Dear Mr. Brower:

On behalf of our membership, the New Jersey Business & IndustryAssociation (NJBIA) appreciates the opportunity to provide comments onthe proposed Water Quality and Watershed Management Rules (N.J.A.C. 7:15)(hereinafter, "Rules"). NJBIA represents 16,500 businesses that operatein all areas of the State.  The Association staff assembled thesecollective comments from input from a broad cross section of our membership.

The Proposed Water Quality and Watershed Management Rules (N.J.A.C.7:15) is an aggressive and comprehensive work that represents a great leapforward into the interface between water supply, water quality and overallenvironmental health of the streams impacted by non point sources as wellas point sources. This proposed rule is a complex blending of GovernorWhitman's Executive Order 109, the State Plan, and the delegation to theState of responsibilities under the Federal Clean Water Act. The Governordeserves a lot of credit for leading the attempt to advance the processof rational state land use and resource planning, but this is too importantan issue, with too many unanswered questions, to be forced into an endof the Administration deadline.

Unfortunately, this first attempt at integrating conflicting policiesgoes beyond the mission outlined in any of the previous legislative initiativesthat have directly addressed water planning. The plans of public agenciesmust represent a shared vision of the electorate. To be legitimate andworkable they must rest on a solid legislative foundation that representsa majority of the citizens. Also, in a period where there is a stated concernabout "justice" in environmental decision-making, government must allowthose who will be impacted by the proposed Rules a fair opportunity tounderstand how they will be effected before a rule is put in place. The current rule-making process lacks solid legislative support and guidance.The Department has stated in its Basis and Background document that itslegislative history provides the basis to conduct almost any kind of programit thinks it might want to conduct. However, most successful programs havespecific missions that are clearly articulated in one form or another froma legislative directive. There are major policy issues in play in the implementationof this rule that have not been adequately addressed by the Legislature.Without this clear legislative guidance, every major segment of New Jersey'sbusiness and labor community has opposed these Rules.

The Association has received substantial negative comments from thedevelopment community, retail merchants, realtors, manufacturers, and theconstruction sectors of our membership. Although the Association supportsthis Administration's efforts to promote sustainability in economic developmentand natural resources, we must forcefully express our member's dissatisfactionwith both the product and the process of this rule-making effort.

NJBIA has joined with other statewide organizations in the Coalitionfor Balanced Economic & Environmental Policies, a coalitionof New Jersey businesses and labor organizations dedicated to the developmentand implementation of sound and effective environmental policies, to requestthat this proposal be reworked. Besides NJBIA the Coalition includes thefollowing:

NJ State Chamber of Commerce, National Association of Industrial OfficeProperties (NJ-NAIOP, 
NJ Builders Association, NJ Association of Realtors, NJ Paint Council,NJ Retail Merchants Association,
NJ State AFL-CIO, NJ Laborers-Employers Cooperation & EducationTrust, NJ Society for Environmental Economic Development (SEED), Utilityand Transportation Contractors Association, New Jersey Farm Bureau, BuildingOwners and Managers Association of New Jersey, Consulting Engineers Councilof New Jersey, MBI American Forest & Paper Association, Chemical IndustryCouncil of New Jersey, NJ Society of Municipal Engineers, NJ Concrete &Aggregate Association, NJ Petroleum Council, NJ Groundwater Association,Building Contractors Association of New Jersey, Central Jersey BuildersAssociation, Community Builders Association, Builders League of South Jersey,New Jersey Shore Builders Association, Builders Association of NorthernNew Jersey, International Council of Shopping Centers, Laborers Local 472,Laborers Local 172, Operating Engineers Local 825, NJ Lumber Dealers AssociationAssociated General Contractors of NJ , NJ Asphalt and Pavement Association,and the NJ Bankers Association.

Based on the quantity of comments from our members and the magnitudeof general public dissatisfaction with the proposal, NJBIA requests thatthe proposed rule be withdrawn and resubmitted after legislative reviewand authorization, additional stakeholder meetings and a through redraftingof the details.

As our detailed comments will show, many of the issues are so significantthat the only recourse is to withdraw this flawed proposal.  Key issuesidentified include:

Inadequate provisions for transition of existing housing anddevelopment projects in septic areas,
Repeated expansion of Department authority beyond that specified infederal land state statutes and regulations;
Consolidation of "Czar like" development control within DEP;
Lack of clear objective standards throughout;
Use of undefined terms;
Lack of technical or scientific basis for requirements;
Inconsistencies with other existing state regulatory programs;
No stated objectives or goals for dealing with existing sources ofpollution;
Undermines intent of the State Development and Redevelopment Plan byrequiring consistency with only certain of the Plan's 300+ policies;
Ignores consideration of economic factors in wastewater planning,
Encourages exclusion and discrimination by allowing for considerationof "social" factors in wastewater planning;
Prohibits interested parties from applying for amendments, puttingall activities at the discretion of planning entities with potential conflictinginterests;
Establishes a retroactive implementation date;
Subjects activities as small as one residence on septics to all provisionsof the Rules, while exempting old cesspools built before there were standards;
Provides no means of appeal for decisions or inaction by any planningagency or the Department;
Allows for implementation of new regulatory requirements without anypublic input; and
Insufficient public and legislative understanding of the economic changesin the state's economy that will be caused by this rule.

While these comments address specific sections of the Rules that wereproposed by the Department, we are aware of a sophisticated campaign ofmisinformation generated by a number of anti-growth groups that also seekto stop this rule. These are individuals who want to halt everything everywhere.They have a history of walking away from stakeholder negotiations. We agreewith Governor Whitman when she said that, "Some opponents say they areinterested in clean water for New Jersey. But for me, it seems insteadthat they would rather end all development and the economic opportunitiesit can bring, particularly in urban areas, than admit that this measuresucceeds in allowing growth and environmental protection to coexist" The Governor truly believes that this proposal is a pro-growth plan howeverour members do not believe this. If 60% of the existing new housing permitsare in State Plan Areas 1&2, then the remaining 40% will be dislocatedor not built. An unplanned disruption of the New Jersey housing industrywill have a huge impact on the State's economy, the availability of affordablehousing and the workers employed in the supporting commerce.

We believe that if these Rules are implemented in their present form,they will create a stalemate in rural areas and threaten major developmentin the urban areas of the state. 

NJBIA supports the Governor's proposal to accelerate the permittingprocess in the "Growth Areas" with a "silver track" style program. We areconcerned about the unreasonable requests by the anti-growth activistsfor additional environmental analysis and assessment in these same urbanareas. Approved but unused capacity may or may not exist in many of theurban systems. This capacity has become know as "grandfathered capacity".This so-called "grandfathered capacity" has undergone several levels ofenvironmental review through the NJPDES/TWA process in the context of theState/Federal grant loan program application process where environmentalassessments covering wetlands, flood plains, endangered species and historicsites were studied. Lands within service areas which have been designatedprior to the current rule proposal are also subject to the individual permitprograms at DEP such as stream encroachment, wetlands, flood plain andindirectly endangered species. As a result, substantial protections existin all areas of New Jersey, whether they are rural, suburban or urban.

The attack on "grandfathered capacity" is focused on urban systems suchas Passaic Valley, Middlesex CUA, Elizabeth Joint Meeting and Rahway ValleySA, Somerset Raritan SA.  It does not make sense to use water qualityor watershed issues as a surrogate to freeze growth in areas desperatelyneeding economic activity. As it stands, the proposals that have been advancedby DEP have been ambitious and in many respects based upon largely unworkableproposals. Furthermore, the capacity that has been approved and built mustmeet current environmental standards and on a five-year renewal cycle,meet future environmental standards. If the need for upgrades is proven,then action will be taken.

The comments are divided into general comments followed by a chapter-by-chapterbreakdown of the issues and concerns raised by membership.
1Christine Todd Whitman,  "New Rule CutsPollution" Asbury Park Press August, 2000, P.10

GENERAL COMMENTS
Overall, NJBIA supports the approach of handling water quality andwater resource issues from a watershed perspective.  This approachshould and will lead to better water quality and better management of waterresources in the State.  However, there are concerns with the Rulesthat need to be addressed in order to make the process a successful processfor the environment and for industry as well.  As you will assessfrom our comments, most of our concerns are with the process and not withthe overall goals of protecting water quality and managing resources ina constructive and protective manner.

One of the major concerns with the Rules is the impact they will haveon development and growth in the State.  The Rules place a major emphasison the coordination and implementation of the three (3) major plans: 1)Water Quality Management Plans (WQMPs); 2) the Watershed Management Area(WMA) Plans; and 3) Wastewater Management Plans (WMPs).  The Rulesstate that permits (i.e., NJPDES, Water Allocation, etc.) will not be issuedunless the proposed activity or project is deemed consistent with the WQMP(Subchapter 9).  If a project is deemed inconsistent, then the WQMP,which encompasses the other two plans, would have to be amended beforea permit is issued.

The Rules specify a timeframe of at least nine (9) to twelve (12) monthsbefore a Substantive Amendment to a WQMP is processed.  This timeframe assumes that all goes well during the process (no extension of commentperiods, etc.) and does not include the time needed to issue the permitsthemselves, which could add additional months to the overall process ofobtaining approvals.  In all likelihood, projects (i.e., expansionof facilities or increase in production) could be delayed for up to two(2) years.

The NJBIA urges the New Jersey Department of Environmental Protection(NJDEP) to evaluate the process and to streamline it wherever appropriateto avoid unnecessary delays.  The goal should be protecting waterquality and not conforming to an administrative process.  With thoseanticipated delays, certain organizations may choose to move operationsto other states where permits are expedited in a more realistic timeframe.

Another concern raised by membership is how the NJDEP will handle currentapplications in the NJDEP while the Rules are being promulgated. Some of our members have been notified by the Permitting Bureaus in theDivision of Water Quality that their activity might or will trigger additionalstudies (i.e., ambient water quality studies and other planning requirements)before their permits are issued.  The NJDEP has invoked the privilegesset forth in Executive Order (E.O.) #109 which allows the NJDEP to requireadditional plans/studies it deems appropriate to protect water qualityand water resources.

The NJBIA urges NJDEP to follow current the policy and not invoke E.O.#109 until the Rules have been promulgated.  To begin implementingthese Rules prior to receiving comments from the public and the regulatedcommunity is unfair and inappropriate and will lead to unnecessary delaysand confusion.

Another overarching comment on the Rules is that they do not providea cost analysis on how the planning aspects of the Rules will impact smallbusinesses and industry throughout the State.  Although NJBIA understandsthat these Rules are primarily administrative in nature, an attempt shouldbe made to address the economic impact the Rules will have on the regulatedcommunity.  With regards to the economic impact of the Total MaximumDaily Loads (TMDLs), NJBIA assumes that an economic impact analysis willfollow once the TMDL methodology is defined.

The Rules make reference to the State Development and RedevelopmentPlan (SDRP).  This reference should be removed throughout the Rulessince the SDRP has not been promulgated and is merely a reference documentat this time.  To reference it in these Rules is inappropriate andlacks justification.

The Rules do not layout an appropriate appeals process if there is aproblem with any of the Plans or with the development of a TMDL. It also lacks detail on the enforcement behind the implementation of thesePlans.  Will enforcement remain with permits or will the Plans themselvesbe an enforceable mechanism?  Further clarification on these issuesis needed.

SPECIFIC COMMENTS

SUBCHAPTER 1: GENERAL PROVISIONS AND POLICIES

1. N.J.A.C. 7:15-1.1(b) 9: NJBIA believes that this paragraph shouldbe deleted.  This paragraph "sets forth the requirements for the .coordination and integration of proposed activities with the State Developmentand Redevelopment Plan". As stated previously, the SDRP is a planning toolwith no regulatory authority and has also not been subject to a formalpublic review process.  As such, there should not be an absolute requirementto coordinate or integrate proposed N.J.A.C. 7:15 activities with the SDRP. At most, this section should require consideration of the SDRP during theimplementation of N.J.A.C. 7:15 requirements.  If this section isnot deleted, NJBIA suggests the wording be revised similarly to the following:"9. Consideration of the State Development and Redevelopment Plan duringdevelopment of proposed N.J.A.C. 7:15 activities (see, generally, N.J.A.C.7:15-8)."  Whereas this may be an appropriate goal, it should notbe a requirement.

2. N.J.A.C. 7:15-1.1(c)1: NJBIA believes that "standards" should bedeleted from this paragraph so that (c)1. states "The purpose of this chapteris to establish policies and procedures (and standards)...". Standardsfor ground water, surface water and drinking water are addressed in otherchapters.  N.J.A.C. 7:15 addresses policies and procedures.

3. N.J.A.C. 7:15-1.1(c)2(i) : The NJBIA requests that the NJDEP revisethe language by adding the words "to the maximum extent practicable"after the words "fishable and swimmable" as per the 4/30/99 minutes ofthe Stakeholders meetings.  Certainly not ALL wetlands should be considered"swimmable and fishable" due to their size, location etc. but the way theparagraph is currently worded it includes all wetlands along with streams,rivers etc. to be swimmable and fishable.

4. N.J.A.C. 7:15-1.2(a)1(i): NJBIA believes that "desired" should bedeleted from this sentence so that it reads "Protect existing, ordesignated (or desired) uses".  Desired uses are not a defined termin the context of New Jersey's water Rules and regulations.  As such,it is somewhat arbitrary and open to misinterpretation (e.g., desired bywhom?).  Further, the establishment of "desired" uses which are morestringent than designated uses without amending N.J.A.C. 7:9B (SurfaceWater Quality Standards) exceeds Federal requirements without justification.

5. N.J.A.C. 7:15-1.2(a) - Establishes the overall goal which includescoordinating with regulatory and non-regulatory programs established bythese and other relevant Rules.  What are the non-regulatory programsreferred to?  These should be listed.

6. N.J.A.C. 7:15-1.2 (a)-References water related resources. This term is undefined.  The rule should specify what is includedin the water-related resource category to provide clarity.

7. N.J.A.C. 7:15-1.2 (a) 1.  Establishes objective to maintainwater quality that is better than the surface and ground water qualitystandards.  The Clean Water Act establishes the goal to maintain thedesignated use, not the water quality.  What authority does the Departmenthave to mandate maintenance of water quality where it is better than theSWQS and supports the designated or actual use?

8. N.J.A.C. 7:15-1.2 (a)1.i includes reference to desired uses of surfaceand ground waters.  What are desired uses?  This provision shouldbe consistent with the language in the Clean Water Act.

9. N.J.A.C. 7:15-1.2 (a)1.iii.-Refers to water related ecosystems. This term is undefined and could be interpreted to be all ecosystems. This term must be defined.

10. N.J.A.C. 7:15-1.2(a) 3 - Establishes the objective to achieve thegoal of no net decrease in surface water base flow.  What data doesthe Department have to support the need for this zero tolerance requirement? A zero tolerance policy is impossible to meet.   What is thetechnical bass for a no net decrease requirement.   Where doesthe Department get the authority for such a requirement?

11. N.J.A.C. 7:15- 1.2(a) 3. - As noted above the term water-relatedresources needs to be defined.

12. N.J.A.C. 7:15-1.2(a)5: NJBIA agrees with the provisions as wordedthat "flooding is not exacerbated and stream channels and riparian habitatare protected".

13. N.J.A.C. 7:15-1.2(a)6-Establishes an objective of no net increasein the annual post-construction load of nonpoint source pollutants exportedas runoff from proposed land use changes.  Such determinations shouldbe done on a watershed basis, not a site-by-site basis.  There isno scientific basis for doing such studies site by site; thus any findingsfrom such limited area studies would not be technically defensible. Whatis the technical basis for this requirement?  Where does the Departmentget the authority for such a requirement?  This provision addressesland use changes (AKA new development) only.  This is inconsistentwith prevailing opinion that the most significant sources of nonpoint pollutionare existing development and agriculture.  The Department has madeclear that it is the intent of these Rules to address these sources throughthe Watershed Management Planning process, yet there is on stated objectiveto reduce the nonpoint source loads from these sources.  This objectivemust be added.

14. N.J.A.C. 7:15-1.2 (a) 9. - Establishes the objective of coordinationand integration with the water and water-related policies of the StateDevelopment and Redevelopment Plan.  How can this objective be metif an applicant is limited to these select policies?  What is therationale for limiting coordination and integration to just these policies? How will this objective be met by requiring a showing of coordination andintegration for less than 20% of the policies in the SDRP?  This istoo narrow an application, which will not provide for coordination andintegration.  Water resources are only one aspect of the State Plan(SDRP).  To selectively choose these policies undermines the overallbalance of the SDRP.  Further upon review of the policies there aresome included which have nothing to do with water and some which are directlyrelated to water quality are not included.  The proposed rule languagedoes not support this stated objective.  Thus the objective must bedeleted or the rule changed. NJBIA objects to use of a non-regulatory document?

15. N.J.A.C. 7:15-1.2(a) 10 - Refers to threatened, endangered and rarespecies and habitats.  The Department's authority in these cases islimited by statute which addresses only endangered species and habitats. Where does the Department get the authority to broaden this to includethreatened and rare species?  Without such authority this objectivemust be deleted.  Several terms in this objective are undefined, furtherclouding what the actual objective is.  These terms, rare species,water related resources, and sensitive ecosystem must be defined

16. N.J.A.C. 7:15-1.2(a) 11. - Establishes a goal to support activeand passive water related recreational opportunities to the extent thatthey don't adversely impact water quality, water supply, human health andecological goals.  What are examples of activities, which would haveno impact? 

17. N.J.A.C. 7:15-1.3 (a) includes the term environmental infrastructureto include wastewater, storm water and water supply.  Is this termlimited to these specific items or are there others?  This shouldbe clarified.

18. N.J.A.C. 7:15-1.3(a) 3.-Encourages the reuse of wastewater. Not only do the existing DEP regulations not encourage the reuse of wastewater,in many instances such reuse is not allowable.  The first step inmeeting this stated objective would be for the DEP to take the necessaryactions to allow for meeting this objective.  Current regulatory programsput the burden on the regulated community.  Until such time as DEPcan make the necessary programmatic changes this objective should be deleted.

19. N.J.A.C. 7:15-1.3(a)2 and 4: Since 7:15-1.3(a) 2 includes provisionsfor considering "economic" as well as environmental and social reasons,NJBIA believes that to be consistent, 7:15-1.3(a) 4 should be revised toinclude "economic" considerations as follows: ".... that consider environmental,social, economic and institutional factors....".

20. N.J.A.C. 7:15-1.3(a)4: NJBIA believes that the phrase "with plansendorsed by the State Planning Commission" should be deleted so that thesentence reads as follows: "The use of innovative technologies and decentralizedsystems in communities (with plans endorsed by the State Planning Commission)where they are adequately financed, managed and maintained to achieve environmentallyand cost-effective operation are encouraged."  The need for a StatePlanning Commission endorsement appears to be unnecessarily limiting andwithout legislative or regulatory basis.

21. N.J.A.C. 1.3(a) 4. This objective requires analyses of alternativesthat consider environmental, social, and institutional factors.  Economicfactors are not listed.  Alternative analyses must include an assessmentof economic factors as well.  To ignore issues of economics is unrealistic. This objective must be modified to include economic factors.  This section also requires consideration of the "desires" of the affectedcommunity.  This is so subjective as to preclude the possibility ofever meeting this objective.  The term desire should be struck leavingthe requirement as consideration of the input of the affected community.This objective also encourages use of innovative technologies and decentralizedsystems, but only in communities with plans endorsed by the State PlanningCommission.  With an overall goal of improving water quality suchsystems should be encouraged in all areas where the goals of the subchapterare met.  This objective must be revised. References to endorse plansshould be struck, as there is currently no regulation detailing the processfor review and approval of such plans by the SPC.  Until such timeas this issue is resolved the terms can not be implemented in other stateregulations.

22. N.J.A.C. 7:15-1.3(a) 5.  Encourages wastewater management planningat the appropriate jurisdictional level.  Who would determine whatlevel this should be?  How would this determination be made? This objective needs to be clarified.

23. N.J.A.C. 7:15-1.3 (a) 6.  This objective should be appliedto watershed level plans only.  To require that small-scale projectsaddress direct, indirect and cumulative impacts of wastewater facilitiesand development is unrealistic.  To make such assessments requiresthat the watershed studies be completed.  This objective should bechanged to require such determinations be done only for watershed levelplans.

24. N.J.A.C. 7:15-1.4(a)3: Will the Municipal Land Use Act be revisedto incorporate the Rules?  If not, how will the NJDEP convince municipalitiesto cooperate in the process?  Further clarification is needed.
 

25. N.J.A.C. 7:15-1.4 (a) 1 - Please provide the statute or other sourceby which the Department has the authority to selectively implement theState Plan.  This language states that substantive amendments areto be integrated and coordinated with those policies of the State Developmentand Redevelopment Plans that support water resource protection.  TheSDRP is a comprehensive document that is supposed to provide a frameworkfor future development in the state. To select only certain policies tobe met without any regard to other policies in the SDRP serves to negatethe overall intent of the SDRP.  The SDRP is not a water resourceprotection document.  The State Planning Act establishes the goalof providing statewide planning to not only provide protection of environmentalquality but also to "provide needed housing and adequate public servicesat a reasonable cost while promoting beneficial economic growth, developmentand renewal."(N.J.S.A. 52:18A-196 et. seq.)  To select only thosepolicies which speak to water resources protection is not consistent withthe legislative intent. 

26. N.J.A.C. 7:15-1.4(a) 3 - The requirement that existing local landuse zoning and ordinances are reviewed to be consistent with plans andmodifications adopted under this chapter is inconsistent with existingMunicipal Land Use Law and the Residential Site Improvement Standards. Municipal ordinances must be consistent with the Residential Site ImprovementStandards.  If a watershed plan is adopted which includes a requirement,which is inconsistent with the standard, how is a municipality to comply? The RSIS must be met.  This section should be changed to reflect theprimacy of the RSIS and MLUL.

27. N.J.A.C. 7:15-1.6 (a) 3 - The stated objective to ensure the timelyreview of plans and modifications is not supported by the regulatory language. While the rule establishes timeframes for the Department in Subchapter9 there is no recourse for an applicant when the Department misses oneof these deadlines.  To meet this objective the rule language mustbe changed to provide for this situation.  Such applications shouldbe deemed acceptable. Without this change this objective must be deleted,as it is not supported by the rule.

28. N.J.A.C. 7:15-1.6(a)4: NJBIA believes the NJDEP should revise thefirst sentence of this section to read as follows: "Encouragement of costefficient and effective approaches to the development."

29. N.J.A.C. 7:15-1.6(a)5: The NJDEP seeks to allow the use of informationfrom "generally recognized sources readily available to the public". However this information and data needs to meet at least a minimum standardfor scientific validity and reliability and not just information gatheredfrom a single laboratory experiment or analysis.  Data gathered shouldat least meet the minimum quality requirements spelled out in N.J.A.C.7:15-3.2(e)1-3 for use in identification of Water Quality Limited Segments.

30. N.J.A.C. 7:15-1.7(b) 4: After the word "resources" in thefirst sentence, add the following second sentence,   "Emphasisshould be placed on the most cost effective, least intrusive action, includingnon-regulatory action that will achieve the desired results".

31. N.J.A.C. 7:15-1.8 -The definition of approved sewer service areaneeds to be clarified.  As written an approved sewer service areais that area identified in a proposed modification (which is sewered, permittedor planned) after is has been adopted.  Does this include alreadyapproved SSA or just those approved in the future, under these Rules? 

32. N.J.A.C. 7:15-1.8 - The definition of existing water quality isconfusing, as it is inconsistent with the term used in other definitionsin this rule.  For sewer service area, the term existing is used tomean that which currently exists.  For water quality the term is usedto mean something other than that which currently exists.  It meansa quality of water that that is better than the SWQS.  It does nothave any connection to the current actual water quality.  This termshould be defined as high quality water.  This is more descriptiveand will result in less confusion.

33. N.J.A.C. 7:15-1.8 - The definition of expanded discharge includesthe term "flow conditions".  In addition to actual flow, what wouldthis include?  If it only includes flow the term condition shouldbe deleted.  If there are other parameters included these should bespecified.

34. N.J.A.C. 7:15-1.8 - The definition of headwaters includes the termfirst order stream.  This term should be defined.  The definitionincludes all blue line streams.  What is the basis for such a broaddefinition?  This is a significant departure from other definitionsused by the Department, the Army Corps of Engineers and from that recommendedby New Jersey Clean Water Council.  There must be convincing technicalrationale for such a change and none is provided in these Rules. The Department must be consistent in the definitions and application ofterms across regulatory programs.  This definition should be changedto parallel that used in other regulatory programs.

35. N.J.A.C. 7:15-1.8 - The definition of impervious cover lacks anyscientific criteria making it vague and extremely broad.  Further,this definition is inconsistent with other DEP regulatory definitions ofthis term including that recently adopted in the coastal Rules (N.J.A.C.7:7E).  As written, this definition could be interpreted to mean anysurface.  The definition should be revised to delete the term "reduces"leaving the definition to address those surfaces that prevent absorption. 

36. N.J.A.C. 7:15-1.8 - The definition of permitted flow referencesa Treatment Water Approval.  This should be a Treatment Works Approval.

37. N.J.A.C. 7:15-1.8 - The definition or riparian corridor is consistentwith land meeting the definition of wetlands.  The regulation of wetlandsis preempted by statute and therefore cannot be included in this rule. 

38. N.J.A.C. 7:15-1.8 - The definition of riparian corridor buffer referencesthe top of bank.  The top of bank is not related to the corridor andcan not be used as the regulatory reference point.

39. N.J.A.C. 7:15-1.8 - The definition of self-contained treatment worksshould read, a treatment works that utilizes on-site effluent dischargeor (not and) an on-site water supply.

40. N.J.A.C. 7:15-1.8 - The definition of threatened species includesreference to a New Jersey statute.  There is no statutory authorityin New Jersey regarding threatened species.

41. N.J.A.C. 7:15-1.8 - The definition of upgrade should be modifiedto allow for an automatic amendment for upgrades that include an increasein flow, as long as the loads are not increased.

42. N.J.A.C. 7:15-1.8: NJBIA believes that the phrase "water qualitygoals" should be deleted from the definition of assimilative capacity sothat assimilative capacity is defined as "the total loading rate of a pollutantthat can be received by a water body from all sources, while still maintainingsurface water quality standards, water quality goals, and use(s). A TMDL quantifies the assimilative capacity of a water body segment fora particular pollutant and for a particular set of pollutant loads." Since a TMDL quantifies the assimilative capacity and considering thatTMDLs are based on water quality standards, it is inappropriate to includewater quality goals in the definition of assimilative capacity. 

43. N.J.A.C. 7:15-1.8: NJBIA believes that the definition of  "existingwater quality" should be revised by deleting the second sentence, "In thosecases where point source discharges are located upstream of the referencestation, water quality shall be adjusted by the Department to accommodatethe anticipated effects of the constituents discharged at permitted concentrationsand committed flow, provided that the adjustment shall not cause an excursionof any surface water quality criteria."  The effects of existing upstreampoint source discharges are already reflected in the water collected fromthe reference station, and the NJDEP should not arbitrarily adjust measuredresults, which actually represent existing water quality.  Further,adjustments based on permitted concentrations and committed flows are arbitraryand unrealistic, particularly where multiple upstream discharges may exist. If adjustments are necessary, actual point source flows and concentrationscorresponding to the reference stations sample times should be used.

44. N.J.A.C. 7:15-1.8: NJBIA believes that the definition of "Ripariancorridor buffer" should be deleted or revised to allow flexibility in thedetermination of the buffer width. The definition is new and proposes toestablish buffer limits as follows: "Riparian corridor buffer means theland area within 150 feet of the top of the bank along any FW1 or FW2 TroutProduction designated waters or within 75 feet of any FW2 designated waters". This appears to establish a new regulatory buffer limit around many ofNew Jersey's fresh water bodies without presenting an economic, socialor Federal standards analysis of the impact of the new buffer limit. The potential economic impacts to the owners of developed and undevelopedlands that can be developed located within the proposed buffer limits mustbe considered.  NJBIA is also unaware of any legislative authoritysupporting the proposed buffer limits.

45. N.J.A.C. 7:15-1.8: NJBIA believes that the definition of "waterquality goal" should be revised to be compliance with the surface waterquality standards, consistent with 40 CFR130.0(b), which states "waterquality standards (WQS) are the State's goals for individual water bodiesand provide the legal basis for control decisions under the Act." NJBIA believes there is no regulatory basis for the NJDEP to propose establishinga water quality goal as a "desired water quality".  Furthermore, anyproposed change to a water quality goal should be proposed for public commentas an amendment to N.J.A.C. 7:9B, and not simply through adoption of asubstantive amendment to an areawide WQMP, as stated in the proposed definition.

46. N.J.A.C. 7:15-1.8: NJBIA believes that the definition of "watersupply allocation permit" should be revised to be a permit required orissued in accordance with N.J.A.C. 7:19 to ensure the need for a watersupply allocation permit is not misinterpreted by the proposed definition. Some definitions, such as point source, may not be entirely consistentwith Federal definitions.  It is important to note, for purposes ofTMDLs, that some point sources are subject to NPDES permits and will thenbe assigned Waste Load Allocations (WLAs); while other point sources (asdefined by NJDEP), such as certain stormwater discharges, are not subjectto NPDES permits and will be assigned Load Allocations (LAs).  Thisshould be clarified.

47. The NJDEP should define what a Substantive Amendment (SA) is andshould incorporate such definition into this Subchapter.  The NJDEPshould set minimum thresholds, wherever possible, for when a project willbe deemed to require a Substantive Amendment to a WQMP.  For example,Subchapter 9 states that if a wastewater flow is greater than what is specifiedin a WMP, that would trigger a SA to a WQMP.  As stated earlier, thiswill inevitably lead to significant delays in obtaining permits if a facilitywanted to increase production.   The NJDEP should clearly identifysituations where a SA is not appropriate.  By defining what constitutesa SA, the NJDEP will minimize or avoid arbitrary decisions by the responsibleagencies on what is a SA.

SUBCHAPTER 2: PLANS, PLANNING ENTITIES, AND PLANNING RESPONSIBILITIES

48. Subchapter 2 discusses areawide WQMPs, WMA plans and WMPs. With respect to WMPs, the Rules do not state how WMPs will relate to, orwill affect a current wastewater discharge permit issued by a POTW. Will the WMP absorb the wastewater discharge permit? Someone could arguethat if the targeted parameters are similar, that the wastewater dischargepermit can be used in lieu of the WMP or vice versa.  Further clarificationis needed on how existing permits will be affected by WMPs and by the otherplans as well.

49. N.J.A.C. 7:15-2.2 (d) - Requires that the Department and designatedWQM Planning agencies maintain and make available current WQM plans andmodifications.  This is a very important issue as it has been difficultto obtain documents.  To eliminate past problems, such documents shouldbe made available electronically.  Currently, applicants are oftenrequired to submit electronically.  Past documents could be scannedin and made available.

50. N.J.A.C. 7:15-2.2 (e) - This section states that if any elementof an areawide WQM Plan conflicts with this chapter, this chapter controls. How does this relate to existing, adopted WQM Plans?

51. N.J.A.C. 7:15-2.6 discusses how the NJDEP is included in the formationof Public Advisory Committees (PACs) and Technical Advisory Committees(TACs), but it is unclear how are these members (particularly for the TAC)are designated.  If the selection of members is up to the NJDEP, itwill be difficult to ensure that the TAC/PAC represents the interests ofall parties within the watershed.  Additionally, how many personswill comprise a PAC?  Will there be a limit set?  Will the NJDEPmediate the PAC?  How will differences be resolved and will therebe set timeframes to resolve such differences?  Further clarificationis needed. If the designated party member is a competitor of another organization,disputes resolution will become a significant issue; therefore, the TAC/PACmembers should be agreed upon by consensus, by all of the organizationswithin the watershed.

52. N.J.A.C. 7:15-2.7 discusses the designation of Watershed ManagementGroups (WMGs) to represent the various users' interests.  A NJDEPappointed WMG cannot be ensured to represent everyone's interests. A consensus should be reached by all on who belongs to a WMG and theirauthority limited.

53. N.J.A.C. 7:15-2.6 (g) 7 - States that the PAC shall establish subcommitteesincluding one or more technical advisory committees (TACs).  2.6 (h)states that a TAC may be established.  Are TACs mandatory or optional? These two sections appear to be contradictory.

54. N.J.A.C. 7:15-2.6 (i) - Establishes the requirements for the membersof the Technical Advisory Committee.  This committee is to addressspecific technical issues, yet there is no requirement that any of theTAC members have technical expertise.  To allow for a technicallyaccurate and defensible process, these individuals must be required tohave technical expertise related to the development of TMDLs. 

55. N.J.A.C. 7:15-2.7 - Addresses the establishment of watershed managementgroups.  This additional level of activity is confusing.  Whyis this level needed in addition to the Watershed Management process?  These groups seem to have no special role in the development of the WatershedManagement Area Plan, thus at a minimum to avoid confusion the name shouldbe changed.

56. N.J.A.C. 7:15-2.7 (b) - Some of the functions of the WMG are duplicativeof those assigned to the Public Advisory Committee and Technical AdvisoryCommittee.  At 2.7 (b) 3 a WMG activity is defined to include waterquality and quantity monitoring, water quality modeling or assessment ofthe condition of the watershed.  These are highly technical functionsthat should be done by either a TAC that is composed of individuals withthe necessary expertise or by the Department.  Unqualified stakeholderscannot perform these tasks.  2.7 (b) 4 states the WMG shall developpolicy goals to reduce the amount of pollutants discharged into a watershed. The development of policy goals was already assigned to the PAC at 2.6(g).  When such goals conflict which will be implemented?  Suchpotential contradictions must be addressed in the regulations.

57. N.J.A.C. 7:15-2.7(b) 6 - establishes that the WMG shall developa watershed management strategy.  This section specifies that thewatershed management strategy will address one or more watersheds but itdoes not specify what this strategy is to include or accomplish. The rule must be revised to provide clear direction on what a watershedmanagement strategy is, how it is to be developed, who reviews and approvesit, how the PAC or TAC or the Department are involved, etc.  Withoutthis clarification this provision must be deleted. 

58. N.J.A.C. 7:15-2.7 (d) - The required information to be submittedto the Department with the request for recognition as a watershed managementgroup does not include any requirement that there be an existing PAC orTAC or any on going watershed planning process as defined in 2.5. To allow for the establishment of these groups without there first beingan on going watershed planning process and second without the direct involvementof this process will promote inconsistencies in the overall watershed planningprocess.  WMGs should not be established without the acknowledgment,approval and participation of the Department sponsored watershed-planningprocess. 

59. N.J.A.C. 7:15-2.7 (f) - Establishes that WMG apply to the Departmentfor funding.  There is no role for the PAC.  Funding should notbe granted to any WMG without the approval of the PAC.  The PAC hasthe overall responsibility for making policy recommendations for the watershedmanagement area within which the WMGs will be operating.  The PACand TAC are the groups that should have overall responsibility for makingdecisions on where and how funds are spent.  If the PAC and TAC donot have this responsibility what is the point in establishing them? 

60. N.J.A.C. 7:15-2.8 (b) - references WMP agencies.  The ruleshould include a listing of these agencies. Meaningful comments on thisissue can not be submitted without an understanding of what these agenciesare.

61. N.J.A.C. 7:15-2.8 (b) - Restricts anyone other than the WMP agencyfrom submitting a WMP, WMP update or other wastewater-related revisionsor substantive amendments.  This prohibition on landowners, developers,private utilities or others from submitting a request for an amendmentto the WMP violates the basic rights granted to property owners in theUntied States Constitution.  In many instances the local approvalprocess as defined in the MLUL and through local ordinance may prohibitthe cooperative relationship needed to have the WMP agency take actionon behalf of the landowner or developer.  Even though a project maybe consistent with local zoning and all other planning documents and localregulation there may be resistance on the part of municipality to appearto embracing a project.  This prohibition on allowing the interestedparty to approach the Department will serve to exacerbate the NIMBY attitudethat is prevalent in New Jersey today.   This provision shouldbe changed to accommodate such circumstances.  Where an applicantcan show that a project is not inconsistent with any local requirementand has made every effort to get the WMP agency to make the applicationthey should be allowed to make the application independent of the WMP agency. To preclude this option will subject applicants to the whims of electedofficials without any of the protections provided in statutes and rules.

62. N.J.A.C. 7:15-2.9 (b) - The WMP agency should be required to makethe current WMP and all approve modification really available.  Whensuch documents are not made readily available the ability to access thisplanning process is limited. 

63. N.J.A.C. 7:15-2.9 (c) - specifies the WMP agencies are to notifyother WMP agencies of changes to the WMP to the "extent required by theDepartment".  Why is this extent not specified in the rule? All impacted WMP agencies should be notified of all changes that impacttheir WMP.  If there are instances where the Department would notrequire such notification, they should be specified in the rule. This section goes on to state that where changes in one WMP will resultin another WMP lapsing or being superseded such updating shall not be required. Any change in a WMP that affects another should require full notificationand updating of all impacted WMPs.

64. N.J.A.C. 7:15-2.10 (a) - the word unless should be changed to untilto be consistent with 2.12 (a).

65. N.J.A.C. 7:15-2.10 (b) - the word unless should be changed to untilto be consistent with 2.12) a).

66. N.J.A.C. 7:15-2.11: The NJBIA requests that the language be modifiedto include an interested party review and comment period when designatinga new WMP agency.

67. N.J.A.C. 7:15-2.12 (b) and (c)  - states that all pending applicationsmust be published in the New Jersey Register prior to the effective dateof the Rules in order to be subject to the prior version of the chapter. This should be changed to use the date of filing of the application asthe cutoff for consideration under the prior Rules.  Unfortunately,experience has shown that during the period of time from rule proposalto rule adoption, Department staff are reluctant to move pending applicationsto the publication stage thus forcing all pending applications to be consideredunder the new Rules.  This practice significantly impacts many projectsthat have been subject to extensive planning and Department review at greatcost.  To eliminate this discretion to Department staff the cutoffshould be for all applications that have been filed as of the effectivedate of the Rules.  These applications will all have been subjectto review under Executive Order 109, thus eliminating concern about insufficientreview.

SUBCHAPTER 3: WATER QUALITY LIMITED SEGMENTS LIST

68. N.J.A.C. 7:15-3.2(a): The definition of a "water quality limitedsegment (WQLS)" as not meeting water quality standards allows for a broadand possibly arbitrary interpretation.  The NJBIA urges the NJDEPto create a clear, unequivocal definition of WQLS.  The proposed definition,"does not meet water . . . .quality standards," is too vague to give stakeholdersa clear understanding of what impairment means.  It's clear that astandard is not met when a numerical criterion is exceeded in the watercolumn all of the time.  But what if the criterion is only exceededoccasionally?  Stakeholders need clear understanding in several areaswhere a broad range of interpretation may otherwise exist.  The NJBIAurges the NJDEP to require the following in any definition of WQLS:

The minimum number, type, and duration of samples neededto form a basis for a technically valid determination that a waterbodydoes not meet standards;

The acceptable age of the analytical results used in the determination. Only data reflective of current conditions should be used;

The percentage of samples which must exceed the criterion for a waterbody to be classified impaired. The NJDEP should clearly state that nofish advisory should, by itself, be a basis for listing a water as WQLS,since a water quality criterion has not necessarily been exceeded, norhas a designated use necessarily been lost.  A "fishable" use, forexample, is not lost, since waters may still be fished, and fish may stillbe eaten.  Fish advisories are not set at the level where harm isknown to occur; rather, they are set at a level below which safety occurs. Also, in many if not all states fish advisories are not subject to administrativeprocedures.  For these reasons, a fish advisory by itself is not sufficientto create a listing.

70. The identification of these "threatened waters" is an acceptableactivity.  However, these identified "potentially threatened waters"should NOT be placed on a 303(d) list with a schedule for completion asan "impaired" water. The State should first focus their resources on knownimpaired waters.  New Jersey again is attempting to be out in frontof the federal rules.  Instead of trying to solve all problems atone time with our limited resources, within a tight time frame, Let usconcentrate on known impaired waters and as these are improved move ontothose waters that might be impaired.

71. N.J.A.C. 7:15-3.2 (f) - The Department should not accept any data,for any use if it does not meet the QA/QC requirements spelled out 3.2(e).  Data, which do not meet the minimal criteria standards specified,must not be accepted.  This language should be deleted.

72. N.J.A.C. 7:15-3.3 (a) - The criteria for the Department's proposedranking of water quality limited segments as high, medium or low lack objectivestandards or thresholds of any kind.  This is too subjective. If the Department is to rank the segments the criteria must be clearlystated and easily determined.  There are 8 factors listed yet thereis no indication of how each will be weighted.  This detail shouldalso be provided.  There is also no discussion of how the rankingswill be used.  This information should be provided.

73. N.J.A.C. 7:15-3.5 - There is no process for the appeal of a Departmentdecision on the WQLS List.  Such a process should be established.

74. As stated earlier, the NJDEP's proposal requires a listing of waterbodiesthat are impaired but which are expected to meet water quality standardsby the next listing cycle.  Under current EPA regulations and policy,a state can exclude a waterbody from its §303(d) list if the waterbodyis not currently meeting water quality standards, but is "expected to meet"those standards by the next listing cycle.  40 CFR 130.7(b)(1). We see no pressing need for listing these waterbodies, which will requireTMDLs.

75. N.J.A.C. 7:15-3.2(d)(2): Waters should not be listed based on biologicalor narrative criteria unless there is objective, quantitative and verifiableevidence showing an impairment.   In the Rules, the NJDEP statesthat narrative criteria are a basis for including a waterbody on a State§ 303(d) list. Without adequate procedural safeguards, waters couldbe listed based on these general, qualitative criteria without any objective,quantitative proof of impairment.  Listing decisions based on biologicor narrative criteria raise genuine issues of subjectivity.  The NJDEPwill likely face legitimate and possibly numerous challenges to such listingdecisions as arbitrary and capricious, or otherwise in violation of a discharger'sdue process rights.  Moreover, the NJDEP will have to develop quantitativetargets anyway in order to develop a TMDL, and it makes little sense tolist a water first and then search for a quantitative basis to use in restoringthe waterbody.  The quantitative work should be done beforehand, foruse in making the listing decision, not after the decision has alreadybeen made. To implement these principles, the NJDEP should provide in theRules that biologic and narrative criteria should not be used to make listingdecisions unless specific quantitative procedures and criteria has beendeveloped to determine when and to what extent a waterbody's biologic ornarrative criteria are impaired.  Unless there is objective, quantitativeand verifiable evidence showing an in-stream impairment, the waterbodyshould not be listed.

76. N.J.A.C. 7:15- 3.2(e): The NJBIA supports the need for credibledata meeting minimum data requirements.  The NJDEP should make listingdecisions on recent data, which should be no more than 3-5 years old. The data set should be representative over time, i.e., it should not becomprised disproportionately of data from one particular time period, suchas the first year of the 3-5 year period, or of data collected immediatelyafter an unusual weather event.  Data from wet weather or other episodicevents should only be used if the applicable criteria have been developedto address those events.

The NJDEP should ensure that in evaluating a waterbody forlisting, the data set considered is representative of the entire waterbodybeing evaluated, and is not comprised disproportionately of data from asmall area of the waterbody.  The NJBIA supports the NJDEP's requirementto use only data collected under approved QA/QC project plan to identifyWQLSs.  The NJDEP should also require Quality Assurance Project Plans(QAPPs) in developing TMDLs. In guidance, the NJDEP should specify thekey components that should be included in each QA/QC project plan. Thosecomponents should include the following elements:

 .Quality data collection, data validation and data transfer ina reliable and technically valid Method;
. Project specific QAPPs to document planning results for environmentaldata collection, including:
Project management;
Problem definition;
Detailed time line of project;
Background information;
Specific Project Quality objectives and performance criteria
. Measurement and data acquisition - data must be valid and meaningful
Detailed project specific methods of data collection, handling, measurementand analysis of samples; 
Standardized methods and procedures for data collection, validationand verification;
Quality Control requirements, including matrix spikes, duplicate samples,blanks, lab QA/QC samples;
Laboratory certification;
Record keeping, chain of custody, database management
. Assessment/oversight
Description of responsibilities; 
Project assessment including reviews, audits, performance evaluations,and reports of project activities;
. Data review, validation, and usability
Description of consistently used criteria to review and validate data,including calculations and algorithms;
Data verification process including details of Chain of Custody, datareview for transmittal errors, detection limits, holding times, and statisticaltreatment of the data;
Procedures to address precision, bias, completeness of project data;

77. The NJDEP should specify a minimum number of samples requiredto constitute a technically valid determination that a waterbody does notmeet standards.  Some States have already developed such requirements;for example, Texas requires that there be at least 9 samples at a sitefor conventional parameters such as pH, temperature and dissolved oxygen,and at least 5 samples at a site for other parameters.  The NJDEPshould specify the percentage of measured values in a data set for a waterbodythat must exceed the standard in order for that waterbody to be classifiedas WQLS. Some States have already adopted such requirements.  Forexample, Texas classifies a waterbody as impaired for acute aquatic standardsif more than 10% of the measured values exceed the standard.  Forchronic standards, a waterbody is classified as impaired if the mean ofall values over the most recent 5-year period exceeds the standard. As with the minimum number of samples, the NJDEP would not be requiredto use any particular numerical values. 

78. N.J.A.C. 7:15-3.2(f): The NJDEP should NOT ACCEPT data that do notmeet the data quality criteria at N.J.A.C. 7:15-3.2(e) to identify WQLS. However, the data MAY be an indication that further ambient monitoringshould be performed in accordance with N.J.A.C. 7:15-3.2(e). If poor qualitydata is used to identify a WQLS that really isn't a problem, and the segmentis placed on the 303(d) list then limited resources will be forced to beused and taken away from known impaired water problems.

79. The NJBIA recommends that in N.J.A.C. 7:15-3.4(a), the listing methodologyshould be developed by NJDEP as a policy or regulation, with ample publicparticipation, and clear requirements for the amount and quality of thedata needed to list.   Listing methodology should include requirementsthat: outline what data shall be considered or not considered (i.e., thedata EPA specifies as "existing and readily available); describe data qualityand age requirements; describe the number and degree of exceedances ofnumeric or narrative criteria required before a water body is deemed impaired;and describe the quality assurance/quality control factors the state willapply to the data being considered.

80. N.J.A.C. 7:15-3.4 (c): NJDEP must require clear regulationson what the data sufficiency Rules are along with the program for delisting,as they do for listing.  The barrier for delisting should be the sameas for listing.  Presumably, then, if rigorous data are needed todelist, then rigorous data are needed to list.  Likewise, a water,which is listed based on flimsy evidence, can then be delisted on equallyflimsy evidence.  The NJDEP must plainly articulate the "equal barrier"requirements in the rule.  The NJDEP must place no restrictions ondelisting at any point in time, including any time between list submittalspursuant to the listing cycle.

81. N.J.A.C. 7:15-3.5(a): NJBIA believes that this paragraph shouldbe qualified to require that any data submitted for use in the developmentof a WQLS List be limited to data collected in accordance with the minimumdata quality requirements proposed at N.J.A.C. 7:15-3.2(e).  Additionally,NJBIA believes that the NJDEP should clarify that the invitation for datasubmittal will also include data that could be used to delist a previouslylisted water body segment.

82. In Subchapter 3, Surface Water Quality Standards (SWQS) are discussedand waterbodies that do not meet the NJDEP's standards are identified. However, the Rules do not state if the SWQSs are focusing on point or non-pointpollution sources.  From an industrial standpoint, this is a veryimportant point to consider if the NJDEP expects process-related changesthat will improve water quality to occur.  It is also unclear howthe NJDEP plans to determine threshold levels.  If historical datais being employed, and if past performance is negative, a facility's currentperformance (if positive) should carry more importance in the equation.

83. As stated previously, the NJDEP should reconsider its plan to listthreatened waters [7:15-3.2(a)].  NJDEP intends to list "threatenedwaters" on the 303(d) list [pursuant to 40 CFR 130.7] although neitherthe statute nor EPA's new regulations require it.  While we agreethat threatened waters deserve protection, we think threatened waters shouldgo on a different list, in the continuous planning process (CPP) [CWA 303(e)]. If NJDEP lists a threatened water under 303(d), the agency must do a TMDLeven though that may not be the best choice to manage the water. Furthermore, TMDLs are very demanding of resources and a TMDL for a threatenedwater will divert limited resources and slow work on TMDLs for waters alreadyimpaired.

84. NJDEP should clarify listing methodology in detail as required bythe new federal regulations.  NJDEP intends to list waters for a myriadof reasons, including [see 7.15-3.2(d)(2)]:

· Comparison to applicable narrative criteria
· Fish consumption advisories
· Shellfish harvesting restrictions

86. The NJBIA recommends that before any waterbody is actually listed,the basis for listing should be validated.  Is the water actuallyimpaired?  Several questions should be raised and satisfactorily addressed: Is the use being impaired a valid use?  E.g., would a use attainabilityanalysis suggest that the use can never be attained due to natural backgroundor other non-anthropogenic factors?  Is the criterion assigned toprotect the use a valid criterion?  Is it current with respect toexisting 304(a) criteria and current science?  Does it measure theactual bioavailable species of a contaminant that cause an impact, or isit based on "total" species which may over predict the impact?  Woulda site specific criterion be more appropriate for the water segment ofconcern, and if so, would the water still be impaired?

SUBCHAPTER 4: WATERSHED MANAGEMENT AREA (WMA) PLANS

87. N.J.A.C. 7:15-4.1(b) - Directs the WMA planning process to maintainexisting water quality where it is better than the Surface or Ground WaterStandards and where it supports the desired use.  This direction goesbeyond the legislative intent as stated in the Water Pollution ControlAct and the Water Quality Planning Act both of which speak to the issueof meeting the water quality standards and protecting existing and designateduses.  This is a twofold exceedance.  First, is the disregardfor the water quality standards, which were derived to ensure protectionof water quality.  By establishing a new requirement which in effectchanges the water quality standard every time there is any improvementin water quality is far beyond the stated intent in the applicable statutes. If the Department feels the existing water quality standards are inadequateto protect the environment, these standards should be changed and the changessubject to proper public process in accordance with the AdministrativeProcedures Act.  Second the Rules allowance to establish a new, undefined,category called desired use further erodes any scientific connection tothe goal of water quality protection.
88. N.J.A.C. 7:15-4.1(b)1: NJBIA believes that this paragraph shouldbe revised by replacing "desired use" with "designated use" as follows:Maintenance of existing water quality . where existing water quality supportsthe designated desired use".  As stated in previous comments, theterm desired use is undefined and, in accordance with Federal regulationsand N.J.A.C. 7:9B, the water quality goal is to attain designated uses,not "desired" uses. 

89. N.J.A.C. 7:15-4.1(b)2: With regard to the restoration of water qualitywhere a Ground Water Quality Standard (GWQS) has been exceeded, the NJDEPshould limit the authority of a WMA agency (PAC, WMG) from dictating howa remediation should be conducted.  This should be left to the discretionof the Site Remediation Program.

90. N.J.A.C. 7:15-4.1(b) 3: NJBIA believes that this paragraph shouldbe revised by replacing "desired use" with "designated use" as follows:Enhancement of existing water quality in those areas where . designateddesired use(s) require improved water quality".  As stated in previouscomments, the term desired use is undefined and, in accordance with Federalregulations and N.J.A.C. 7:9B, the water quality goal is to attain designateduses, not "desired" uses. 

91. N.J.A.C. 7:15-4.1(c) 6: NJBIA supports the proposed WMA Plan objectiveof accommodating growth while protecting water resources.

92. N.J.A.C. 7:15-4.2(a): NJBIA believes that in addition to the tencomponents listed to be included in a WMA Plan, the plan should also includea cost and benefit analysis for each strategy to achieve a goal or objective,as well as for any project to improve water quality, water quantity and/orecosystem health.  Further, the cost and benefit analysis should bemade available for public comment before it is finalized in the WMA Plan.

93. N.J.A.C. 7:15-4.2(b) 3: NJBIA believes that "or desired" shouldbe deleted as follows: "That the potential adverse impacts of imperviouscover on designated or desired water uses are evaluated, avoided, minimizedand/or mitigated". As stated in previous comments, the term desired useis undefined and, in accordance with Federal regulations and N.J.A.C. 7:9B,the water quality goal is to attain designated uses, not "desired" uses.

94. N.J.A.C. 7:15-4.2(b) 6: NJBIA believes that the requirement to minimizethe need for and extent of physical flood control structures is an inappropriategoal and should be deleted or revised to be specifically limited to areasundergoing new development.  Physical flood control structures maybe completely appropriate to resolve flood control problems in existingdeveloped areas.

95. N.J.A.C. 7:15-4.2(c): NJBIA believes that may should be replacedwith shall as follows: "WMA plans shall may also include an analysis ofsocial and institutional issues associated with the development and implementationof strategies to achieve the goals of this chapter".  Additionally,as stated in a previous comment, the WMA plan should also be required toinclude a cost and benefit analysis for the development and implementationof each strategy to achieve a goal.  This information is vital toany decision making process and must be made available for public reviewand comment before a WMA Plan is adopted. 

96. N.J.A.C. 7:15-4.1 (f) - allows for activities to be conducted ona smaller scale than that of the WMA Plan provided the results are incorporatedas appropriate into the WMA Plan.  First no activity should be conductedwithout the approval of the Public Advisory Committee and the Department. Second, all such activities must be part of the WMA plan.  To allowfor activities or planning to be conducted on a smaller scale without theoversight of the designated planning agency is contrary to the watershedframework.  To suggest that there may be instances where such activitiesneed not be incorporated into the WMA Plan leaves the impression that therecould be countless smaller activities designed to "protect" water qualitythat will be developed and implemented without oversight or coordination. This is not acceptable. 

97. N.J.A.C. 7:15-4.1 (g) - allows for implementation of activitiesprior to adoption of the WMA Plan.  This suggests that there can beactions taken without public input.  The WMA plan is the mechanismfor getting the public input stressed as so important by the Departmentand this chapter.  To allow for implementation of any activity withoutthe adoption of the publicly reviewed and approved Plan is unacceptableand violates the Administrative Procedures Act.  This language mustbe deleted.

98. N.J.A.C. 7:15-4.2- This section lists the mandatory and optionalcomponents of a WMA Plan.  Certain components including riparian buffers,stream channel integrity, stream vegetation and flood controls are currentlyaddressed through existing state regulatory programs including the SoilErosion and Sediment Control Standards, Flood Hazard Control Rules andthe Residential Site Improvement Standards.  The WMA Plan requirementsgo well beyond the Rules and the governing statutes.  The WMA Plansshould address the statutory and regulatory requirements and ensure thatthey are being met.  To encourage alternative requirements will resultin regulatory chaos due to inconsistencies that will result in the inabilityto issue permits.  It is unacceptable to insert additional technicalrequirements without a public process to amend the appropriate statutesand rules.

99. N.J.A.C. 7:15-4.2 (a) 6 - states that the WMA Plan shall includea summary of approved wastewater, water supply and stormwater managementplanning activities within the WMA.  What approvals does this referto?  This supports our comment regarding 4.1 (f) above that thereshould be no activities ongoing that have not been approved.  While4.1 (f) seems to allow for unapproved activities this section prohibitstheir inclusion in the WMA Plan. 

100. N.J.A.C. 7:15-4.2 (c) - allows for inclusion of analyses of socialand institutional issues.  The rule provides no definition or descriptionof what social or institutional factors are or in what cases they wouldor should be included in the WMA Plan.  This information should beprovided. 

101. N.J.A.C. 7:15-4.2 (e) - states that WMA Plans shall be adoptedas substantive amendments to the WQMP and will therefore have the forceof regulation as all Department issued permits must show consistency withthese Plans.  How will the Department handle instances where the WMAPlan includes requirements that are inconsistent with existing statutesand regulations? 

102. N.J.A.C. 7:15-4.3 (a) - requires that WMAPlans be updated but provides no schedule for such updates.  Thiswill severely limit the ability to plan any activities in the watershed. Development projects take many years of planning and then many years toobtain government approval.  To allow for these plans to be updatedwhenever the PAC or Department decides it is necessary precludes relianceon any other approvals issued to a project from any level of state government.   Projects now must pass numerous planning and regulatory hurdles at themunicipal, county, regional and state level.  To now add this layerwhich can be changed at any time is unacceptable.  WMA Plan updatesshould be limited to a 5-year cycle to be consistent with Department rulemaking.

SUBCHAPTER 5: TOTAL MAXIMUM DAILY LOADS (TMDLs)

103. N.J.A.C. 7:15-5.1(a): While establishing the process for implementationof TMDL's. The NJDEP should ask the question "Is there another successfulstate model of TMDL implementation that New Jersey can benchmark against"?This might serve to prevent "rediscovering the wheel".

104. N.J.A.C. 7:15-5.1(d): NJBIA believes that the sentence statingthat "The Department may issue a draft NJPDES permit based on a proposedTMDL" should be deleted or clarified.  NJBIA requests the NJDEP toclarify that inclusion of a proposed TMDL in a draft permit will not resultin a permit limit based on the proposed TMDL when the draft NJPDES permitbecomes effective.  Further, if the proposed TMDL is adopted, NJBIAbelieves that a major permit modification subject to public comment mustbe proposed before a permit limit based on the TMDL can be finalized. This should only occur after WLAs based on the adopted TMDL are also finalized. Section 303(d)(3) of the Clean Water Act states that estimated TMDLs maybe developed "for the specific purpose of developing information" only. If a permit is finalized with a proposed TMDL, then that proposed TMDLis enforceable.  Until, the TMDL is fully adopted, it should not beused in NJPDES permits.

105. N.J.A.C. 7:15-5.1(e): Further clarification is needed on how theNJDEP proposes to regulate point sources and non-point sources that donot require a NJPDES permit.

106. N.J.A.C. 7:15-5.2: TMDL development should be limited to only parametersthat have a corresponding SWQS that have been adopted.  This willavoid the situation where the NJDEP proposes a TMDL for a pollutant thathas not been assigned a SWQS (i.e., MTBE).

107. N.J.A.C. 7:15-5.2(b): This is where the concept for the "protectiveTMDL" is in the regulatory language.  NJBIA believes that the developmentof this "Protective or Super" TMDL is based on speculation and assumptionthat future events will cause a POTENTIAL decrease in the water qualityof a receiving water body. With all the potentially conservative assumptions,Margin of Safety (MoS) and Reserve Capacity (RC) already being built intothe TMDL calculations, the resultant lower limits imposed upon dischargerswill be mind boggling for a potential environmental problem (orproblems) that may never exist. We can also make the following argumentsagainst "Protective TMDLs":

They are not necessary:  If the water segment is meetingWater Quality Standards, technology for existing sources is working. Any new sources, which could increase loads, can be dealt with under existingpermitting rules, assuming such new sources first meet any constraintsimposed by the State Plan.

They are not necessary:  303(d) lists are meant to be fluidand if a water body is not expected to meet Water Quality Standards bythe next listing cycle, it can be defined as, "impaired", therefore the"Protective TMDL" rule is unnecessary, unless the NJDEP is trying to imposeTMDLs for segments meeting Water Quality Standards but not expected todo so beyond two years.  In which case;

Any regulatory decision to implement a TMDL in such a situation wouldbe speculative and arbitrary.  It's hard enough (and resource intensive)to compute TMDLs for impaired segments.  Any TMDL for a segment alreadymeeting Water Quality Standards would have to be based on a fair degreeof modeling.  Using any model to project effects in dynamic riverand ecological systems beyond two years is per se speculative, and wouldresult in a regulatory decision without adequate justification.  Ourcourts have consistently spoken against such actions Specifically,

New Jersey courts have imposed a requirement that there be sufficientjustification for regulatory action.  In the case discussed below,the courts have spoken out against a prophylactic approach to regulatorydecisions without substantial evidence or justification.  The leadingNew Jersey Supreme Court case required the NJDEP to have a "substantialevidential basis" or show good cause to force a landowner to install andsample monitoring wells where discharges were suspected.  See Vi-ConcreteCo. v. State, Dept. of Environmental Protection, 115 N.J.1, (1989) (DEP may issue permit to owner of closed landfill requiring theinstallation and maintenance of monitoring wells only if NJDEP has substantialevidential basis for believing that the landfill is actually dischargingpollutants).  Similarly, State, Dept. of Env. Prot. V. Lewis,215 N.J.Supr. 564,577, a corporation could be required to fund andperform groundwater studies only upon showing that corporation caused contamination,which required further study.

108. Let us first work on known impaired waters and as these areimproved we can shift emphasis to those that might become impaired. The Watershed approach is complex enough without trying to solve speculativefuture problems at the same time. This approach will severely stretch boththe NJDEP's and the regulated communities already limited resources ofpersonnel and money in trying to deal with both the known and speculativefuture impaired waters within the constraints of the time frames imposed. 

109. N.J.A.C. 7:15-5.2 (General TMDL Requirements): Specifically 7:15-5.2(a):The NJDEP states "A TMDL shall be established for each pollutantcausing impairment in a WQLS identified pursuant to N.J.A.C. 7:15-3" andagain in N.J.A.C. 7:15-5.3(b), Technical Requirements for TMDL Development:"A TMDL shall be based on an analysis that adequately relates pollutantinput to water quality". The Rules should reflect the recent final EPArule preamble approach that for waters impaired for chronic or sedimenttoxicity, there should NOT be an overall WET TMDL established.  Instead,the State should develop a TMDL for the specific, identified, underlyingconstituent (pollutant) that is causing the problem.

Similarly, if a 316(a) variance has been approved for a thermal loading,then the variance should become applicable to these sections for establishmentof a TMDL for a thermal loading. This should also apply in N.J.A.C.7:15-3.2(b),

110. N.J.A.C. 7:15-5.2(b)1: NJBIA believes that this paragraph shouldbe deleted because it exceeds Federal requirements without proper justificationand is without legislative basis.  This paragraph would allow a TMDLto be established for a water body that is not a WQLS simply to maintainor enhance the existing water quality.  However, TMDLs are to be adoptedfor impaired water bodies. Section 303(d)(3) of the Clean Water Act allowsestimated TMDLs to be developed but only "for the specific purpose of developinginformation".  If this paragraph is proposing to develop estimatedTMDLs, then it should be clarified that the TMDL will not be used to establishpoint source limits more stringent than are needed to maintain water qualityin accordance with N.J.A.C. 7:9B.

111. N.J.A.C. 7:15-5.2 (b) - allows for development of a TMDL for waterbodies not identified as water quality limited segments.  This exceedsthe federal requirements at 40CFR130.   TMDLs for non-water qualitylimited segments should not be allowed until such time as all water qualitylimited segments in the state have been addressed.  The Departmentmust first address all water quality limited segments. At that time considerationof other water bodies can be undertaken.  To allocate the states'limited financial and technical resources to address water bodies thatare in fact meeting the water quality standards before the impaired watersmust not be allowed.

112. N.J.A.C. 7:15-5.2 (b) 2 - allows for TMDLs to be done for waterbodies not identified as limited, to plan for future allocation of assimilativecapacity.  These water bodies are meeting or exceeding the water qualitystandards and the TMDL is being done to assure that this condition is maintained. Thus, there is no additional assimilative capacity in the stream. The situation addressed by this language can not exist and therefore thelanguage should be deleted. 

113. N.J.A.C. 7:15-5.2 (l) notes that TMDLs done for a water body whichis not a WQLS may be submitted to EPA for review.  What criteria willbe used to make the determination on submittal to EPA?

114. N.J.A.C. 7:15-5.3 (f) 2 - indicates that TMDLs may be calculatedfor the SWQS or a water quality goal.  As noted previously, TMDLsshould be restricted to situations where the water body does not meet theSWQS.

115. N.J.A.C. 7:15-5.3 (f) 6 - indicates that the TMDL implementationplans shall address meeting water quality goals.  Again, TMDLs shouldbe applied to only those situations where the water quality standards havenot been met.

116. N.J.A.C. 7:15-5.4 (a) - TMDL allocations should be done based onSurface Water Quality Standards only, not on non-regulatory water qualitygoals.

117. N.J.A.C. 7:15-5.4 (b) - allows for use of data in from administrativelycomplete proposed modifications to WMA and WMP plans.  This is inconsistentwith other sections of this rule, which acknowledge only those proposalswhich have gone to public hearing.   That section must be changedto be consistent with this language. If it is not, this language must bechanged to state that data may only be used if the proposal for modificationhas gone to public hearing.  The two sections must be consistent.

118. N.J.A.C. 7:15-5.4 (c) - This section deals with trading. The Rules provide no details on how such trades are to be arranged, documented,implemented, measured or approved.  Without guidance on this new processit is likely that trading will never be allowed.   The requirementthat new development that requires substantive modifications and must resultin no net increase in nonpoint loads itself will require trading. Thus, the trading provisions must be workable or this provision alone willprohibit new developments.

119. The point source pollutants associated with the Waste Load Allocationsare based on low flow conditions, while the non-source pollutants associatedwith Load Allocations are based on high flow conditions.  How canthese two are related for trading purposes? 

120. N.J.A.C. 7:15-5.4 (c) 2. - Specifies that trading is to considerthe timing and certainty of a WLA and LA change anticipated by the trading. Load Allocations consist of nonpoint sources of pollution.  Thereis no certainty in the prediction of such pollutant loads.  They arenot easily identified or measured.  The rule must include specificsas to how such pollutant loads are to be quantified and accounted for. 

121. N.J.A.C. 7:15-5.5 (b) - requires that Reserve capacity be includein the TMDL, where appropriate to address future loads.  These Rulesrequire that water quality be maintained where it is better than standards.Thus precluding the addition of any new loads, and therefore the need fora reserve capacity.  Is this what is meant to be accommodated by the"where appropriate" language?  If not, in what instances would thereserve capacity not be appropriate?

122. NJDEP states "Although not required under section 303(d) of theClean Water Act, the Department is also proposing to use "Protective TMDLs". NJDEP goes on to say "This requirement is considered more stringent thanthe existing federal requirements requiring TMDL development for WaterQuality Limited Segments ONLY, although it is "allowable" under existingfederal regulation". NJBIA objects to NJDEP's use of Protective TMDLs.

123. N.J.A.C. 7:15-5.2(b) 4(e): The NJBIA agrees with the concept ofseason-specific Waste Load and Load Allocations allowable under N.J.A.C.7:14A-13.9 and N.J.A.C. 7:15-5.4(d).

124. N.J.A.C. 7:15-5.2(d): NJBIA believes that the phrase "or to achievewater quality goals established in the adopted areawide WQM plan" shouldbe deleted so that the paragraph reads: "TMDLs and associated WLAs, LAs,MoS and RC shall be established to attain and maintain applicable SWQSor to achieve water quality goals established in the adopted areawide WQMplan".  Federal requirements limit the establishment of TMDLs to impairedwater bodies and define the water quality goals as the surface water qualitystandards.  As such, the phrase "to achieve water quality goals" isredundant with achievement of the standards unless goals more stringentthan the standards are proposed.  Goals more stringent than the standardsexceed Federal requirements and should be proposed through rulemaking withproper justification. 

125. N.J.A.C. 7:15- 5.2(d): The NJBIA supports the NJDEP's decisionto not follow any particular methods in developing the most appropriateallocation methods for specific TMDLs.  The method that is appropriatewill vary depending on the specific waters at issue and other site-specificcircumstances.  Therefore, there is no one approach that will be rightin all or even most situations. 

126.  N.J.A.C. 7:15-5.2 (h): The NJDEP should allow for a reviewand comment of an adopted DRBC TMDL  (or other quasi-government agency)and should not automatically make any TMDLs developed by them an adoptedamendment to a WQMP.

127. N.J.A.C. 7:15-5.2(l): NJBIA believes that the following sentencesshould be deleted from this paragraph: "A TMDL for a water body that isnot a WQLS may be submitted to the USEPA for either comment or approval. If the NJDEP submits a TMDL to the USEPA for comment only, the NJDEP mayadopt the TMDL without USEPA approval."  Section 303(d)(3) of theClean Water Act allows estimated TMDLs to be developed but only "for thespecific purpose of developing information".  A TMDL for a water bodythat is not a WQLS is an estimated TMDL, and can not be used to developwater quality based effluent limits.  Further, NJBIA is unaware ofany legislative or regulatory basis that allows the NJDEP to adopt TMDLswithout USEPA approval, whether or not the water body is a WQLS. The imposition of more stringent limits than those needed to attain theSWQS is without basis.

128. N.J.A.C. 7:15-5.2(m): This section should be expanded to includenon-point sources (where possible) to undertake site-specific water qualitystudies and not only limit them to point sources.

129. N.J.A.C. 7:15-5.3(b): All TMDL analysis calculations should bescientifically valid, based on good standards and QA/QC, not just becauseit seems like a good "idea" based on limited data or a single laboratoryexperiment. This point is made in the recent final EPA TMDL rule. The preamble of the rule emphasizes the role of high quality data withsound QA/QC in TMDL decision making. This approach of using "good quality"data should be at least as stringent as that used for identifying and listingimpaired waters in Subchapter 3.

130. N.J.A.C. 7:15-5.3(f): NJBIA believes that in addition to the listedinformation, a TMDL report should also present any assumptions used todevelop the TMDL, including all modeling assumptions and selected calculationmethods, with a discussion of the validity and inherent safety factorsassociated with the assumptions.

131. N.J.A.C. 7:15-5.3(f): The NJDEP should require, no matter whatallocation method they choose for a given TMDL, to conduct an analysisof the costs and benefits of the control actions that will be requiredof the regulated parties under the TMDL.  Even if the TMDL uses abasis for allocation other than a cost-benefit analysis, the costs andbenefits information will help the NJDEP and other involved parties tofully understand the impacts of the TMDL, and to evaluate the fairnessand reasonableness of those impacts.
132. N.J.A.C. 7:15-5.3(f) 2: NJBIA believes that the phrase "or waterquality goal" should be deleted as follows: "Any SWQS or water qualitygoal used to calculate the TMDL".  As stated in previous comments,a TMDL should only be established when required to meet the SWQS, and Federalregulations define surface water quality standards as the water qualitygoal.

133. N.J.A.C. 7:15-5.3(f)6: NJBIA believes that the phrase "and waterquality goals adopted as part of the areawide WQM plan" should be deletedas follows:  "An implementation plan . that will ensure that the applicableSWQS and water quality goals adopted as part of the areawide WQM plan willbe attained." As stated in previous comments, a TMDL should only be establishedwhen required to meet the SWQS, and Federal regulations define surfacewater quality standards as the water quality goal.

134. N.J.A.C. 7:15-5.3(g): NJBIA believes that "shall" should be replacedwith "may" as follows: "A TMDL and associated pollutant allocations mayshall be superseded by a subsequently adopted TMDL for the same pollutantin the same water body."  It will not be an absolute requirement toalways to supersede an adopted TMDL.  Further, the NJDEP should alsonot immediately require a new TMDL because conditions changed or new analyticalmethods are available.  Also, in all cases, the most current waterquality data should also be considered before deciding that a new TMDLmay be needed.

135. N.J.A.C. 7:15-5.4: In developing Waste Load Allocations (WLAs)and Load Allocations (LAs), there are several questions that must be answered. Will Point Sources (Industry and/or POTW's) be forced to bear more of theburden of meeting Water Quality Standards than Non-point Sources? How will contributions of Non-point Sources be quantified?  What willthe NJDEP do when the limitations allocated to Point Sources cannot bemet with current technologies?

136. N.J.A.C. 7:15-5.4(c): The NJBIA agrees that the concept of "trading"is a good idea but for this concept to be both effective and workable willdepend on the details and its implementation.  Clear legal authority,environmental drivers and well-designed programs are necessary for tradingto occur. The NJDEP should find out what other states are conducting studiesand implementation projects to determine how trading can be done to achievereductions required under a total maximum daily load.  Point and Non-pointsource trading raises a number of policy questions.  For example,how can equity be established between sources?  Should Non-point sourcesbe required to share the burden of reducing pollutant levels?  Whowill participate in trading if Point Sources are required to assume responsibilityfor Non-point sources?  Will NJDEP allow "pollutant trading" where,for instance, a Point Source is allowed higher discharge limitations inexchange for reducing pollution from a Non-point source?

137. N.J.A.C. 7:15-5.4(c): NJBIA believes that the phrase "and the achievementof a water quality goal adopted in the areawide WQM plan" should be deletedas follows: "WLAs and LAs may be traded within the TMDL project area providedthe resulting WLAs and LAs demonstrate compliance with the applicable SWQSand the achievement of a water quality goal adopted in the areawide WQMplan." As stated in previous comments, a TMDL should only be establishedwhen required to meet the SWQS, and Federal regulations define surfacewater quality standards as the water quality goal.

138. N.J.A.C. 7:15-5.4(c): NJBIA believes that the sentence "The tradingprocess shall occur during TMDL development and shall be reflected in theproposed WLAs and LAs" should be deleted.  Although this may be preferable,it may not always be possible or practical, and thus the use of tradingto achieve SWQS should not be limited to the initial TMDL development period. Circumstances may occur where the need for trading is not known until afterTMDL, WLA and LA development.  For example, a point source may determinethat trading is still needed if a permit limit based on a WLA can not beachieved even after installing new treatment facilities.

139. N.J.A.C. 7:15-5.4(c): The NJDEP has stated that it is trying toencourage the use of effluent trading associated with achieving offsetsfor new or significant increases from existing sources. A major concernwith effluent trading is the liability of point sources for non-point reductions. The NJDEP must state that the point source would be held liable for civiland criminal enforcement in the event that the 'offsetter' fails to upholdtheir obligation under the contract.  If so, this type of offsettingwill be an attractive alternative to the discharger.  Verifying offsetswill be difficult to establish initially.

140. N.J.A.C. 7:15-5.5: The regulated community needs to know what isthe order of magnitude for both "Margin of Safety" (MoS) and  "ReserveCapacity" (RC) in TMDL calculations?

141. There is no mention concerning how much time a facility would haveto make process modifications before new TMDLs become enforceable. Timetables for improvements (compliance schedules) need to be insertedinto the language.

142. N.J.A.C. 7:15-5.5: The proposed margin of safety (MoS) provisionsshould be clarified to ensure that the MoS concept is applied in a technicallysound manner, with appropriate flexibility based on available data andsite-specific conditions.  A MoS should not be used to substitutefor needed data or as a reason not to apply basic scientific rigor in developinga TMDL. We support reasonable statutorily prescribed MoS to address uncertaintiesassociated with relating loads to water quality conditions.  However,certain clarifications are needed and should be specified as follows: 

· The purpose of the MoS should be clearly stated. The MoS is intended to serve one purpose: to "take into account any lackof knowledge concerning the relationship between effluent limitations andwater quality."  The MoS should not account for "technical uncertainties",such as the uncertainty created by the lack of sufficient water qualitydata to develop a defensible TMDL.  That type of uncertainty shouldnot be used to justify a larger MoS.  The MoS is intended to addressonly the uncertainty caused by a lack of information "concerning the relationshipbetween effluent limitations and water quality."  That is the uncertaintythat Congress felt needed particular attention. NJDEP should make thatclear in the Rules, so there is no confusion.

· The NJDEP should not use the MoS (i.e., reduced WLA) as a substitutefor needed data or as a reason not to apply basic scientific rigor in developinga TMDL.  In other words, regulated parties should not be forced tobear the burden of reduced effluent limits because the NJDEP did not dotheir "homework".  Here, the NJDEP must make the necessary investmentsfor any additional monitoring that may be necessary to identify sourcesof impairment (including natural background), meet model input requirements,and evaluate control actions called for by a TMDL.

· The rule should clearly state that the NJDEP has the flexibilityof reducing the MoS or eliminating it altogether as more is known aboutthe watershed and more sources become controlled. We think that this practiceis important enough to be specifically mentioned, so that NJDEP knows thatthis is permissible.  In general, the magnitude of a MoS should reflectthe extent of the uncertainty in the calculations used to develop thatparticular TMDL. 

144. In an August 16, 1999 press release, President Clinton announcedthe TMDL proposal, and that it would require ".. comprehensive cleanupplans that will share pollution reduction responsibilities among all sourcesto the nation's waterways.".  The press release further stated that"Pollution reductions will be shared among point and non-point sourcesof pollution..". Any limit on growth of non-point sources could only beaddressed via an overall growth allowance in the TMDL load allocation. Therefore, by imposing growth restrictions in the TMDL along with NPDESpermitting offsets, EPA is placing a disproportionate burden on point sourcesversus non-sources points in addressing growth.  API believes thisis inappropriate and inconsistent with the above stated policy and intentof this rule making.

145. The NJDEP should clearly provide in the Rules that a phased TMDLmay be used as an approach to address legacy and other difficult-to-solveproblems.  Specific recommendations on use of this approach shouldbe included in guidance.  In the proposed Rules, the NJDEP does notdiscuss "phased TMDLs." A phased TMDL is an approach for developing a TMDLin which the NJDEP includes expected long-term loading reductions, suchas from a legacy source (e.g., contaminated sediments) when developingnear-term allocations for ongoing sources.  Phased TMDLs are an importantoption, particularly for complex situations involving legacy sources, suchas contaminated sediments, and other difficult water quality issues, suchas combined sewer overflows, that may take an extended time to address. Therefore, the NJDEP should add specific language to the Rules that clearlyauthorizes this approach, and additional details on how to develop phasedTMDLs should be provided in guidance.

146. EPA has already recognized the utility and appropriatenessof the phased TMDL approach.  In the Final Water Quality Guidancefor the Great Lakes System (also known as the Great Lakes Initiative (GLI)rule), EPA provided the following language, to specifically authorize Statesto use phased TMDLs: "Where water quality standards cannot be attainedimmediately, TMDLs must reflect reasonable assurances that water qualitystandards will be attained in a reasonable period of time.  Some TMDLsmay be based on attaining water quality standards over a period of time,with specific controls on individual sources being implemented in stages." 40 CFR 132, Appendix F, Procedure 3, Section 3.B.1. The Supplemental InformationDocument (SID) for the GLI Rules provides more specific information onpages 247-248 regarding how the phased approach should be applied.

147. A "Trading" policy should be developed in detail through a publicparticipation.  The NJDEP should develop a detailed policy, with publicparticipation, which outlines in detail how trading would actually work.

148. N.J.A.C. 7:15-5.5(b): NJDEP should explicitly recognize that thereserve capacity (allowance for growth) can be as low as zero.

149. N.J.A.C. 7:15-5.5(b) is far too broad in allowing a reserve capacityto be assigned. Can the NJDEP use the argument that a Warren County watershedshould be evaluated based on typical city nonpoint contributions, becausethey "reasonably anticipate" that farmland in this area will be as developedas Newark at some time in the future?

SUBCHAPTER 6: DISCHARGES TO GROUND WATER OF LESS THAN 20K GPDAND LESS THAN 2K GPD

150. N.J.A.C. 7:15-6 deals with discharges to groundwater.  Ifa current POTW permit incorporates a groundwater management plan; again,it is unclear whether a new plan with new guidance will be needed. An existing groundwater management plan, if deemed sufficient by the NJDEP,should be able to be grandfathered and applied to the proposed plan.
 

151. N.J.A.C. 7:15-6.1 - The Rules withdraw the wastewater designationsfor discharges of less than 2,000 gallons which for residential developmentequates to 6 units.  The rational as stated in the rule summary isprotection of ground water.  However the required WQMP amendment processfor such projects is not restricted to ground water issues.  In factthese projects will be subject to the same degree of assessment as allother projects, regardless of size.  How then does the Departmentjustify the 6 residential unit cutoff from an environmental perspective?  How does the Department justify such regulation from a legal perspective? 

152. The summary of the rule (page 2307) states that the most frequentpollutants exceeding SWQS are fecal coliform and phosphorus and that thesepollutants are associated with development which relies on septics. The Department has made it clear that such data related to septic systemsin New Jersey does not exist.  The assumption that these sources ofpollution are directly related to septic system is based on nothing morethan a guess and should not be included in the rule.  There is noevidence that septic systems are the source of these pollutants. The summary section notes that the effluent from a septic tank containsapproximately 40 mg l of nitrate.  However, this does not in anywayrelate to the pollutants that reach the water.  Once released fromthe tank the discharge is treated in the disposal field and in fact thepollutant levels found in the water are 1 - 3 mg/l which meets currentwater quality standards.  The Whippany Watershed study, which foundthese pollutants, attributed them to wildlife and pet waste.  TheWhippany study was to serve as the pilot for the state. The Whippany TMDLdoes not address septics.  The Department's statements, which suggestthat septics are the source of pollutants, are inaccurate and can not serveas any justification for the limitation placed on septic reliant development. For water resource protection the inclusion of septic systems dischargingmore than 2,000 gallons per day is indefensible. 

153. For such a significant change in the review of development thatrelies on septic systems the Department is obligated to provide a soundbasis.  The existing statute which addresses septic systems only wherethere are more than 49 residential units (N.J.S.A. 58:11 - 23).  Therehas been no change to this statute proposed by anyone including the Department. Clearly there must be compelling need to reduce the threshold by such alarge amount.  The Department must provide detailed data on the number,location, age, and discharge data for existing septic systems in New Jerseyto justify such a regulatory change.  Without such justification,and the necessary legislative direction this provision can not be included.

154. N.J.A.C. 7:15-6.2 (b) i - This provision expands the universe ofimpacted projects to include those as small as one dwelling unit if thereare five homes built on contiguous parcels if there is a shared road orother infrastructure.  There is no language limiting the size of theparcels.  Thus if there are 5 houses built on 5 acres and the adjoiningparcel is 250 acres, only one house could be built without a substantiveamendment to the WQMP.  There must be an acreage limit included inthis provision to address such situations.

155. What is the rationale for subjecting one single family home tothe extensive requirements associated with a substantive modification toa WQMP?  The analyses required in Subchapter 9 and the process requirementsin Subchapter 9 will increase the cost of this one home to such an extentthat it will not be feasible.  There must be an analysis and detailingof this cost and a justification based on the environmental benefit tobe gained by such scrutiny of one home.
 

156. N.J.A.C. 7:15-6.2 (b) i (1) - includes projects which share infrastructureincluding road, utility lines and drainage systems.  This provisionserves to punish those municipalities that incorporate planning by puttingin the infrastructure to serve multiple projects prior to constructionof all of the projects. 

157. N.J.A.C. 7:15-6.2 (b) i (4) - requires that existing developmentbe taken into account when determining if the development qualifies. Does this mean that development built before the effective date of theRules will be included in the consideration of previous development? What is intended by the term existing development? 

158. N.J.A.C. 7:15-6.2 (c) 1 and 2 - exempts facilities for which theDepartment has received a complete application.  This should be clarifiedto read an administratively complete application.  This will thanbe consistent with other Department regulations and policies.  Itwill also provide the needed clarity, as there is no definition of a completeapplication.

159. N.J.A.C. 7:15-6.2 (c) 3 - establishes a retroactive effective dateof July 3, 2000, for the exemption provided for five or fewer homes builton septics.   This effectively prohibits any ability to makeprudent decision-making during the time period from July 3 to the dateof rule adoption.  The majority of individuals impacted by this ruleprovision are landowners, farmers and small developers who build less than20 homes per year.  Typically the interested parties are not awareof upcoming rule makings by the Department and therefore these partiesare unaware of the July 3rd date.  Hence they are currently workingtoward obtain local approvals or making investments on land which theybelieve based on existing regulation will be developable to a certain degree. The Department has acknowledged there will be an impact noting in the EconomicImpact section that there will be fewer development approvals issued. Thus there must be an equal acknowledgment of the potentially devastatingimpact on those who are currently moving ahead and making financial investments. This provision must be changed to an effective date consistent with thedate of rule adoption.  Anything approves at the local level priorto the rule's adoption would be exempted. 

160. 6.2 (c) 4. - Exempts existing wastewater facility for which a permitwas not required such as cesspools or septics installed prior to the adoptionof any technical standards.  The expressed rationale for including5 or more houses on septic built to meet current standards is groundwaterprotection.  To exempt cesspools and obsolete septic systems is indefensible. These systems are the ones that would be reasonably expected to be sourcesof pollution.  The first order of business should be to require thatthey are immediately inventoried, assessed and where necessary repairedor replaced.  The rule should require that WMPs include such an inventoryand a schedule for the assessments and repair or replacement.

SUBCHAPTER 7: WASTEWATER MANAGEMENT PLANNING

161. How will the NJDEP protect against a delegated agency (POTW ormunicipality) from unilaterally dictating that all wastewater flow be sentto the POTW and not directly to surface water?  The NJDEP has to considerthat a conflict of interest may exist and the Rules need to specify whatthe limits are for a WMP agency regarding these decisions.  The Rulesshould also be expanded to identify what entities qualify as a WMP.

162. Would an exceedance of a wastewater flow identified in a WMP beconsidered a violation?  The NJDEP needs to expand upon the enforcementaspects of these plans as they relate to permits.

163. N.J.A.C. 7:15-7.1 (b) - references substantive amendments doneat less than a WMP scale.  WMP scale is undefined.  What is intendedby this term?  Further this provision states that for these amendmentthe Department shall identify the information requirements and the areato be covered.  Such specifics should be included in the rule languageand not left open ended. 

164. N.J.A.C. 7:15-7.1 (c) and (g) - specifies what a WMP is and includessocial and institutional issues related to wastewater management. What would such social and institutional issues be?  WMPs addresswastewater management needs.  To require that such assessments includesocial and institutional issues implies that these plans can and will beused to exclude certain types of projects or specific projects.  Thisdiscretion and potential for discrimination have no place in a wastewatermanagement-planning document.  Reference to institutional and socialissues must be deleted.

165. N.J.A.C. 7:15-7.1 (h) - states that WMPs are to address a 20-yearplanning period.  This provision goes on to state that the Departmentmay also require that an environmental build-out scenario be included. The buildout has not relationship to the 20-year planning horizon. There is no place here for a build out scenario.  The WMPs are tobe planning documents dealing with wastewater treatment which are updatedon a regular basis pursuant to the Water Quality Planning Act (58:11A-5). The regular updates continuously move the 20-year planning horizon intothe future.  The build out has no relationship to the 20-year planningperiod which is to be addressed in the WMPs.  Thus to do the buildout in addition to the 20-year planning horizon serves no purpose. WMP agencies are to plan on a 20-year planning period basis.  Theyare not to plan based on the ultimate build out which would result in poorplanning and would be inconsistent with the legislative intent.

166. N.J.A.C. 7:15-7.2 (b) - states that the pre planning conferenceshould be held prior to any detailed investigative or design work to avoidexpense.  This statement contradicts the Rules regarding the preplanningconference and reflects complete ignorance of the planning and developmentprocess.  The pre planning conference requires the submittal of detailedinformation that in it will require planning and design work.  Thereis no way to meet the preplanning requirements of Subchapter 9 withoutgreat expense.  As one example there is a requirement for a publicmeeting prior to the preplanning conference.  How could you have sucha meeting and not have the details of the design of the project includingat a minimum roads, drainage and site layout.  As the rule requirementspreclude the possibility of a preplanning conference without great expensethis statement should be deleted. 

167. N.J.A.C. 7:15-7.3 (a) 4. Ii - requires that the WMP include a descriptionof wastewater infrastructure including but not limited to existing andapproved plants.  What else might the Department require to be includedin this description?  This description should be limited to that whichis approved or existing.  If there are other categories the Departmentcan think of they should be listed in the Rules.  Open-ended clausesserve no purpose other than to poorly define the submittal requirements,give the Department unbounded discretion on what can be required and delaythe processing of plans and amendments. The words "but not necessarilylimited to" should be deleted.

168. N.J.A.C. 7:15-7.3 (a) 4. iii - requires the WMP to include a descriptionof water supply and stormwater infrastructure in addition to that requiredfor wastewater.  Water supply and stormwater issues have no placein a wastewater-planning document.  These issues should be addressedon the watershed scale in the watershed planning process. 

169. N.J.A.C. 7:15-7.3 (a) 4. iii. (1) - requires is duplicative ofat 7.3 (a) 4. ii.

170. N.J.A.C. 7:15-7.5 (a) 1. . Requires mapping of proposed centers. This term is undefined in the State Planning Commission Rules.  Thisterm must be defined for clarity.

SUBCHAPTER 8: ENVIRONMENTAL PLANNING ANALYSES AND ASSESSMENTS

171. The environmental planning analysis and assessments envisionedin Subchapter 8 require broad legislative support because they go wellbeyond the limits of the current law. A few examples include:

· Where is the regulation of a 75-foot riparian corridorauthorized in current law?
· Where is a zero consumptive/zero depletive use standard providedin existing allocational law?
· Where is regulation of septic management areas for as fewas six units authorized in law?
· Where is the linkage in law between water quality planningin the State Development and Redevelopment plan?
· Where are the standards for storm water runoff specified inthe water supply/ water quality planning laws?

173. N.J.A.C. 7:15-8.1 - This subsections lacks any threshold or criteriafor the numerous analyses and assessments required.  There is no distinctionmade regarding these analyses which apply to all projects including 1,000unit subdivisions, large scale retail projects, industrial facilities orin certain situations one home built on septics.  8.1 (b) states thatthe presumption is that all analyses are required for all projects regardlessof size or potential impact.  Thus it is the Department's stated intentto subject one home to the same intense scrutiny as a project which includes100's of homes and commercial establishments.  There is no technicalor environmental protection rationale for such a broadband approach. There is a need to provide a rationale of the cost effectiveness of conductingsuch detailed and costly assessments to one or even 6 homes.  Withouta compelling justification for applying the entire range of analyses tosuch small projects, a hierarchy of assessments must be established toaddress the large range and scope of projects covered by these Rules. 

174. N.J.A.C. 7:15- 8.1 (a) states that this subchapter defines methodsfor determining certain of the items detailed later in the subchapter. This is a misstatement and should be deleted.  This subchapter doesnot provide methods.  In certain cases the subchapter lists some ofthe information that may be used in performing the required assessments,but in no case are specified methods provided.  This reference tomethods must be deleted.

175. N.J.A.C. 7:15-8.1 (a) 3. - States that methods are provided fordetermining alternatives to be considered in an iterative fashion. Again, there is no method provided for making such a determination. The term iterative needs to be clarified as to the intent.  As writtenthe intent is clear; applicants must make repeated submissions to the Department. This establishes the potential for an unending process of submission. The process must be clear enough for an applicant to have some abilityto determine an end point.  An iterative process implies this willnot be feasible.

176. N.J.A.C. 7:15-8.1 (a) 4 - requires determination of environmental,social and institutional objective and performance standards.  Again,there is no definition of methods to make these determinations.  Theterms social and institutional need to be defined to clarify the Department'sintent.

177. N.J.A.C. 7:15-8.1 (b) - as noted above the presumption that allanalyses and assessments are required should be modified to provide a hierarchythat is based on potential impact and cost effectiveness. 

178. N.J.A.C. 7:15-8.1 (b) - states that the presumption that all analysesand assessment are required does not apply to stormwater management plans,TMDLs and WMA plans.  Why are these analyses not required for theseplanning processes? 

179. N.J.A.C. 7:15-8.1 (c) - requires a Department determination ifthe requirements of the subchapter have been addressed as part of an endorsedplan or designated center process by the State Planning Commission. This Department re-review of SPC decisions is inconsistent with the statedgoal of coordinating and integrating with the State Plan.  The Departmentis a voting member of the State Planning Commission and has input intoall SPC decisions.  All issues should be resolved through the SPCprocesses.  It is unacceptable to subject a project that is consistentwith an endorsed plan or located in a designated center to any furtherreviews.  To do so will only serve to discourage municipalities andothers from going to the SPC for endorsements or center designations. This provision should be modified to state that any project that is consistentwith an endorsed plan or is located in a designate center would be exemptfrom any of the analyses in this subsection. 

180. N.J.A.C. 7:15-8.1 (d) - allows for reliance on Department GIS dataas the results for the analyses and assessments in the Subchapter. GIS is data only and could not be substituted for an assessment. This provision needs to be clarified.

181. N.J.A.C. 7:15-8.2 - lists factors to be considered by the Departmentin determining the spatial boundaries for the required assessments andanalyses.  There is no provision to consider project size particularlythose instances where the project size is minimal such as for those projectsincluded pursuant to subchapter 6.  The spatial boundaries for thesesmall projects must take into account not only the limited impact of theproject but also the cost effectiveness and impact for requiring such smallprojects to assess areas beyond the boundaries of the project.

182. The term spatial boundary should be defined. 

183. N.J.A.C. 7:15-8.3 (a) - requires use of information that is readilyavailable.  To allow for applicant to meet this criterion the Departmentmust improve its own ability to make data available.  List of documentsconsidered readily available should be maintained to allow applicants tohave a source to rely on.  The term is undefined and many documenttypes could be subject to debate as to whether they are in fact readilyavailable.  Readily available information may not be accurate andin many cases may not be peer reviewed.  These issues must be addressedin the definition or readily available.  Experience has proven thatthe comprehensiveness of documents provided varies based on who makes therequest and to whom the request is made.  By providing a list of documentsor even a list of categories of documents will provide clarity.  Thissection should be modified to address the situation where new findingsare made available after the plan or amendment is already in the reviewprocess.  How will these situations be handled?

184. N.J.A.C. 7:15-8.3 (a) 2 - requires addressing known contaminationof surface or groundwater resources.  What does this mean?  Knownby whom?  Where would such information be found?  What regulatoryprogram addresses this?  Clarifying language should be added. 

185. N.J.A.C. 7:15-8.3 (a) 3 - lists the New Jersey Statewide WaterSupply Master Plan as a source of information on current or projected watersupply deficits. This plan is too regional in scope to rely on for site-specificdeterminations without gross error.  Site-specific assessments mustbe used and the Department must provide all applicable studies.  Currentlythere are many unpublished studies which applicants can not assess. If these documents will impact the decision making process, they must bemade available. 

186. N.J.A.C. 7:15-8.3 (a) 6. - Requires addressing removal of groundor surface water including that related to agricultural or horticulturalwithdrawals.  How will this data be readily available as it is notincluded in any Department issued permits and is not provided in the StateWater Supply Master Plan?

187. N.J.A.C. 7:15-8.3 (a) 9 - refers to regional stormwater managementplans adopted in accordance with N.J.A.C. 7:8.  These Rules do notdeal with regional stormwater management plans.

188. N.J.A.C. 7:15-8.3 (b) - see comments on 8.3 (a) regarding "readilyavailable".

189. N.J.A.C. 7:15-8.3 (b) 2 - requires assessment of public water supplycontamination, regardless of whether the supply is treated to address thecontamination.  All public water supplies are treated (chlorination)to deal with contamination.  Thus, as written, this provision appliesto all public water supplies.  The language should be clarified toaddress specific contamination issues of concern to the Department.

190. N.J.A.C. 7:15-8.4 - deals with population, household and employmentprojections.  How do such assessments apply to project specific amendments? Will each such amendment even for projects as small as 1 - 6 homes on septicsbe required to do these assessments?  Such assessments should be limitedto the WMP level only.

191. N.J.A.C. 7:15-8.5 (b) 1 - allows for reliance on metered data forwastewater flows for the most recent 12-month period unless the Departmentrequires an alternative time period.  In what instances would an alternativetime period be required?  Criteria for when an alternate time periodwould be required should be added to provide certainty. 

192. N.J.A.C. 7:15-8.5 (b) 2 - allows for reliance on N.J.A.C. 7:14A-23.3for determining average flow, unless an alternative is approved or requiredby the Department.  In what instances would an alternative flow berequired?  Criteria for when an alternate flow would be required shouldbe added to provide certainty 

193. N.J.A.C. 7:15-8.5 (b) 3. - Allows for reliance on N.J.A.C. 7:9A-7.4 for determining septic flows unless an alternative is approved orrequired by the Department.  In what instances would an alternativeflow be required?  Criteria for when an alternate flow would be requiredshould be added to provide certainty 

194. N.J.A.C. 7:15-8.5 (b) 4 - what is the intent of providing suchspecification regarding the presentation of the influent flows.  Suchprecise requirements with regard to data reporting are not included inany other provisions of the Rules.  This provision is confusing. Please provide the scientific relevance and importance. 

195. N.J.A.C. 7:15-8.5 (c) 1. - Allows for reliance on metered datafor water supply demands for the most recent 12-month period unless theDepartment requires an alternative time period.  In what instanceswould an alternative time period be required?  Criteria for when analternate time period would be required should be added to provide certainty. 

196. N.J.A.C. 7:15-8.5 (c) 2. - Allows for reliance on N.J.A.C. 7:10-12.6for determining water supply demand unless an alternative is approved orrequired by the Department.  In what instances would an alternativemethod be required?  Criteria for when an alternative method wouldbe required should be added to provide certainty. 

197. N.J.A.C. 7:15-8.6 - This section deals with existing and projectedfuture land uses.  Such analyses should be done a watershed basisto have any use.  To do these analyses for small projects, includingthose as small as 1-6 homes, will serve no purpose and can not be justifiedas cost effective.  There should be a threshold provided limitingthe applications of this analysis to the larger scale plans only.

198. N.J.A.C. 7:15-8.6 (b) 3. - Requires documentation of the estimatedaverage density of dwelling units, estimated average household size andestimated population densities for each category of residential land use. Where is such data available?  How will such data be obtained? 

199. N.J.A.C. 7:15-8.6 (c) 1. ii. (2) - what is meant by planned zoning?

200. N.J.A.C. 7:15-8.7 - sets forth the requirements for conductingalternatives analyses.  There is no provision in this section to addressthe cost of any of the alternatives including the no action alternative. Alternative analyses must consider economics. 

201. N.J.A.C. 7:15-8.7 (b). 2. - Requires that alternatives which willrequire changes in zoning be considered.   Is it the Department'sintention to force applicants to choose an alternative that will requirea change to the municipality's zoning?  In these cases the Departmentwill take on the responsibility of directing zoning changes on the locallevel.  Such responsibilities are clearly set forth in the MunicipalLand Use Law. This provision is inconsistent with the intent of that statute.

202. N.J.A.C. 7:15-8.7 (c) 2. - Requires consideration of alternativesincluding wastewater reuse.  Such consideration must make allowancefor the fact the existing Department regulations not encourage and in manyinstances allow for such reuse.  Thus this alternative is often nota viable alternative.

203. N.J.A.C. 7:15-8.7 (c) 5 - states that for an area to be servedby septics, evaluation of the creation of a septic system management districtis to be considered.  This provision then defines what constitutesa minimum septic system management program.  Will this minimum programbe acceptable in all cases?  If not, what additional provisions wouldneed to be included?  This section must be expanded to address this.

204. This provision does not address who would be responsible for implementinga septic management district. 

205. N.J.A.C. 7:15-8.7 (c) 6 - requires that for residential developmentof 6 or more houses on septic the option of clustering is to be considered. The Department's septic regulations (N.J.A.C. 7:9A) provide the optionfor municipalities or local boards of health to adopt septic standardswhich are more stringent than those adopted by the Department.  Inmany cases these more restrictive provisions include reserve septic disposalfields and also specify distances that must be established between thefields or between the field and the property boundary or other structures. These local provisions will restrict, if not prohibit, the option of clustering. To allow for t