Lax Oversight Allows City and State to Evade Health Protections, Continue Sewer Overflows of 20 Billion Gallons/Year
A coalition of nine New York City, regional, and national environmental organizations, represented by the Pace Environmental Litigation Clinic, filed suit in federal court today against the U.S. Environmental Protection Agency (EPA). The complaint alleges that EPA is failing to protect the health of people who swim, boat, and fish in New York City waters by not forcing New York State to update its decades-old water quality standards.
EPA and New York State are responsible for ensuring that New York City fixes the untreated sewage overflows that contaminate the City’s waters scores of times each year. But the State still relies on dangerously outdated water quality standards that do not protect those who come into contact with the water from bacteria, viruses, and other pathogens that cause intestinal illnesses, rashes and infections. The pollution also has ecological impacts, as excess nitrogen in sewage fuels algae blooms and low-oxygen dead zones in Long Island Sound.
Since 1986, EPA has known that New York State’s standards must be updated to match federal health standards, and has formally notified the state. But the State has not updated its standards, and EPA has not stepped in to protect the public as the Clean Water Act requires.
Joining in this legal action are Riverkeeper, Natural Resources Defense Council, Save the Sound (a bi-state program of Connecticut Fund for the Environment), Waterkeeper Alliance, NY/NJ Baykeeper, NYC Water Trail Association, Jamaica Bay Ecowatchers, Bronx Center for Environmental Quality and the Newtown Creek Alliance.
The groups are asking a federal court to order EPA to adopt modern standards that protect New Yorkers’ health, unless the state promptly does so on its own.
“It’s the EPA’s job to protect people and ensure we all have access to water that won’t make us sick when we drink or play in it,” said Larry Levine, a senior attorney with the Natural Resources Defense Council’s water program. “More than 8 million New Yorkers are relying on the EPA to protect them. But the agency isn’t doing anyone any good if it won’t enforce the rules.”
Based on New York’s outdated water quality standards, the State approved sewage overflow plans in March for portions of Queens, the Bronx and Brooklyn. The approved plans cover overflows to the Bronx River and Hutchinson River in the Bronx; Gowanus Canal in Brooklyn; and Flushing Bay, Flushing Creek, and Alley Creek in Queens.
The state-approved plans allow the city to continue dumping billions of gallons of raw sewage for decades into the future. Plans for the rest of the city are now under development, based on the same outdated standards.
When it rains in New York City, waste from streets, sidewalks, roofs, yards and parking lots is washed into the sewers. In about one-third of the city, this heavily polluted water is routed directly into local waterways. In the remaining two-thirds, polluted runoff mixes in pipes with sewage from homes, businesses, and industry. When this mix of sewage and runoff exceed the capacity of the system, more than 20 billion gallons per year bypass the city’s sewage treatment plants and raw sewage flows untreated into the water in all five boroughs.
“Bacteria and other pathogens introduced into New York’s waterways from sewer overflows and contaminated runoff make thousands of New Yorkers sick every year,” explained Daniel E. Estrin, General Counsel and Advocacy Director at Waterkeeper Alliance. “Children, the elderly, and pregnant women are particularly vulnerable to these illnesses. Despite this human suffering, the federal EPA continues to allow New York State to utilize antiquated and inaccurate tests to determine whether waterways are safe for swimming in gross violation of the Clean Water Act. The Act requires EPA to protect public health and the environment, and we intend through this lawsuit to force EPA and New York to do just that.”
“The situation is critical. New York proposed a doubling down on obsolete water quality standards that fail to protect the public when they come into contact with the water,” said Riverkeeper Staff Attorney Sean Dixon. “By failing to act, the EPA is putting at risk the millions of New Yorkers living around these most polluted waterways. From the Harlem River to Staten Island, Jamaica Bay to Flushing Creek, the people of New York deserve an EPA that acts in the best interests of our communities and our shared waterways.”
The lawsuit specifically concerns standards that the state proposed for waters designated as “Class SD” and “Class I”—including the Hudson River (in New York City), East River, Bronx River, Harlem River, Westchester Creek, Coney Island Creek, Flushing Bay and Creek, Alley Creek, Upper and Lower New York Bay, Raritan Bay, Gowanus Canal, Newtown Creek, Arthur Kill, Kill Van Kull, Newark Bay, and several tributaries to these and other waterways (including Jamaica Bay). A complete list is included here. However, New York applies the same outdated standards to waters all around the state, and EPA has stressed the importance of updating the standards statewide.
“EPA has already informed New York that its standards are out of date and not scientifically defensible, yet it has not yet required New York to adopt appropriate standards or promulgated those standards itself, as the Clean Water Act requires,” said Todd Ommen of the Pace Environmental Litigation Clinic.
The coalition of organizations issued a 60-day Notice of Intent to Sue to the EPA on April 27, 2017. That legal filing can be found here. EPA did not respond to that letter.
“EPA’s failure to act has left us no option but to file this lawsuit if New York City waters are to meet basic health standards,” said Save the Sound’s Legal Director, Roger Reynolds. “New Yorkers should be free to enjoy their local waters without fear of illness, rash, or infection.”
Image: The CSO warning sign at the 79th Street Boat Basin [Image Credit: Kelly Slivka]