also identified the types of permit language that would not qualify as clear,

specific, and measurable. NPDES Municipal Separate Storm Sewer System

General Permit Remand, 81 Fed. Reg. at 423.

As for the word "specific," the EPA explained that it intended for that

word to mean "that a permitting authority describes in enough detail that an MS4

can determine from permit terms and conditions what activity they need to

undertake, when or how often they must undertake it, and whether they must

undertake it in a particular way." NPDES Municipal Separate Storm Sewer

System General Permit Remand Rule, 81 Fed. Reg. at 89,335. "[I]t is not

necessary that every detail be spelled out in a permit as an enforceable

requirement under the CWA." Id. at 89,336.

As for the word "measurable," the EPA clarified that "'measurable' does

not necessarily mean that water quality monitoring must be required in every

instance to assess compliance." Ibid. "[I]t does not mean that numeric, end-of-

pipe pollutant concentrations or loadings must be included in the permits." Ibid.

A-1821-17T3
24
 Contrary to appellants' arguments, the DEP's permit requirements are

clear, specific, and measurable, and thus, as the DEP indicated, it will be able to

assess and evaluate compliance through tracking of measurable goals ,

implementing BMPs, on-site audits conducted by the DEP staff, the submission

of annual reports, and the ambient monitoring program.

The EPA "intend[ed] for the permitting authority to retain discretion in

determining how much specificity is needed for different permit requirements. "

Id. at 89,335. The EPA recognizes that the level of specificity depends on the

particular factors at play in the permit area. Id. at 89,336. Thus, in giving Tier

A municipalities some flexibility, the DEP did not violate federal law.

The DEP strengthened its final permit based on the recommendations

given by the EPA, which included the addition of more specific monitoring

obligations. The DEP included in the final permit a requirement for Tier A

municipalities to annually identify pollutants listed in any approved or adopted

TMDL6 report for water bodies bordering or within the Tier A Municipality for

inclusion in the SPPP and to identify strategies to address sources of stormwater-

related pollutants.

Each permittee must also certify in an annual report that: (1) approved or

6
A list of approved and adopted, or approved but not yet adopted TMDLs can
be found at https://www.nj.gov/dep/dwq/msrp-tmdl-rh.htm.
A-1821-17T3
25
adopted TMDLs have been identified and reviewed and stormwater related

pollutants identified; (2) the municipality has prioritized stormwater facility

maintenance, and identified and developed strategies to address specific sources

of stormwater-related pollutants contributing to discharges; (3) the municipality

has updated its SPPP accordingly; and (4) the municipality has incorporated

OMs.

The permit also provides that additional measures will be included if the

TMDL so requires. These regulations provide the permitting agency the

authority to include more stringent terms and conditions in addition to the

minimum control measures based on approved TMDLs, as well as the discretion

to set other applicable requirements to account for TMDLs and WLAs as

appropriate. The DEP's permit meets these requirements and contains sufficient

clear, specific, and measurable measures to ensure compliance.

IV. Wasteload Allocation (WLA).

Appellants argue that the permit did not comply with federal regulations

because it failed to include effluent limits consistent with WLAs previously

adopted by the DEP. They contend that 40 C.F.R. §122.44(d)(1)(vii)(B)

obligated the DEP to require that effluent limits be "consistent with the

assumptions and requirements of any available [WLA]." They claim that the

DEP violated this regulation because it did not examine available WLAs. 40

A-1821-17T3
26
C.F.R. § 122.44(d)(1)(vii)(B) requires consistency with the requirements of any

WLA developed and approved for a particular discharge. It provides:

When developing water quality-based effluent limits
. . . the permitting authority shall ensure that . . .
[e]ffluent limits developed to protect a narrative water
quality criterion, a numeric water quality criterion, or
both, are consistent with the assumptions and
requirements of any available [WLA] for the discharge
prepared by the State and approved by EPA pursuant to
40 CFR 130.7.

[Ibid.]

"Subparagraph (vii) does not prescribe detailed procedures for developing

water quality-based effluents limits. Rather, the regulation prescribes minimum

requirements for developing water quality-based effluent limits and, at the same

time, gives the permitting authority the flexibility to determine the appropriate

procedures for developing water quality-based effluent limits." National

Pollutant Discharge Elimination System; Surface Water Toxics Control

Program, 54 Fed. Reg. 23,868, 23,879 (June 2, 1989) (codified at 40 C.F.R. §§

122, 123, and 130). WLAs require translation into permit limits, such as water

quality-based effluent limits. In re City of Moscow, Idaho, 10 E.A.D. 135, 146–

47 (EAB 2001).

The Environmental Appeals Board rejected the City of Moscow's petition

for review of an EPA-issued NPDES permit. Id. at 172. The Board concluded

that the EPA did not err in creating permit limits although the EPA did not
A-1821-17T3
27
incorporate the design flow rate of an applicable TMDL. Id. at 146–48. After

reviewing 40 C.F.R. § 122.44(d)(1)(vii)(B) and the regulatory history, the Board

explained that no law or rule prescribed how the EPA was to select a flow rate

to create effluent limits. Ibid. The Board concluded that the agency acted "well

within the discretion accorded [it] under the applicable regulatory scheme." Id.

at 148.

The overarching federal law for MS4s—33 U.S.C. § 1342(p)(3)(B)(iii) —

is broad and flexible. It does not require the DEP to implement numeric effluent

limitations; BMPs are appropriate.

Currently, no existing TMDLs require numeric water quality-based

effluent limits, but that does not mean that no controls are in place to ensure

water quality. In fact, the DEP stated that "SBRs and other control measures

that Tier A [m]unicipalities are required to implement are designed to minimize

pollutant loadings in all watersheds including impaired watersheds. Each SBR

contains specific requirements, each of which is targeted at reducing the

discharge of pollutants." The DEP has determined that for water bodies with

approved or adopted TMDLs, the reductions associated with compliant

implementation of each SBR are sufficient to meet the reductions specified in

the TMDLs.

A-1821-17T3
28
 V. The DEP's Use of Best Management Practices (BMPs).

Appellants argue that the DEP violated federal law by failing to provide

adequate support in the administrative record for its decision to implement

BMPs rather than numeric effluent limits in the MS4 permit. Prior to proposing

the MS4 permit, the DEP reviewed the existing municipal stormwater programs

and the EPA's MS4 Permit Improvement Guide, in an effort to improve upon the

2009 permit. The DEP reviewed compliance evaluations, annual reports and

certifications, supplemental questionnaires, input from outreach sessions, and

municipal stormwater audits. It expressly explained its reasons for choosing to

implement BMPs rather than numeric effluent limitations.

VI. Clear, Specific, and Measurable Terms.

Appellants argue that the DEP "violated EPA regulations by failing to

express the permit requirements in 'clear, specific, and measurable' terms" as

required by 40 C.F.R. § 122.34(a). First, appellants take issue with the permit

requirements relating to the implementation of community-wide ordinances,

such as the yard waste ordinance and litter ordinance. Contrary to appellants'

argument, the permit language is sufficiently "clear, specific, and measurable"

to ensure compliance, and thus, satisfies 40 C.F.R. § 122.34(a).

The DEP is able to verify compliance with this standard by reviewing

annual reports and enforcement logs, as well as through the municipal

A-1821-17T3
29
stormwater audit process. As determined by the DEP, further specificity would

be "impracticable and inappropriate," considering the differences among

municipalities. Specific knowledge of the community and its residents is needed

in order to enact a municipal ordinance that will meet the requirements of the

permit.

Appellants argue that the "DEP's failure to require a minimum frequency

for yard waste pickups" is improper. As explained by the DEP, "a one-size-fits-

all" yard waste pickup schedule "for hundreds of Tier A municipalities [is]

impracticable and onerous." The DEP further explained: "Flexibility in

scheduling is necessary in a yard waste pick-up program to accommodate for

site-specific factors such as limited or changing municipal resources, equipment

breakdown, weather, and topographic differences." The permit does require the

permittee to either:

(1) [a]dopt and enforce an ordinance that prohibits
placing non-containerized yard wastes . . . into the
street; or (2) develop and implement a non-
containerized yard waste collection and disposal
program that includes adoption and enforcement of an
ordinance that prohibits placing non-containerized yard
waste at the curb or along the street within [ten] feet of
any storm drain inlet and at any time other than a set
yard waste collection schedule.

The permit also requires the permittee to set a yard waste collection

schedule that is provided to all municipal residents and businesses. To measure

A-1821-17T3
30
compliance, the DEP requires the permittee to certify in each annual report the

date the ordinance was adopted and that it is enforced. This requirement is thus

"clear, specific, and measurable" as per 40 C.F.R. § 122.34(a).

Appellants also take issue with the permit requirements pertaining to litter

control. They argue that "[i]f a municipality wishes to adopt its own litter

ordinance in lieu of the state litter statute, there is no way to measure whether a

given litter ordinance is being 'enforced' within the terms of the permit ."

Permittees are required to certify in their annual report the date the ordinance

was adopted and that it is being enforced. More specificity is impracticable and

inappropriate because a community-wide measure, like litter control, requires

specific knowledge of the community and its residents.

Next, appellants argue that the stormwater facilities maintenance

provision of the permit contains no measurable requirement. The permit

requires the permittee to ensure that stormwater facility maintenance is

performed consistent with any maintenance plans, or more frequently as needed,

to ensure the proper function and operation of the stormwater facility. The

permittee is required to maintain a log of inspections and any preventative and

corrective maintenance performed, as well as certify in each annual report that

the municipality has "developed, updated, implemented and enforced a program

to ensure adequate long-term cleaning, operation, and maintenance of

A-1821-17T3
31
stormwater facilities not owned or operated by the municipality, not subject to

the conditions of another NJPDES stormwater permit and constructed after

February 7, 1984." The permit also refers to the DEP's maintenance guidance,

which provides examples of maintenance tasks and performance schedules, and

templates of inspection and maintenance logs. The stormwater facilities

maintenance provision is sufficiently clear, specific, and measurable to satisfy

federal requirements.

Finally, appellants claim that there are no specific or measurable permit

standards by which to determine whether a permittee has developed strategies

to address specific sources of stormwater-related pollutants contributing to

discharges using the TMDL information. Permittees are required to "annually

review approved or adopted TMDL reports to identify stormwater related

pollutants listed therein and associated with any segment of surface water

wholly or partially within or bordering the Tier A Municipality." The permittee

is then required to use that information to, "at a minimum, (1) assist in the

prioritization of stormwater facility maintenance including schedules for repairs

. . . and (2) identify and develop strategies to address specific sources of

stormwater related pollutants contributing to discharges authorized under [the]

. . . permit." Examples of strategies are provided in the "[TMDL] Guidance for

Tier A MS4 Permittees." The information learned and the strategies developed

A-1821-17T3
32
are then required to be incorporated into the permittee's SPPP and included as

OMs in the permit. As the DEP explained, these measures, in addition to the

SBRs, when properly implemented, "achieve a substantial portion of the

required load reductions." These numerous measurable requirements associated

with TMDL information, satisfy federal requirements.

VII. Maximum Extent Practicable (MEP).

Appellants argue that the DEP failed to include "all necessary permit

terms and conditions to reduce the discharge of pollutants from the MS4 to the

[MEP]." 40 C.F.R. § 122.34(a) states that the requirements of the permit must

be expressed in "clear, specific, and measurable terms" to "reduce the discharge

of pollutants from the MS4 to the [MEP]," and that "implementation of specific

tasks or [BMPs], BMP design requirements, [and] performance requirements"

will meet the MEP standard.

The "MEP" standard has not been precisely defined. The EPA has stated

that this phrase was intentionally left undefined "to allow maximum flexibility

in MS4 permitting. MS4s need the flexibility to optimize reductions in

stormwater pollutants on a location-by-location basis. . . . Therefore, each

permittee will determine appropriate BMPs to satisfy each of the six minimum

control measures through an evaluative process." NPDES Regulations for

Revision of the Water Pollution Control Program Addressing Storm Water

A-1821-17T3
33
Discharges, 64 Fed. Reg. at 68,754.

The "[MEP] standard should be applied in a site-specific, flexible manner,

taking into account cost considerations as well as water quality effects." Id. at

68,732 (emphasis added). "[W]hat constitutes compliance will by necessity

change over time." NPDES Municipal Separate Storm Sewer System General

Permit Remand Rule, 81 Fed. Reg. at 89,342.

The permit contains multiple examples of BMPs that are designed to

reduce pollution to the MEP as required by federal law. The DEP stated that it

made multiple improvements to the 2009 permit, including "improved permit

language, new requirements, such as enhanced training, improved

recordkeeping for stormwater facility maintenance, expansion of [l]ocal [p]ublic

[e]ducation and [o]utreach, expanded requirements for municipal maintenance

yards, and [TMDL] requirements." These changes reflect the DEP's effort to

continue to reduce pollution to the MEP, and thus, the permit satisfies federal

requirements in that regard.

VIII. Meaningful Review.

Appellants maintain that the "DEP failed to provide for meaningful review

to ensure that each MS4 program reduces the discharge of pollutants" to the

MEP as required under federal law. Appellants cite to permit section IV.C.2.a,

which requires the development of a pollution reduction strategy by requiring

A-1821-17T3
34
Tier A municipalities to use TMDL information to "identify and develop

strategies to address specific sources of stormwater related pollutants

contributing to discharges" authorized under the permit.

The DEP did include meaningful review measures in the permit for all

sections. Permittees are required to complete an annual report, including any

supplemental questions, which summarizes the status of compliance with the

conditions of the permit. The Municipal Stormwater Program Coordinator is

required to certify, sign and date the report, and make it available to the DEP

for inspection. The DEP is thus able to conduct a meaningful review of all

strategies implemented. In addition, the DEP conducts a wide array of ambient

monitoring for freshwater, marine waters, and tidal rivers. If water quality

standards are not met, the DEP may review a permittee's permit and SPPP, and

make revisions.

IX. Public Accountability.

Federal and state regulations require that the permit address the need for

the public to be included in developing, implementing, and reviewing the

stormwater management program. 40 C.F.R. § 122.34(b); N.J.A.C. 7:14A-

25.6(b)(1). Members of the public may participate in program development and

implementation by "serving as citizen representatives on a local stormwater

management panel, attending public hearings, working as citizen volunteers to

A-1821-17T3
35
educate other individuals about the program, assisting in program coordination

with other pre-existing programs, or participating in volunteer monitoring

efforts." 40 C.F.R. § 122.34(b)(2)(ii).

Consistent with this requirement, the DEP's permit includes "Minimum

Standards for Public Involvement and Participation Including Public Notice ."

This section provides, in pertinent part:

Tier A [m]unicipalities shall comply with applicable
State and local public notice requirements when
providing for public participation in the development
and implementation of a MS4 stormwater program.
Requirements include but are not limited to:

The Open Public Meetings Act ("Sunshine Law,"
N.J.S.A. 10:4-6 to -21);

Statutory procedures for the enactment of ordinances
(N.J.S.A. 40:49-2), including the municipal stormwater
control ordinance and other ordinances adopted to
comply with Part IV of this permit; and

The Municipal Land Use Law concerning the adoption
or amendment of the [municipal stormwater
management plan (MSWMP)] (N.J.S.A. 40:55D-13,
28, and 94), and the review of applications for
development (N.J.S.A. 40:55D-12). The Tier A
[m]unicipality shall also ensure that applicants for
development meet the notice requirements of N.J.S.A.
40:55D-12.

Tier A [m]unicipalities shall make elements of its MS4
stormwater program available to the public:

Provide the current (SPPP) upon request . . . ;

A-1821-17T3
36
 Post the current SPPP on its website . . . ; and

Post the current MSWMP and all ordinances required
by this permit on its website or otherwise comply with
the notification requirements of N.J.A.C. 7:8-4.4(e).

The permit provides for and encourages public participation by requiring

permittees to comply with local notice and participation laws and by requiring

the public posting of the SPPP and MSWMP. Importantly, it is the permit and

not the SPPP which regulates the discharge of municipal stormwater, and thus,

the permittee is not required to develop the SPPP in a public forum. The permit

details the specific requirements municipalities should implement to meet the

six minimum controls and the statewide basic requirements. In contrast, the

SPPP is a "living document," required to be updated annually . It serves to

document the implementation of the specific permit requirements, and the public

has the opportunity to participate in its development by attending public

hearings on ordinances or working as volunteers. The DEP followed all public

participation requirements.

We affirm the DEP's final determination to renew the MS4 general permit,

which complies with all federal and state requirements.

Affirmed.

A-1821-17T3
37