2012-06-21 / Front Page

Baykeeper asks court to force DEP to clean up N.J. waters

Pollution of Raritan Bay forced shutdown of oyster restoration project
BY NICOLE ANTONUCCI
Staff Writer


NY/NJ Baykeeper staff install rebar reefs in 2009 to encourage the formation of a reef ecosystem that would restore oyster habitat in portions of Raritan Bay. The DEP ordered the project to be shut down in 2010, citing pollution of the bay. 
FILE PHOTO NY/NJ Baykeeper staff install rebar reefs in 2009 to encourage the formation of a reef ecosystem that would restore oyster habitat in portions of Raritan Bay. The DEP ordered the project to be shut down in 2010, citing pollution of the bay. FILE PHOTO KEYPORT — The NY/NJ Baykeeper, Hackensack Riverkeeper and the Raritan Riverkeeper have gone to court to force the N.J. Department of Environmental Protection (DEP) to comply with the mandates of the federal Clean Water Act.

In a petition filed May 18 in the Appellate Division of state Superior Court, attorneys for the environmental groups ask the panel to revoke the DEP’s Combined Sewer Outfall (CSO) general permit, which allows billions of gallons of sewage to flow into New Jersey waters in violation of the Clean Water Act and endangering human health.

According to Chris Len, staff attorney for the Keyport-based Baykeeper as well as the Hackensack Riverkeeper, the legal action is an appeal of the DEP’s September 2011 decision to deny the Baykeeper’s April 2011 petition to revoke the CSO general permit.

“Under New Jersey law, the DEP commissioner must on petition revoke a permit if it is necessary to protect human health and the environment, or if it is in conflict with law,” Len said in an interview June 18.

Pollution of Raritan Bay is the reason the DEP cited when it ordered the Baykeeper to shut down an oyster restoration project in 2010.

“The DEP made them remove the oysters because there was too much pathogenic pollution in the water,” Len said.

“And the reason why there is too much pathogenic pollution in the water is because of the CSOs, which they don’t properly regulate.”

The appeal was filed on behalf of the environmental groups by attorneys with the Morningside Heights Legal Services’ Environmental Law Clinic of the Columbia University School of Law.

Leland Moore, a spokesman for the state Attorney General’s Office, which is representing the DEP, declined to comment on the suit.

“We have not yet submitted our response brief on behalf of DEP and therefore have no comment,” Moore said.

According to Elizabeth Reubman, policy and campaign associate for the Baykeeper, the DEP permit allows the discharge of some 23 billion gallons of sewage per year to be discharged into New Jersey waters and does not come close to meeting the requirements of the Clean Water Act.

The brief states that in many sewer systems in the state, storm water collected in storm drains is combined with sewage collection systems.

These combined sewage systems are remnants of early infrastructure, where untreated waste from both human and industrial uses flows freely with collected storm water in a combined pipe, the brief states.

During a rain event, the increased volume can overwhelm the system and untreated raw sewage flows into rivers and streams.

“If it rains a quarter-of-an-inch, the combined systems will overflow and the raw sewage will go directly into the water,” Reubman said.

According to the brief, the DEP has stated that it planned to issue a new general permit with revised conditions in six months, but the agency has failed to do so and is violating state law.

According to the brief filed May 18, the DEP grants a general permit for all combined sewage outflows in the state, covering a group of facilities that have the same type of discharge and are located in the same geographic area.

“This permit is general for New Jersey, so everywhere in the state that has CSOs affecting water quality, the permit applies in the same way,” Len explained.

As many as 30 entities accounting for 280 outfalls currently operate under this general CSO permit and routinely discharge untreated waste into waterways during rain events, according to the brief.

Len explained that the waters the Baykeeper and the Hackensack Riverkeeper monitor are directly affected by CSOs.

In addition, the Hackensack Riverkeeper operates a paddling center business on the Hackensack River.

“People are not too keen on getting into a kayak when the river is filled with raw sewage and industrial pollutants,” Len said. “So this an important initiative for both organizations.”

In the suit, the Baykeeper claims the general permit is flawed and an individual permit would address the specific circumstances of a facility’s discharge.

“Baykeeper believes that the NJ DEP must require individual permits that require permittees to meet water quality standards, adopt minimum technological controls and institute enforceable long- term control plans to finally solve New Jersey’s CSO crisis,” Reubman stated in an email June 5.

The brief argues that the DEP must revoke the permit because it violates the Clean Water Act.

“DEP’s CSO general permit violates the federal Clean Water Act because the permit does not require compliance with federal water quality standards and does not require compliance with federal technology-based effluent limitations.”

Len explained that under the law, the permit must require the best technology to be used to reduce pollution and must be updated every five years.

“This has not happened here. They don’t require the best technology, which is spelled out in the law,” Len said, adding that the permit is supposed to require the permittee not to violate the water quality standards.

“They are not supposed to let the river or the bay area get a certain amount of ‘dirty’ and the permit does not require that.”

Len explained that the Baykeeper and Hackensack Riverkeeper are also asking the DEP to revoke the permit because the contaminated sewage discharge endangers human health and the environment.

These discharges carry toxic chemicals, which make the water unsafe for recreational use and marine life, he said.

According to the brief, CSO discharges can lead to the accumulation of toxic chemicals in the sediment at the bottom of lakes, rivers and streams, posing a threat to aquatic life and human health.

“The sewage contains viruses, bacteria, protozoa, worms,” Len said. “Anything that comes out of a human or animal body ends up in there [and] can give you viral, bacterial, protozoan or worm infections, and that is a pretty clear threat to human health to anyone who goes in or near the water.”

Reubman explained that the DEP regularly tests swimming beaches, but does not undertake testing in Raritan Bay or North Jersey rivers.

If testing is done, she said, people aren’t notified.

“We feel that people should be able to use our rivers for recreation, and they should be able to swim safely in them and not have to worry about getting sick from raw sewage,” she said.

“New Jersey has been studying this problem for 30 years, and it is time to implement a solution so that our waters are not used for the discharge of raw sewage.”

Len explained that the DEP has until July 18 to file a response, and the Baykeeper will have two weeks to reply before the appellate panel decides the case or sets a date for oral arguments.

The stated goal of the NY/NJ Baykeeper is to protect, preserve and restore the ecological integrity and productivity of the Hudson-Raritan Estuary. According to its website, the Baykeeper stops polluters, champions public access, influences land use decisions, and restores habitat.

The Hackensack Riverkeeper works to protect and defend the environmental quality of the ecosystem of the estuary, river and watershed and the quality of life for the people and other creatures that inhabit the Hackensack River watershed.

For more information about these two organizations, visit www.nynjbaykeeper.org or www.hackensackriverkeeper.org.

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