Opinion

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5266-07T3

A-5271-07T3

A-5990-07T3

A-5993-07T3

IN THE MATTER OF ADOPTION OF

AMENDMENTS TO THE NORTHEAST,

UPPER RARITAN, SUSSEX COUNTY

APPROVED FOR PUBLICATION

AND UPPER DELAWARE WATER

QUALITY MANAGEMENT PLANS TO May 15, 2014

ESTABLISH TOTAL MAXIMUM DAILY

LOADS IN THE NON-TIDAL PASSAIC APPELLATE DIVISION

RIVER BASIN AND POMPTON LAKE/

RAMAPO RIVER ADDRESSING PHOSPHORUS

IMPAIRMENTS AND TO ESTABLISH

WATERSHED CRITERIA.

___________________________________

Argued June 2, 2009 – Remanded July 21, 2009

Reargued March 5, 2014 – Decided May 15, 2014

Before Judges Grall, Waugh, and Accurso.

On appeal from the New Jersey Department of

Environmental Protection.

Diane Alexander argued the cause for

appellants Pequannock, Lincoln Park &

Fairfield Sewerage Authority, Hanover

Sewerage Authority, and Madison-Chatham

Joint Meeting (Maraziti, Falcon & Healey,

L.L.P., attorneys; Ms. Alexander, of

counsel and on the briefs).

Robert A. Goodsell argued the cause for

appellant Warren Township Sewerage Authority

(Post, Polak, Goodsell, MacNeill &

Strauchler, P.A., attorneys; Mr. Goodsell,

of counsel and on the briefs; Alexa E.

Miller, on the briefs).

Jane F. Engel, Deputy Attorney General,

argued the cause for respondent New Jersey

Department of Environmental Protection (John

J. Hoffman, Acting Attorney General,

attorney; Melissa H. Raksa, Assistant

Attorney General, of counsel; Ms. Engel, on

the brief).

William R. Lundsten argued the cause for

respondent North Jersey District Water

Supply Commission (DeCotiis, FitzPatrick &

Cole, LLP, attorneys; Mr. Lundsten, of

counsel; Kevin M. Kinsella, on the brief).

The opinion of the court was delivered by

WAUGH, J.A.D.

Appellants Pequannock, Lincoln Park and Fairfield Sewerage

Authority (Two Bridges), Hanover Sewerage Authority (Hanover),

Madison-Chatham Joint Meeting (Madison-Chatham), and Warren

Township Sewerage Authority (WTSA) appeal the determination of

respondent New Jersey Department of Environmental Protection

(Department), following a remand1 from this court, that it would

be institutionally impracticable for respondent North Jersey

District Water Supply Commission (North Jersey) to implement an

as-needed-treatment program to limit the phosphorus content of

effluent discharged into the Passaic River during the months

between November and April. We affirm.

1

In re Adoption of Amendments to the Ne., Upper Raritan, Sussex

Cnty. & Upper Del. Water Quality Mgmt. Plans, Nos. A-5266-07, A-

5271-07, A-5990-07, and A-5993-07 (App. Div. July 21, 2009).

2 A-5266-07T3

I.

We discern the following facts and procedural history from

the record on appeal.2

In 2008, the Department adopted amendments to its

Northeast, Upper Raritan, Sussex County, and Upper Delaware

Water Quality Management Plans (WQMPs). Those amendments

established total maximum daily loads (TMDLs) limiting the

amount of phosphorus, a nutrient that contributes to the growth

of algae, discharged into the Passaic River. Appellants collect

municipal wastewater for treatment, after which they discharge

the treated water into the Passaic River.3

In 1987, the Department issued a special report, entitled

"Passaic River Water Quality Management Study," which

recommended that a detailed nutrient study be conducted to

determine the maximum amount of phosphorus that sewage treatment

plants should be allowed to discharge into the Passaic River.

The Department subsequently adopted interim standards for the

phosphorus content of effluent discharged into the river and

2

We incorporate by reference the more detailed factual,

procedural, and statutory background contained in our earlier

opinion.

3

We note that, as of the date of oral argument, none of the

appellants have even constructed the facilities necessary to

treat the phosphorus level of their effluent. The manner in

which those facilities are constructed does not depend on the

outcome of this appeal.

3 A-5266-07T3

undertook extensive studies to determine appropriate long-term

standards. That process included studies by a private

consulting firm and a panel of academics, comments by technical

and public advisory committees, and public hearings. In April

2008, the Department adopted the WQMPs at issue in this appeal.

Appellants filed separate appeals, challenging aspects of

the WQMPs. We consolidated the appeals. Appellants argued that

the Department was arbitrary and capricious in requiring them to

comply with the stringent limitations on the phosphorus content

of their effluent during times of the year when daily adherence

to such limitations is not necessary to maintain water quality

in the waterways located downstream from their facilities,

particularly the location from which the Wanaque Reservoir,

operated by respondent North Jersey, diverts water to replenish

the reservoir. Instead, they argued that the quality of water

in the Wanaque Reservoir could be maintained adequately if the

Department only required strict compliance from May through

October, with treatment at other times on an as-needed basis.

During the off-season, from November to April, appellants

contend compliance should be required only when North Jersey

actually anticipates diverting water from the Passaic River into

the Wanaque Reservoir. They asserted that off-season diversion

occurs infrequently and can be scheduled sufficiently in advance

4 A-5266-07T3

to permit dischargers to reduce their effluent to the required

phosphorus standard. The Department had rejected that approach

during the WQMPs adoption process, taking the position that

"[t]ying effluent limits to an unpredictable pumping regimen

outside the control of the regulated entity is institutionally

impracticable." 40 N.J.R. 2574(b) (May 19, 2008).

In our earlier opinion, we observed that the Department had

not explained what it meant by "institutionally impracticable"

and noted that the extensive documentary record supporting

adoption of the stringent discharge limitations did not address

that issue. In re Adoption of Amendments to the Ne., Upper

Raritan, Sussex Cnty. & Upper Del. Water Quality Mgmt. Plans,

supra, Nos. A-5266-07, A-5271-07, A-5990-07, and A-5993-07 (slip

op. at 12). We concluded that

the feasibility of generally requiring

adherence to those limitations only from May

through October depends on the answer to two

questions. First, how long in advance can

North Jersey reasonably be expected to know

of the need for an off-season diversion?

Second, how much advance notice of a

proposed diversion will appellants and other

dischargers require in order to bring the

level of phosphorus in their effluent into

compliance with the new strict phosphorus

limitations during the off-season?

[Id. (slip op. at 13).]

5 A-5266-07T3

Consequently, we remanded for an evidentiary hearing to address

those questions, but upheld the validity of the WQMPs amendments

in all other respects. We retained jurisdiction.

On remand, the Department transferred the matter to the

Office of Administrative Law (OAL) for an evidentiary hearing.

Following some motion practice not involved in this appeal, 4 the

administrative law judge (ALJ) issued a pre-hearing order that

provided for all testimony to be pre-filed, with the hearing

limited to cross-examination and redirect-examination. The

hearing took place on seven days between May 20 and December 17,

2010.

With respect to the first question, how far in advance

North Jersey can reasonably be expected to predict the need for

an off-season diversion of water from the Passaic River to the

Wanaque Reservoir, the parties presented three witnesses: Dr.

Pen C. Tao, manager and hydrologist of North Jersey's Source

Water Management and Planning Department on behalf of North

Jersey; Richard D. Grabowski, the Department's Supervising

Environmental Specialist in the Division of Water Supply, Bureau

4

The Department objected to appellants' demands for certain

water quality data used in developing the TMDLs and moved to

limit discovery. The ALJ granted the motion. The Commissioner

denied interlocutory review, and we denied leave to appeal. The

ALJ also granted the Department's motion to join North Jersey as

an indispensable party. North Jersey sought interlocutory

review of that order, which the Commissioner denied, as did we.

6 A-5266-07T3

of Water Allocation on behalf of the Department; and Les K.

Lampe, a licensed professional engineer and Vice President of

Black and Veatch in its Water Resources Global Practice and

Technology Leader Department on behalf of appellants.

On the second issue, how much advance notice of a diversion

is required for dischargers to bring their effluent into

compliance with the required phosphorus limitations, the parties

presented six witnesses: Jurek Patoczka,5 licensed professional

engineer with Hatch Mott MacDonald on behalf of WTSA; Robert N.

Bongiovanni, the Executive Director of Two Bridges; Robert

Rectanus,6 senior engineer with Black and Veatch, the consulting

engineering firm retained by Two Bridges to develop a plan for

compliance with the TMDLs; Louis T. Barry, a licensed

professional engineer with Chavond-Barry Engineering,

consultants to Two Bridges; Timothy D. Bradley, a licensed

professional engineer and the Director of Wastewater Practice

for Omni Environmental, consultants to Madison-Chatham; and

Michael Wynne, Executive Director of Hanover.

5

Please note that Patoczka's name is misspelled as "Uri Petaska"

in the transcript.

6

Please note the Rectanus's last name is misspelled as "Retanis"

in the transcript.

7 A-5266-07T3

With respect to the time it takes "a clean drop of water"

to travel from the WTSA treatment plant to the confluence of the

Passaic River with the Pompton River, Patricia Kehrberger, an

expert in water quality modeling and evaluation, testified for

WTSA; and Hui Pang, an expert in investigation and modeling of

the transport of pollutants in river and lake systems, testified

for the Department. Pilar Patterson, Bureau Chief of the

Department's Bureau of Surface Water Permitting, testified about

the time required for dischargers to sample and demonstrate

compliance with the applicable TMDLs limit.

Barbara Hirst, Chief of the Department's Bureau of

Environmental Analysis and Restoration within the Division of

Watershed Management, testified concerning the Department's

earlier rulemaking decision. Richard T. Dewling, a licensed

professional engineer and President of Dewling Associates, Inc.,

testified on behalf of appellants that there was no scientific

or technical basis for requiring phosphorus to be removed in the

winter months when water is not diverted to the Wanaque

Reservoir.

In her decision, the ALJ summarized the testimony of the

seventeen witnesses presented by the parties, all of whom were

qualified as experts in their fields. She determined that at

the time the amended WQMPs were adopted there had been no

8 A-5266-07T3

objective substantiation of the Department's conclusion that

conditional off-season limitations were "institutionally

impracticable."

Based upon her review of the historic records, the ALJ

found that, in the years 2000 to 2009, North Jersey diverted

water from the Passaic River during winter months on only six

occasions that would have required dischargers to commence

treatment if an off-season, as-needed treatment program had been

in place. Four of those occasions would have involved a

temporary period of phosphorus treatment, while two would have

necessitated only an early resumption of the regular summer

treatment schedule. In the earlier period of 1990 to 1999,

North Jersey diverted water from the Passaic River during winter

months on only five occasions, four of which would have required

temporary treatment. The other would have been an early

resumption of regular treatment.

The ALJ concluded that North Jersey is capable of

predicting most of the conditions requiring diversions fourteen

days or more in advance. She noted that the "real time"

conditions have not been significant to the pumping decisions

historically. She found that North Jersey is capable of

notifying the Department and dischargers of potential diversions

two weeks in advance of any actual diversions. She further

9 A-5266-07T3

concluded that a fourteen-day notice requirement prior to any

water diversion would not lead to a disastrous water supply

shortfall in the northeastern region of New Jersey.

Because North Jersey would exercise the sole discretion as

to when to initiate pumping events, the ALJ concluded that it

could build extra time into the notice period, thereby assuring

that the stricter phosphorus levels would be attained prior to

pumping. The dischargers would then be required to continue

treatment until North Jersey advised them that it was no longer

required.

Based on her evaluation and weighing of the scientific

evidence presented at the hearing, the ALJ concluded that

dischargers, including appellants, have sufficient information

about their own wastewater treatment processes, waste stream,

and chemical additives to enable them to resume the required

level of treatment when necessary to treat effluent prior to an

off-season diversion by North Jersey. She further concluded

that the scientific evidence adduced at the hearing supported

the conclusion of several experts, to a reasonable degree of

certainty in their fields of expertise, that dischargers that do

not utilize ponds in their treatment systems can re-achieve the

required monthly average level of phosphorus within five days of

initiating increased treatment. Dischargers with aeration or

10 A-5266-07T3

polishing ponds would need additional time, corresponding to the

number of days it takes the treated effluent to transit and exit

the pond.

The ALJ further concluded that appellants and other

upstream dischargers can comply with monitoring, testing, and

other reasonable conditions imposed by the Department incidental

to implementation of an off-season, as-needed treatment program.

In the event a discharger is unable to comply, the ALJ noted

that the non-compliant discharger could be required to treat on

a year-round basis.

The ALJ found that year-round treatment would result in use

of public resources for unnecessary introduction of chemicals

into the Passaic River and the production of additional sludge

requiring disposition. However, the ALJ also concluded that the

economic impact of year-round phosphorus treatment, even though

that treatment might be unnecessary for seventy-five percent or

four-and-one-half months of the winter season, had not been

demonstrated to be significant.

The ALJ reached five final conclusions. First, the

Department failed to make a diligent inquiry into the

feasibility of an off-season, as-needed treatment program in

initially adopting the revised WQMPs for the Passaic River

Basin. Second, such an off-season, as-needed treatment program

11 A-5266-07T3

is feasible given the current wastewater treatment technology,

assuming reasonable cooperation among the agencies involved.

Third, the costs of year-round phosphorus treatment would not

place a significant fiscal burden on upstream wastewater

treatment facilities. Fourth, an off-season, as-needed

treatment program would be environmentally protective of the

Wanaque Reservoir and its supply of safe drinking water and at

least environmentally neutral with respect to the Passaic River

and byproducts of the use of unnecessary chemicals. Fifth, the

Department has the necessary authority to implement the proposed

as-needed program.

The Commissioner rejected the ALJ's ultimate conclusion.

Instead, he concluded that implementation of such a treatment

program is institutionally impractical. He explained his

reasons in a detailed twenty-two page final decision. The

Commissioner forwarded his remand decision to the clerk in July

2012, after which we allowed the parties to submit additional

briefs.

II.

Appellants challenge the Commissioner's rejection of the

ALJ's conclusion that an off-season, as-needed treatment program

is institutionally feasible and argue that he improperly

rejected or ignored the ALJ's findings and conclusions.

12 A-5266-07T3

A.

Our scope of review of an administrative agency's final

determination is limited. In re Carter, 191 N.J. 474, 482

(2007). A court may reverse only if it "conclude[s] that the

decision of the administrative agency is arbitrary, capricious,

or unreasonable, or is not supported by substantial credible

evidence in the record as a whole." J.D. v. N.J. Div. of

Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.

2000); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575,

588 (1988); Outland v. Bd. of Trs., 326 N.J. Super. 395, 399

(1999). We accord a "strong presumption of reasonableness" to

an agency's "exercise of statutorily delegated

responsibilities." City of Newark v. Natural Res. Council, 82

N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L.

Ed. 2d 245 (1980). "The burden of demonstrating that the

agency's action was arbitrary, capricious or unreasonable rests

upon the [party] challenging the administrative action." In re

Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied,

188 N.J. 219 (2006).

Our limited standard of review of administrative agency

decisions is informed by three inquiries:

(1) whether the agency's action violates

express or implied legislative policies,

that is, did the agency follow the law;

(2) whether the record contains substantial

13 A-5266-07T3

evidence to support the findings on which

the agency based its action; and (3) whether

in applying the legislative policies to the

facts, the agency clearly erred in reaching

a conclusion that could not reasonably have

been made on a showing of the relevant

factors.

[Mazza v. Bd. of Trs., 143 N.J. 22, 25

(1995).]

Where an agency's expertise is a factor, a court defers to that

expertise, particularly in cases involving technical matters

within the agency's special competence. In re Freshwater

Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004).

"[J]udicial deference to administrative agencies stems from

the recognition that agencies have the specialized expertise

necessary to . . . deal[] with technical matters and are

'particularly well equipped to read and understand the massive

documents and to evaluate the factual and technical issues

. . . .'" N.J. State League of Municipalities v. Dep't of Cmty.

Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cnty.

Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)).

"'[W]here there is substantial evidence in the record to support

more than one regulatory conclusion, it is the agency's choice

which governs.'" Murray v. State Health Benefits Comm'n, 337

N.J. Super. 435, 442 (App. Div. 2001) (citation and internal

quotation marks omitted) (quoting In re Vineland Chem. Co., 243

N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323

14 A-5266-07T3

(1990)). The court "may not vacate an agency determination

because of doubts as to its wisdom or because the record may

support more than one result," but is "obliged to give due

deference to the view of those charged with the responsibility

of implementing legislative programs." In re N.J. Pinelands

Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App.

Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)),

certif. denied, 176 N.J. 281 (2003).

In reviewing administrative adjudications, an appellate

court must undertake a "careful and principled consideration of

the agency record and findings." Riverside Gen. Hosp. v. N.J.

Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). "If the

Appellate Division is satisfied after its review that the

evidence and the inferences to be drawn therefrom support the

agency head's decision, then it must affirm even if the court

feels that it would have reached a different result itself."

Clowes, supra, 109 N.J. at 588. If, however, our review of the

record leads us to conclude that the agency's finding is clearly

erroneous, the decision is not entitled to judicial deference

and must be set aside. L.M. v. Div. of Med. Assistance & Health

Servs., 140 N.J. 480, 490 (1995). We may not simply rubber

stamp an agency's decision. In re Taylor, 158 N.J. 644, 657

(1999).

15 A-5266-07T3

An ALJ's factual findings and legal conclusions are not

"binding upon [an] agency head, unless otherwise provided by

statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head

reviews an ALJ's decision "de novo . . . based on the record"

before the ALJ. In re Parlow, 192 N.J. Super. 247, 248 (App.

Div. 1983).

An agency head may only reject the ALJ's credibility

findings after he or she "determine[s] from a review of the

record that the findings are arbitrary, capricious or

unreasonable or are not supported by sufficient, competent, and

credible evidence in the record." N.J.S.A. 52:14B-10(c).

However, the limitation in N.J.S.A. 52:14B-10(c) does not apply

to the testimony of expert witnesses. ZRB, L.L.C. v. N.J. Dep't

of Envtl. Prot., 403 N.J. Super. 531, 561 (App. Div. 2008); see

also Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 533-34 (App.

Div. 2004); S.D. v. Div. of Med. Assistance & Health Servs., 349

N.J. Super. 480, 485 (App. Div. 2002).

B.

Applying our limited scope of review to the remand decision

in light of the record on appeal, the ALJ's decision, and the

applicable law, we conclude that the result reached by the

Commissioner is not arbitrary, capricious, or unreasonable, and

16 A-5266-07T3

that it is supported by substantial credible evidence in the

record as a whole.

The decision at issue involves the enforcement of important

water quality statutes intended to improve the quality of

drinking water in the covered area through treatment to reduce

the amount of phosphorous and then to maintain that improved

quality. The Department, because of its expertise in the field

of environmental protection, has been tasked with the

responsibility of implementing and enforcing the new

requirements for the benefit of the public. As noted above, we

are required to defer to an administrative agency's expertise,

particularly in cases involving technical matters within the

agency's special competence. Freshwater Wetlands, supra, 180

N.J. at 488-89. That deference is clearly applicable in this

case. And, as with any review of an administrative action, the

issue is not whether we would have reached the same result, but

whether the result reached by the Commissioner is "arbitrary,

capricious, or unreasonable, or is not supported by substantial

credible evidence in the record as a whole." J.D., supra, 329

N.J. Super. at 521.

As we suspected in our initial opinion, the ALJ determined

that the Department's initial rejection of appellants' proposal

for off-season, as-needed treatment was not based on any

17 A-5266-07T3

significant study or consideration of the issue. To that

extent, it was arbitrary and not supported in the record. Our

remand was for the express purpose of requiring such a study, to

be focused on the time "reasonably" required by North Jersey to

predict the need for a diversion of water to the Wanaque

Reservoir and the lead time required by upstream dischargers,

such as appellants, to decrease their effluent to the required

phosphorus level.

The Commissioner concluded that the ALJ improperly shifted

the focus of the remand by approaching the analysis from the

perspective of whether North Jersey can "wait out" the time it

would take appellants and other dischargers to bring their

effluent into compliance with phosphorus limits, thereby

requiring North Jersey to alter its mode of operations. We

agree with that assessment to the extent that the ALJ appears to

have placed the burden on North Jersey to demonstrate that it

cannot and should not be required to change its way of operation

to accommodate an off-season, as-needed treatment program.

North Jersey's Tao took the position that diversion

decisions needed to be made in as little as two days, depending

on then-existing "real-time" circumstances. The ALJ questioned

that assertion. To a significant extent, the ALJ's skepticism

was based on Lampe's testimony that a diversion prediction could

18 A-5266-07T3

be made much further in advance. Tao's testimony was a mixture

of fact and expert testimony, but his opinion was based on his

historical experience at North Jersey, along with his

anticipation that, once the water quality has been improved,

North Jersey would make more frequent diversions of water for

shorter durations than in the past, and his acknowledged

expertise in the field. Lampe's testimony was based on models

and experience with treatment in other locations, rather than

actual experience concerning the Wanaque Reservoir.

We are satisfied that the Commissioner's decision to accept

Tao's opinion rather than Lampe's was not arbitrary or

capricious. It is adequately supported in the record,

especially given the Department's expertise. Even if the ALJ

was correct that Tao's two-day estimate is sometimes too low, we

conclude that there are sufficient facts in the record to

support the Commissioner's rejection of the ALJ's conclusion

that North Jersey could reasonably predict the need to divert

water significantly longer in advance, particularly given Tao's

desire to transition to more frequent, but less prolonged,

periods of diversion.

The Commissioner also rejected the ALJ's conclusions

concerning the time necessary for dischargers to bring the

quality of their effluent to the required level prior to a

19 A-5266-07T3

diversion. He observed that the ALJ's conclusion was based

primarily on Patoczka's testimony that it would take five days

to do so, testimony the Commissioner found inconsistent with

that of other witnesses whose opinions he found more reliable,

including Wynne, Rectanus, and Bradley. The Commissioner also

noted that Patoczka had not even distinguished between

facilities with and without finishing ponds, a factor found

significant by the ALJ. Based on his weighing of the expert

testimony and other evidence, the Commissioner concluded that it

would take at least seven days advance notice, with several

additional days for facilities using finishing ponds, for

dischargers to treat their effluent to the required level.

The Commissioner further rejected the ALJ's conclusion that

there would be sufficient time for dischargers to test the water

quality adequately after treatment but prior to diversion by

North Jersey. In doing so, he relied on Patterson's testimony

that it takes a minimum of twenty-eight hours for a discharger

with an on-site certified laboratory and typically about four

days for a discharger without an on-site laboratory, although

some can take as long as ten days. Bradley testified that for

facilities without on-site laboratories, it takes one week to

get printed results back from a laboratory, and expedited review

takes about half that time. Relying on N.J.A.C. 7:14A-14.2,

20 A-5266-07T3

table 14-1, which requires composite samples for major

dischargers to demonstrate compliance, the Commissioner declined

to accept the ALJ's finding that one sample would be sufficient

to demonstrate that the level of compliance had been achieved.

Finally, the Commissioner concluded that an off-season, as-

needed treatment program would impose significant burdens on the

Department, including a need for additional staff.

Our review of the record convinces us that the

Commissioner's conclusions were not arbitrary or capricious, and

that they are amply supported in the record. Like the issue of

North Jersey's ability to predict the need for diversion, the

time-to-treat issue implicates the Department's expertise. The

Commissioner's decision to give more weight to the opinions of

experts other than those favored by the ALJ is an exercise of

that expertise. Because the Commissioner's choice finds

significant support in the record, his decision was not

arbitrary or capricious.

Having upheld the Commissioner's determination that North

Jersey cannot reasonably be expected to give significant advance

notice of a diversion and that the dischargers cannot reasonably

be expected to bring their effluent to the required standard,

including time required for testing within the time reasonably

required by North Jersey, we find that the Commissioner's

21 A-5266-07T3

conclusion that an off-season, as-needed treatment program is

"institutionally impracticable" is not "arbitrary, capricious,

or unreasonable," nor is it "[un]supported by substantial

credible evidence in the record as a whole." J.D., supra, 329

N.J. Super. at 521. Especially on a question involving the

quality of drinking water, our obligation to defer to the

Department's special expertise, Freshwater Wetlands, supra, 180

N.J. at 488-89, permits no other result on the record before us.7

Affirmed.

7

As noted at the beginning of our opinion, the appellants have

not built the required facilities and, of necessity, have not

started treatment. Once the treatment program has actually been

in operation for several years and there is actual experience

concerning North Jersey's needs and timing of diversion,

appellants can seek to revisit the viability of an off-season,

as-needed treatment program.

22 A-5266-07T3