Court Allows Suit Against New Jersey DEP to Move Forward!

NY/NJ Baykeeper and Hackensack Riverkeeper got some great legal news last week:a state appellate judge rejected a New Jersey Department of Environmental Protection effort to short circuit our law suit over combined sewer overflows.  Below is an excerpt from our joint press release:

In April of 2011, Baykeeper and Riverkeeper petitioned NJDEP to revoke its illegal Combined Sewer System permit. Combined Sewer Systems are antiquated sewers that convey both storm water and sewage to processing plants. When rain or melted snow enters combined sewer systems through storm drains, the polluted water can overwhelm system capacity and cause pipes to discharge raw sewage mixed with storm water directly into New Jersey rivers. This dumping of sewage is known as a Combined Sewer Overflow or CSO.  Sixteen permittees, mostly municipalities or municipal utilities authorities, operate CSOs under a single NJDEP permit. Most New Jersey towns use separate sewers and do not operate under this permit. 

According to the EPA, Combined Sewers discharge over 23 billion gallons of raw sewage to New Jersey Waters every year and have made portions of the New York and New Jersey Harbor unsafe for swimming and kayaking. Sewage overflows contain bacteria and viruses that can cause potentially dangerous illness and infection. CSOs discharge over 33 million pounds of nutrients that can lower oxygen levels in water and kill fish and shellfish. In their petition, Baykeeper pointed particularly to its stalled oyster research and restoration program and Riverkeeper pointed to its Secaucus paddling center as business interests harmed by NJDEP’s flawed CSO permit.

Last fall, NJDEP rejected the environmentalists’ petition, saying it intended to issue a new Combined Sewer System general permit that would “reflect the current status of compliance” in approximately six months. After Riverkeeper and Baykeeper sued, alleging numerous violations of state and federal law, the NJDEP requested that the Appellate Division remand the matter back to the agency so that it could develop new permits over the next several years.  The permits would require permittees to develop – but not implement – Long Term Control Plans to reduce overflows. The NJDEP wanted this remand to be unsupervised and have no enforceable timelines.  In its opposition to the remand motion, Baykeeper and Riverkeeper laid out an extensive history of missed deadlines and excuses from the state regulators dating back to the Clean Water Act’s passage 40 years ago.

Today, the environmental groups announced the Appellate Division had denied NJDEP’s request. NY/NJ Baykeeper Deborah Mans said, “No court looking at the decades of delay laid out in our legal filing would seriously consider turning this back over to the DEP so they could sit on it for decades more.”

Long Term Control Plans are intended to help permittees meet water quality requirements in the waterbodies where they discharge. In court filings, NJDEP said it needed nearly ten more years to ultimately implement these plan but the Keepers showed that the first requirement to develop these plans was included over seventeen years ago in NJDEP’s 1995 permit. Not only had the DEP required the permittees to develop these plans, the permittees had, in fact, done so.

“I couldn’t believe that the DEP wanted another permitting cycle, maybe another decade, to study an issue they had been studying for 17 years.” Said Captain Bill Sheehan, the Hackensack Riverkeeper. “I have friends who work on CSOs in my watershed. They told me the DEP made them spend all this money writing these plans and now that investment is just sitting on their shelves gathering dust. DEP just needs to tell them to start working. They don’t need ten years to tell them to start working.”

The Court’s decision means that legal briefing will go forward. The Keepers filed their brief in May; NJDEP’s substantive brief should be filed with the court next week.

“It will be interesting to see what arguments the DEP will make in its briefing to try to justify its permit,” said Christopher Len, joint staff attorney for Baykeeper and Riverkeeper. “Until now, the Department has been able to delay judgment on its CSO program. Hopefully, judgment day is coming soon.”

Earthrise Law Center (formerly the Pacific Environmental Advocacy Center) and the Columbia Law School Environmental Law Clinic provide legal representation to NY/NJ Baykeeper and Hackensack Riverkeeper in this case. The case is In Re Petition to Revoke Statewide General CSO Permit, docket No: A-006127-10.  NY/NJ Baykeeper and Hackensack Riverkeeper are members of the Waterkeeper Alliance, an international environmental organization whose vision is fishable, swimmable and drinkable waterways worldwide.