                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NOS. A-5266-07T3
                                                A-5271-07T3
                                                A-5990-07T3
                                                A-5993-07T3
IN THE MATTER OF ADOPTION OF
AMENDMENTS TO THE NORTHEAST,
UPPER RARITAN, SUSSEX COUNTY
                                         APPROVED FOR PUBLICATION
AND UPPER DELAWARE WATER
QUALITY MANAGEMENT PLANS TO                    May 15, 2014
ESTABLISH TOTAL MAXIMUM DAILY
LOADS IN THE NON-TIDAL PASSAIC             APPELLATE DIVISION
RIVER BASIN AND POMPTON LAKE/
RAMAPO RIVER ADDRESSING PHOSPHORUS
IMPAIRMENTS AND TO ESTABLISH
WATERSHED CRITERIA.
___________________________________

         Argued June 2, 2009 – Remanded July 21, 2009
         Reargued March 5, 2014 – Decided May 15, 2014

         Before Judges Grall, Waugh, and Accurso.

         On appeal from the New Jersey Department of
         Environmental Protection.

         Diane   Alexander    argued   the    cause   for
         appellants    Pequannock,    Lincoln    Park   &
         Fairfield     Sewerage    Authority,     Hanover
         Sewerage    Authority,   and    Madison-Chatham
         Joint Meeting (Maraziti, Falcon & Healey,
         L.L.P.,    attorneys;    Ms.    Alexander,    of
         counsel and on the briefs).

         Robert A. Goodsell argued the cause for
         appellant Warren Township Sewerage Authority
         (Post,    Polak,   Goodsell,    MacNeill   &
         Strauchler, P.A., attorneys; Mr. Goodsell,
         of counsel and on the briefs; Alexa E.
         Miller, on the briefs).
           Jane F. Engel, Deputy Attorney General,
           argued the cause for respondent New Jersey
           Department of Environmental Protection (John
           J.   Hoffman,   Acting   Attorney   General,
           attorney;   Melissa  H.   Raksa,   Assistant
           Attorney General, of counsel; Ms. Engel, on
           the brief).

           William R. Lundsten argued the cause for
           respondent   North  Jersey   District   Water
           Supply Commission (DeCotiis, FitzPatrick &
           Cole, LLP, attorneys; Mr. Lundsten, of
           counsel; Kevin M. Kinsella, on the brief).

      The opinion of the court was delivered by

WAUGH, J.A.D.

      Appellants Pequannock, Lincoln Park and Fairfield Sewerage

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

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

Township Sewerage Authority (WTSA) appeal the determination of

respondent   New   Jersey   Department      of   Environmental    Protection

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

be   institutionally   impracticable       for   respondent    North    Jersey

District Water Supply Commission (North Jersey) to implement an

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

effluent discharged into the Passaic River during the months

between November and April.     We affirm.



1
  In re Adoption of Amendments to the Ne., Upper Raritan, Sussex
Cnty. & Upper Del. Water Quality Mgmt. Plans, Nos. A-5266-07, A-
5271-07, A-5990-07, and A-5993-07 (App. Div. July 21, 2009).



                                      2                                A-5266-07T3
                                        I.

     We discern the following facts and procedural history from

the record on appeal.2

     In     2008,     the    Department       adopted    amendments        to     its

Northeast,    Upper    Raritan,      Sussex    County,    and     Upper    Delaware

Water     Quality    Management      Plans    (WQMPs).        Those   amendments

established    total       maximum   daily    loads     (TMDLs)     limiting      the

amount of phosphorus, a nutrient that contributes to the growth

of algae, discharged into the Passaic River.                  Appellants collect

municipal wastewater for treatment, after which they discharge

the treated water into the Passaic River.3

     In 1987, the Department issued a special report, entitled

"Passaic     River     Water      Quality      Management        Study,"        which

recommended    that    a    detailed    nutrient      study    be   conducted      to

determine the maximum amount of phosphorus that sewage treatment

plants should be allowed to discharge into the Passaic River.

The Department subsequently adopted interim standards for the

phosphorus content of effluent discharged into the river and

2
   We incorporate by reference the more detailed factual,
procedural, and statutory background contained in our earlier
opinion.
3
  We note that, as of the date of oral argument, none of the
appellants have even constructed the facilities necessary to
treat the phosphorus level of their effluent.   The manner in
which those facilities are constructed does not depend on the
outcome of this appeal.



                                        3                                  A-5266-07T3
undertook extensive studies to determine appropriate long-term

standards.         That      process       included     studies    by     a     private

consulting firm and a panel of academics, comments by technical

and public advisory committees, and public hearings.                           In April

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

      Appellants filed separate appeals, challenging aspects of

the WQMPs.       We consolidated the appeals.            Appellants argued that

the Department was arbitrary and capricious in requiring them to

comply with the stringent limitations on the phosphorus content

of their effluent during times of the year when daily adherence

to such limitations is not necessary to maintain water quality

in   the   waterways       located     downstream       from   their     facilities,

particularly       the    location     from     which   the    Wanaque    Reservoir,

operated by respondent North Jersey, diverts water to replenish

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

in the Wanaque Reservoir could be maintained adequately if the

Department       only    required    strict      compliance     from     May    through

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

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

contend compliance should be required only when North Jersey

actually anticipates diverting water from the Passaic River into

the Wanaque Reservoir.          They asserted that off-season diversion

occurs infrequently and can be scheduled sufficiently in advance




                                            4                                  A-5266-07T3
to permit dischargers to reduce their effluent to the required

phosphorus standard.          The Department had rejected that approach

during   the    WQMPs    adoption   process,      taking    the   position   that

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

outside the control of the regulated entity is institutionally

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

      In our earlier opinion, we observed that the Department had

not explained what it meant by "institutionally impracticable"

and   noted    that     the   extensive       documentary   record   supporting

adoption of the stringent discharge limitations did not address

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

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

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

op. at 12).       We concluded that

              the   feasibility  of   generally  requiring
              adherence to those limitations only from May
              through October depends on the answer to two
              questions.   First, how long in advance can
              North Jersey reasonably be expected to know
              of the need for an off-season diversion?
              Second, how much advance notice of a
              proposed diversion will appellants and other
              dischargers require in order to bring the
              level of phosphorus in their effluent into
              compliance with the new strict phosphorus
              limitations during the off-season?

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




                                          5                             A-5266-07T3
Consequently, we remanded for an evidentiary hearing to address

those questions, but upheld the validity of the WQMPs amendments

in all other respects.      We retained jurisdiction.

    On remand, the Department transferred the matter to the

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

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

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

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

limited   to   cross-examination      and   redirect-examination.         The

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

2010.

    With respect to        the first question, how far in advance

North Jersey can reasonably be expected to predict the need for

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

Wanaque Reservoir, the parties presented three witnesses: Dr.

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

Water   Management   and   Planning     Department   on   behalf   of   North

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

Environmental Specialist in the Division of Water Supply, Bureau

4
  The Department objected to appellants' demands for certain
water quality data used in developing the TMDLs and moved to
limit discovery. The ALJ granted the motion. The Commissioner
denied interlocutory review, and we denied leave to appeal. The
ALJ also granted the Department's motion to join North Jersey as
an indispensable party.      North Jersey sought interlocutory
review of that order, which the Commissioner denied, as did we.



                                      6                             A-5266-07T3
of Water Allocation on behalf of the Department; and Les K.

Lampe, a licensed professional engineer and Vice President of

Black and Veatch in its Water Resources Global Practice and

Technology Leader Department on behalf of appellants.

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

is    required    for     dischargers      to   bring    their    effluent      into

compliance with the required phosphorus limitations, the parties

presented six witnesses: Jurek Patoczka,5 licensed professional

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

Bongiovanni,      the     Executive      Director   of   Two     Bridges;     Robert

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

engineering firm retained by Two Bridges to develop a plan for

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

professional          engineer      with        Chavond-Barry       Engineering,

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

professional engineer and the Director of Wastewater Practice

for   Omni   Environmental,        consultants      to   Madison-Chatham;         and

Michael Wynne, Executive Director of Hanover.




5
  Please note that Patoczka's name is misspelled as "Uri Petaska"
in the transcript.
6
  Please note the Rectanus's last name is misspelled as "Retanis"
in the transcript.




                                           7                                A-5266-07T3
      With respect to the time it takes "a clean drop of water"

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

Passaic River with the Pompton River, Patricia Kehrberger, an

expert in water quality modeling and evaluation, testified for

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

the transport of pollutants in river and lake systems, testified

for   the    Department.        Pilar    Patterson,             Bureau       Chief   of     the

Department's Bureau of Surface Water Permitting, testified about

the   time    required    for    dischargers            to    sample    and    demonstrate

compliance with the applicable TMDLs limit.

      Barbara        Hirst,    Chief    of        the        Department's       Bureau       of

Environmental Analysis and Restoration within the Division of

Watershed      Management,      testified          concerning          the    Department's

earlier rulemaking decision.                 Richard T. Dewling, a licensed

professional engineer and President of Dewling Associates, Inc.,

testified on behalf of appellants that there was no scientific

or technical basis for requiring phosphorus to be removed in the

winter      months    when    water     is       not    diverted       to     the    Wanaque

Reservoir.

      In her decision, the ALJ summarized the testimony of the

seventeen witnesses presented by the parties, all of whom were

qualified as experts in their fields.                         She determined that at

the   time    the    amended    WQMPs    were          adopted    there       had    been    no




                                             8                                       A-5266-07T3
objective     substantiation        of     the      Department's         conclusion        that

conditional         off-season          limitations          were        "institutionally

impracticable."

       Based upon her review of the historic records, the ALJ

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

water from the Passaic River during winter months on only six

occasions     that     would     have     required         dischargers          to    commence

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

in   place.         Four   of    those     occasions         would       have    involved      a

temporary period of phosphorus treatment, while two would have

necessitated        only   an    early    resumption         of    the     regular        summer

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

North Jersey diverted water from the Passaic River during winter

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

temporary     treatment.          The     other       would       have    been       an   early

resumption of regular treatment.

       The    ALJ     concluded         that       North     Jersey       is    capable      of

predicting most of the conditions requiring diversions fourteen

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

conditions have not been significant to the pumping decisions

historically.          She      found    that       North     Jersey      is    capable      of

notifying the Department and dischargers of potential diversions

two weeks in advance of any actual diversions.                                  She further




                                               9                                      A-5266-07T3
concluded that a fourteen-day notice requirement prior to any

water diversion would not lead to a disastrous water supply

shortfall in the northeastern region of New Jersey.

    Because North Jersey would exercise the sole discretion as

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

could build extra time into the notice period, thereby assuring

that the stricter phosphorus levels would be attained prior to

pumping.     The dischargers would then be required to continue

treatment until North Jersey advised them that it was no longer

required.

    Based    on   her   evaluation   and    weighing    of   the   scientific

evidence    presented   at   the   hearing,    the     ALJ   concluded    that

dischargers, including appellants, have sufficient information

about their own wastewater treatment processes, waste stream,

and chemical additives to enable them to resume the required

level of treatment when necessary to treat effluent prior to an

off-season diversion by North Jersey.             She further concluded

that the scientific evidence adduced at the hearing supported

the conclusion of several experts, to a reasonable degree of

certainty in their fields of expertise, that dischargers that do

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

required monthly average level of phosphorus within five days of

initiating increased treatment.            Dischargers with aeration or




                                     10                              A-5266-07T3
polishing ponds would need additional time, corresponding to the

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

the pond.

    The      ALJ    further        concluded      that    appellants       and    other

upstream dischargers can comply with monitoring, testing, and

other reasonable conditions imposed by the Department incidental

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

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

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

a year-round basis.

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

of public resources for unnecessary introduction of chemicals

into the Passaic River and the production of additional sludge

requiring disposition.           However, the ALJ also concluded that the

economic impact of year-round phosphorus treatment, even though

that treatment might be unnecessary for seventy-five percent or

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

demonstrated to be significant.

    The      ALJ    reached      five     final    conclusions.          First,    the

Department     failed       to     make    a    diligent       inquiry     into     the

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

initially    adopting      the     revised      WQMPs    for   the   Passaic      River

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




                                           11                                A-5266-07T3
is feasible given the current wastewater treatment technology,

assuming       reasonable    cooperation         among    the    agencies     involved.

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

place     a    significant        fiscal    burden       on     upstream     wastewater

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

treatment      program     would    be   environmentally          protective    of   the

Wanaque Reservoir and its supply of safe drinking water and at

least environmentally neutral with respect to the Passaic River

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

Department has the necessary authority to implement the proposed

as-needed program.

     The Commissioner rejected the ALJ's ultimate conclusion.

Instead, he concluded that implementation of such a treatment

program       is    institutionally        impractical.           He    explained    his

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

Commissioner forwarded his remand decision to the clerk in July

2012, after which we allowed the parties to submit additional

briefs.

                                           II.

     Appellants challenge the Commissioner's rejection of the

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

is   institutionally         feasible       and    argue        that    he   improperly

rejected or ignored the ALJ's findings and conclusions.




                                            12                                 A-5266-07T3
                                           A.

      Our scope of review of an administrative agency's final

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

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

decision of the administrative agency is arbitrary, capricious,

or unreasonable, or is not supported by substantial credible

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

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

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

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

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

an     agency's          "exercise           of        statutorily        delegated

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

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

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

agency's action was arbitrary, capricious or unreasonable rests

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

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

188 N.J. 219 (2006).

      Our    limited    standard      of    review   of   administrative     agency

decisions is informed by three inquiries:

             (1) whether the agency's action violates
             express or implied legislative policies,
             that is, did the agency follow the law;
             (2) whether the record contains substantial



                                           13                              A-5266-07T3
            evidence to support the findings on which
            the agency based its action; and (3) whether
            in applying the legislative policies to the
            facts, the agency clearly erred in reaching
            a conclusion that could not reasonably have
            been made on a showing of the relevant
            factors.

            [Mazza v.           Bd.   of    Trs.,       143    N.J.    22,      25
            (1995).]

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

expertise,     particularly           in   cases    involving         technical        matters

within   the      agency's       special     competence.              In   re    Freshwater

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

      "[J]udicial deference to administrative agencies stems from

the   recognition      that      agencies        have    the   specialized           expertise

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

'particularly well equipped to read and understand the massive

documents    and    to     evaluate        the    factual      and     technical        issues

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

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

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

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

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

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

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

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

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



                                             14                                       A-5266-07T3
(1990)).     The court "may not vacate an agency determination

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

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

deference to the view of those charged with the responsibility

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

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

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

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

    In     reviewing     administrative      adjudications,        an    appellate

court must undertake a "careful and principled consideration of

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

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

Appellate    Division     is   satisfied     after      its     review   that    the

evidence and the inferences to be drawn therefrom support the

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

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

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

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

erroneous, the decision is not entitled to judicial deference

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

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

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

(1999).




                                      15                                   A-5266-07T3
    An ALJ's factual findings and legal conclusions are not

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

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

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

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

Div. 1983).

    An     agency    head       may    only    reject   the   ALJ's    credibility

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

record     that     the     findings      are     arbitrary,       capricious     or

unreasonable or are not supported by sufficient, competent, and

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

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

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

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

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

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

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

                                          B.

    Applying our limited scope of review to the remand decision

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

applicable    law,    we    conclude      that   the    result   reached    by   the

Commissioner is not arbitrary, capricious, or unreasonable, and




                                          16                               A-5266-07T3
that it is supported by substantial credible evidence in the

record as a whole.

      The decision at issue involves the enforcement of important

water    quality     statutes    intended      to     improve      the   quality    of

drinking water in the covered area through treatment to reduce

the amount of phosphorous and then to maintain that improved

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

of    environmental        protection,        has     been    tasked      with     the

responsibility        of    implementing            and     enforcing       the    new

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

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

particularly    in    cases     involving     technical      matters     within    the

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

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

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

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

whether the result reached by the Commissioner is "arbitrary,

capricious, or unreasonable, or is not supported by substantial

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

N.J. Super. at 521.

      As we suspected in our initial opinion, the ALJ determined

that the Department's initial rejection of appellants' proposal

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




                                         17                                  A-5266-07T3
significant      study    or    consideration        of   the     issue.      To   that

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

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

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

predict    the    need    for   a    diversion       of   water    to   the   Wanaque

Reservoir and the lead time required by upstream dischargers,

such as appellants, to decrease their effluent to the required

phosphorus level.

    The Commissioner concluded that the ALJ improperly shifted

the focus of the remand by approaching the analysis from the

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

would   take     appellants      and    other    dischargers       to   bring      their

effluent    into     compliance         with    phosphorus         limits,    thereby

requiring North Jersey to alter its mode of operations.                               We

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

have placed the burden on North Jersey to demonstrate that it

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

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

    North        Jersey's      Tao     took    the    position      that     diversion

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

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

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

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




                                          18                                  A-5266-07T3
be made much further in advance.                      Tao's testimony was a mixture

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

historical       experience         at       North        Jersey,           along       with     his

anticipation that, once the water quality has been improved,

North Jersey would make more frequent diversions of water for

shorter    durations         than      in    the        past,    and        his     acknowledged

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

and experience with treatment in other locations, rather than

actual experience concerning the Wanaque Reservoir.

    We are satisfied that the Commissioner's decision to accept

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

capricious.            It   is      adequately           supported          in      the    record,

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

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

conclude       that    there     are     sufficient         facts       in    the       record       to

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

that North Jersey could reasonably predict the need to divert

water significantly longer in advance, particularly given Tao's

desire    to     transition       to     more      frequent,          but    less       prolonged,

periods of diversion.

    The        Commissioner         also         rejected       the     ALJ's          conclusions

concerning       the    time     necessary         for    dischargers             to    bring    the

quality    of    their      effluent        to    the    required       level          prior    to   a




                                                 19                                        A-5266-07T3
diversion.      He observed that the ALJ's conclusion was based

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

to do so, testimony the Commissioner found inconsistent with

that of other witnesses whose opinions he found more reliable,

including Wynne, Rectanus, and Bradley.                The Commissioner also

noted   that     Patoczka       had     not   even    distinguished     between

facilities     with    and    without   finishing     ponds,   a   factor    found

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

testimony and other evidence, the Commissioner concluded that it

would take at least seven days                advance notice, with several

additional     days     for    facilities     using   finishing     ponds,     for

dischargers to treat their effluent to the required level.

    The Commissioner further rejected the ALJ's conclusion that

there would be sufficient time for dischargers to test the water

quality adequately after treatment but prior to diversion by

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

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

with an on-site certified laboratory and typically about four

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

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

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

get printed results back from a laboratory, and expedited review

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




                                         20                             A-5266-07T3
table    14-1,      which       requires         composite      samples      for      major

dischargers to demonstrate compliance, the Commissioner declined

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

to demonstrate that the level of compliance had been achieved.

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

needed treatment program would impose significant burdens on the

Department, including a need for additional staff.

       Our   review        of    the       record       convinces       us   that        the

Commissioner's conclusions were not arbitrary or capricious, and

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

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

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

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

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

that    expertise.           Because       the     Commissioner's        choice       finds

significant        support      in   the     record,      his    decision      was       not

arbitrary or capricious.

       Having upheld the Commissioner's determination that North

Jersey cannot reasonably be expected to give significant advance

notice of a diversion and that the dischargers cannot reasonably

be expected to bring their effluent to the required standard,

including time required for testing within the time reasonably

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




                                            21                                     A-5266-07T3
conclusion that an off-season, as-needed treatment program is

"institutionally impracticable" is not "arbitrary, capricious,

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

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

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

quality   of   drinking   water,    our    obligation   to    defer   to    the

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

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

     Affirmed.




7
  As noted at the beginning of our opinion, the appellants have
not built the required facilities and, of necessity, have not
started treatment. Once the treatment program has actually been
in operation for several years and there is actual experience
concerning North Jersey's needs and timing of diversion,
appellants can seek to revisit the viability of an off-season,
as-needed treatment program.



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