DEPARTMENT OF ENVIRONMENTAL PROTECTION

THIS IS A COURTESY COPY OF THIS RULE PROPOSAL. THE OFFICIAL VERSION IS SCHEDULED TO BE PUBLISHED IN THE SEPTEMBER 19, 2005, NEW JERSEY REGISTER. SHOULD THERE BE ANY DISCREPENCIES BETWEEN THIS TEXT AND THE OFFICIAL VERSION OF THE PROPOSAL, THE OFFICIAL VERSION WILL GOVERN. ____________________________

DEPARTMENT OF ENVIRONMENTAL PROTECTION

LAND USE MANAGEMENT

WATER MONITORING AND STANDARDS

Surface Water Quality Standards

Proposed Re-adoption with Amendments: N.J.A.C. 7:9B-1.4, 1.5, 1.6, 1.14, 1.15

Authorized By:

Bradley M. Campbell, Commissioner, Department of Environmental Protection

Authority: Calendar Reference DEP Docket Number:

N.J.S.A. 58:10A-1 et seq., 58:11A-1 et seq., N.J.S.A. 13:1D-1 et seq. See Summary below for explanation of exception to calendar requirement. 30-05-081545

Proposal Number:

---------------

Public hearings concerning this proposal will be held on October 24, 2005 from

3:30 PM to 5:00 PM or close of testimony which ever occurs first and 6:00 PM to 7:00 PM or close of testimony which ever occurs first

at

NOTICE

Department of Environmental Protection 401 East State Street Public Hearing Room Trenton, NJ 08625

This public hearing has been changed from October 24, 2005 to November 9, 2005. The time and

location remain the same.

Submit written comments by November 18, 2005, to:

Gary J. Brower, Esq. Attn. DEP Docket Number - 30-05-081545 Office of Legal Affairs New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402

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THIS IS A COURTESY COPY OF THIS RULE PROPOSAL. THE OFFICIAL VERSION IS SCHEDULED TO BE PUBLISHED IN THE SEPTEMBER 19, 2005, NEW JERSEY REGISTER. SHOULD THERE BE ANY DISCREPENCIES BETWEEN THIS TEXT AND THE OFFICIAL VERSION OF THE PROPOSAL, THE OFFICIAL VERSION WILL GOVERN. ____________________________

The New Jersey Department of Environmental Protection (Department) requests that

commenters submit comments on disk or CD as well as paper. Submission of a disk or CD is not

a requirement. The Department prefers Microsoft Word 6.0 or above. MacIntosh formats

should not be used. Each comment should be identified by the applicable N.J.A.C. citation, the

commenter's name and affiliation following the comment.

Copies of this rule proposal can be downloaded electronically from the Department's web page at .

The agency proposal follows:

SUMMARY

As the Department has provided a 60-day comment period on this notice of proposal, this proposal is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:303.3(a)5.

The Department administers the Surface Water Quality Standards (SWQS) for the protection of surface water quality of the waters of the State. The Department develops and administers the SWQS pursuant to the Water Pollution Control Act, (WPCA), N.J.S.A. 58:10A-1 et seq., the Water Quality Planning Act (WQPA), N.J.S.A. 58:11A-1 et seq., and in conformance with requirements of the Federal Water Pollution Control Act, 33 U.S.C. ?1251 et seq., commonly known as the Clean Water Act (CWA), and the Federal regulatory program established pursuant to the CWA by the United States Environmental Protection Agency (USEPA) at 40 CFR 131. The SWQS include general requirements, use designations, classifications, antidegradation categories, and water quality criteria applicable to the surface waters of the State. The SWQS also address the Department's responsibilities to conduct a continuing planning process pursuant to Section 303 of the CWA, 33 U.S.C. ? 1313, and Section 7 of the WQPA, N.J.S.A. 58:11A-7.

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THIS IS A COURTESY COPY OF THIS RULE PROPOSAL. THE OFFICIAL VERSION IS SCHEDULED TO BE PUBLISHED IN THE SEPTEMBER 19, 2005, NEW JERSEY REGISTER. SHOULD THERE BE ANY DISCREPENCIES BETWEEN THIS TEXT AND THE OFFICIAL VERSION OF THE PROPOSAL, THE OFFICIAL VERSION WILL GOVERN. ____________________________

The SWQS are utilized by New Jersey Pollutant Discharge Elimination System (NJPDES) (N.J.A.C. 7:14A) surface water discharge permitting program in the development of water quality-based effluent limitations (WQBEL) to protect or improve the existing water quality and designated uses. They are also utilized by the Department's Site Remediation Program (N.J.A.C. 7:26E) to ensure discharges flowing to surface water comply with the SWQS. The Land Use Regulation Program, through the Freshwater Wetlands Program, N.J.A.C. 7:7A, the Coastal Permitting Program, N.J.A.C. 7:7E, and the Stream Encroachment Program, N.J.A.C. 7:13, also utilizes the SWQS to establish permit requirements.

In July 1994, the Department entered into a Consent Agreement with the Association of Environmental Authorities (AEA) concerning its appeal of certain components of the SWQS (See 25 N.J.R. 5569(a); December 6, 1993). Pursuant to the terms of the Consent Agreement, the Department agreed to review and as appropriate, amend the SWQS, revising its regulations concerning mixing zones for enterococcus bacteria, antidegradation policies, expression of existing water quality criteria for metals as dissolved metals (including the water effects ratio concept); recalculation of aquatic life protection criteria for lead; point of application of the freshwater human health criteria; basis for human health lead criteria; averaging periods for ammonia, chlorine, and metals criteria; detection levels for chemical-specific parameters limited in NJPDES permits; application factors used to implement acute and chronic whole effluent toxicity (WET) limitations; and procedures to develop site-specific aquatic life protection criteria.

Since entering into the Consent Agreement with AEA, the Department has modified the SWQS and has taken other actions to protect and preserve the State's waters. The Department readopted the SWQS on May 18, 1998 (30 N.J.R. 1778(a)) with a chapter expiration date of April 18, 2003. In 2002, after consultation with stakeholders, the Department adopted amendments updating and improving various aspects of the SWQS. Amendments adopted at that time included changes to regulatory mixing zone provisions, addition of metal translators, revised stream classifications, aquatic life protection criteria for ammonia and lead, and revised human health criteria for PCBs. (See 34 N.J.R. 537(a); January 22, 2002). To allow the

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THIS IS A COURTESY COPY OF THIS RULE PROPOSAL. THE OFFICIAL VERSION IS SCHEDULED TO BE PUBLISHED IN THE SEPTEMBER 19, 2005, NEW JERSEY REGISTER. SHOULD THERE BE ANY DISCREPENCIES BETWEEN THIS TEXT AND THE OFFICIAL VERSION OF THE PROPOSAL, THE OFFICIAL VERSION WILL GOVERN. ____________________________

Department time to fully evaluate the SWQS as part of a re-adoption of the chapter, the expiration date was extended to August 17, 2005 (See 35 N.J.R. 2264(a); May 19, 2003 and 37 N.J.R. 1887(a); May 16, 2005).

Since the adoption of the January 2002 amendments referenced above, the Department also adopted several amendments upgrading the stream classification and/or antidegradation designation of the surface waters of New Jersey.

? On May 18, 2003 the Department upgraded 15 waterbodies to Category One, based on "exceptional ecological significance" and "exceptional water supply significance" (35 N.J.R. 2264(b); May 18, 2003).

? On November 3, 2003 the Department upgraded several stream classifications based on trout status, and upgraded a portion of the Paulins Kill to Category One based on "exceptional ecological significance" including the need to protect the presence of the Dwarf Wedgemussel, an endangered species. (35 N.J.R. 5086(a); November 3, 2003).

? On August 2, 2004 the Department adopted Category One antidegradation designation for seven streams including both named and unnamed tributaries based on "exceptional ecological significance". Significant drainage areas of the Manasquan River, Metedeconk River and natural drainage to the Oradell Reservoir were also upgraded to Category One antidegradation designation based upon "exceptional water supply significance". In addition, the stream classification for two stream segments was upgraded to FW2-TP(C1) based on the trout status. The Department also upgraded the South Branch Rockaway Creek from FW2-TM(C1) to FW2-TP(C1) based on confirmation of trout production in this waterbody (36 N.J.R. 3565(c); August 2, 2004).

? On June 20, 2005, the Department adopted amendments to upgrade the antidegradation designation of the non-tidal portion of the Shark River Brook as Category One based on "exceptional water supply significance". The Department also adopted the use classifications of the Shark River Brook as freshwater (FW2) and the tidal portion of Shark River as saline estuarine water (SE1) (37 N.J.R. 2251(a); June 20, 2005).

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THIS IS A COURTESY COPY OF THIS RULE PROPOSAL. THE OFFICIAL VERSION IS SCHEDULED TO BE PUBLISHED IN THE SEPTEMBER 19, 2005, NEW JERSEY REGISTER. SHOULD THERE BE ANY DISCREPENCIES BETWEEN THIS TEXT AND THE OFFICIAL VERSION OF THE PROPOSAL, THE OFFICIAL VERSION WILL GOVERN. ____________________________

The previous amendments were intended to address various issues and improve the SWQS in a number of ways.

The United States Fish and Wildlife Service prepared a Biological Opinion (Biological opinion on the effects of the U.S. Environmental Protection Agency's approval of the State of New Jersey's surface water quality standards on the bald eagle, peregrine falcon, and dwarf wedgemussel. U.S. Department of the Interior, Fish and Wildlife Service (USFWS), New Jersey Field Office, Pleasantville, New Jersey, 1996) as part of the 1994 approval of the New Jersey SWQS triennial review process. A copy of this document can be obtained from the Department of Environmental Protection, Bureau of Water Quality Standards and Assessment, P.O. Box 409, Trenton, NJ 08625. The USFWS determined New Jersey's SWQS were not adequate to protect these threatened and endangered species and identified changes that were needed to the mixing zone provisions, antidegradation policy and criteria for compounds with a high potential for bioaccumulation.

To address the USFWS concern with New Jersey's mixing zone requirements, in the 2002 amendments reference above, the Department added a new provision at N.J.A.C 7:9B1.5(h)5iv which prohibits mixing zones to areas with documented occurrences of any threatened and endangered species, if those discharges would likely have an adverse effect on the species or its associated habitat (34 N.J.R. 537(a)). In addition, the Department has upgraded the antidegradation designation for several stream segments to protect threatened and endangered species, specifically dwarf wedgemussels. (See 35 N.J.R. 2264(b), 35 N.J.R. 5086(a), and 36 N.J.R. 3565(c)).

The lack of wildlife criteria for DDT and its metabolites, mercury, and PCBs was a concern to the USFWS. DDT and its metabolites, mercury, and PCBs are bioaccumulative pollutants that are persistent in the environment, accumulate in biological tissues, and biomagnify in the food chain. Due to these characteristics, the concentration of these contaminants may increase as they are transferred up through various food chain levels. As a

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