2012-10-04 / Front Page

Baykeeper legal challenge to DEP can proceed

Appellate court denies state’s request for more time for sewage outfall permit rules
Staff Writer

KEYPORT — A legal challenge to the N.J. Department of Environmental Protection (DEP) brought by the NY/NJ Baykeeper and the Hackensack Riverkeeper can proceed, according to a state appellate court ruling.

On Sept. 27 a state appellate judge denied the DEP’s request for more time and allowed the Baykeeper to continue its suit seeking to revoke the agency’s Combined Sewer Outfall (CSO) general permit.

“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,” Debbie Mans, executive director of the Baykeeper, said on Oct. 1.

“We are delighted that the Appellate Court allowed our case to move forward and we will get our day in court.”

According to Chris Len, staff attorney for the Keyport-based Baykeeper as well as the Riverkeeper, the environmental groups asked the appellate court to revoke the CSO general permit, which they allege allows billions of gallons of sewage to flow into New Jersey waters in violation of the Clean Water Act endangering human health.

“They have to revoke it if it is against the law or it is a threat to human health and the environment. For a number of reasons we said that it did both of those things,” Len said in an interview on Oct. 1.

The legal action is an appeal of the DEP’s September 2011 decision denying the Baykeeper’s April 2011 petition to have the CSO general permit revoked.

In a brief filed with the Appellate Division in May, the Baykeeper cited its stalled oyster research and restoration program.

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

“We are pointing that out to see how much hypocrisy there is in this situation where the DEP shut down a project whose sole purpose is to restore and improve the ecosystem of the NY/NJ harbor because of pollution that they permit,” Len said.

In response to the Baykeeper’s suit, the DEP requested that the Appellate Division remand the matter back to the agency so that it could develop new permits over the next several years.

“While this problem has been with us for many decades, this administration has been taking a very proactive stance in working toward solutions,” Lawrence Hajna, a DEP spokesman, said in an interview on Sept. 28.

He explained that the agency is moving forward with new individual permits for all CSO outfalls, which will require long-term control plans and will achieve environmental goals.

The agency will meet with the affected municipalities to discuss the new approach and how the permits will be changed, he said.

“We are hoping to be issuing draft permits in a staged manner,” he said. “It could be by 2014 that we could have final permits in place.”

However, Len said that the DEP said it would issue a new general permit with revisions, but the agency has failed to do so and is in violation of state law.

In its opposition to the remand motion, Len said Baykeeper and Riverkeeper laid out an extensive history of missed deadlines and excuses from the state agency dating back to the Clean Water Act’s passage 40 years ago.

The Clean Water Act requires permits to protect water quality standards to keep the water quality in the rivers safe enough for different uses such as swimming and boating, Len said.

However, 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, Len said.

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.

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

“That sewage that goes into those waters makes it unsafe … for people to swim or boat. They cause extensive environmental damage. It allows discharges which threaten the health of N.J. residents and the environment,” Len said.

“I look forward to what the DEP has to say [in court] about its permit because so far it hasn’t bothered to defend it. It has tried to avoid judgment on it.”

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