Environmental Groups to Sue EPA Over Unsafe Waters in New York City

April 27, 2017

Lax Oversight Allows City and State to Evade Health Protections, Continue Massive Sewer Overflows

NEW YORK, NY — A coalition of New York City and regional environmental organizations today initiated legal action against the U.S. Environmental Protection Agency (EPA) for failing to protect the health of people who swim, boat and fish in New York City waters – or who would if the waters were not contaminated with untreated sewage scores of times each year.

EPA and New York State are responsible for ensuring that New York City cleans up this pollution to protect public health. But the State relies on dangerously outdated water quality standards that do not protect swimmers, kayakers, educators and students, recreational fisherman, and others who come into contact with the water. Bacterial pollution from untreated sewage can lead to intestinal illnesses, rashes, and infections, and excess nitrogen fuels algae blooms and low-oxygen dead zones in Long Island Sound.

Since 1986, EPA has known – and has informed New York State – that the state’s standards must be updated to match federal health standards. EPA specifically told New York that it “expect[s]” the State “to adopt [the federal standards]…to be both scientifically defensible and fully protective of…recreation[al] use.”

But the State has not updated its standards. And EPA has not stepped in to protect the public, as the Clean Water Act requires.

The groups will ask a federal court to order EPA to adopt modern standards that protect New Yorkers’ health, unless the state promptly does so on its own. The legal filing can be found here.

“EPA, the city, and the state have all failed New Yorkers,” said Larry Levine, a senior attorney with the Natural Resources Defense Council’s water program. “The Clean Water Act was created to protect our right to water that won’t make us sick when we drink or play in it. But it doesn’t do anyone any good if the EPA isn’t overseeing and enforcing those rules. More than 8 million New Yorkers are relying on the EPA to protect them.”

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 of the city, polluted runoff mixes in pipes with sewage from toilets, sinks, showers, drains, and commercial and industrial operations. 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.

“We rely on the EPA to protect public health, ensure a healthy aquatic environment, and, most importantly, hold states accountable to the Clean Water Act,” said Sean Dixon, staff attorney at Riverkeeper. “By failing to act, the EPA is giving New York a free pass on applying the best available science and is putting at risk the millions of New Yorkers living around these most polluted waterways.”

Based on New York’s outdated water quality standards, the State last month approved sewage overflow plans 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.

“It is time to bring our water quality standards into the modern era and make sure that states are using the best standards that protect human health,” said Debbie Mans, Executive Director of NY/NJ Baykeeper.

The state-approved plans allow the city to continue dumping billions of gallons of raw sewage for decades into the future.

“How can the EPA, the state and the city allow continued dumping of sewage teaming with bacteria into waters where New Yorkers fish, swim and boat?” asked Roger Reynolds, legal director for Save the Sound. “These water quality standards should be stopping pollution from raw sewage overflows – instead, they’ll institutionalize and allow it to continue for years to come. EPA and New York must take immediate action to fulfill their missions and to rectify this public health hazard.”

The lawsuit specifically concerns standards that the state proposed for waters designated as “Class SD” and “Class I” – including the East River, Arthur Kill, Bronx River, Coney Island Creek, Flushing Creek, Harlem River, the Hudson River (in New York City), Lower New York Bay, Raritan Bay, Westchester Creek, Gowanus Canal, Newtown Creek, Kill Van Kull, Newark Bay, Alley Creek, and several tributaries to these waterways (a complete list is included here). However, New York applies the same outdated standards to waters all around the state. EPA has stressed the importance of updating these standards statewide.

Joining together for this legal action are Riverkeeper, Natural Resources Defense Council, Save the Sound (the bi-state initiative 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.

“EPA knows that New York State is using an invalid standard to monitor and control pollution in its coastal waterways,” said Marc Yaggi, Executive Director of Waterkeeper Alliance. “Ensuring waters are safe for recreation has been a core requirement of the Clean Water Act since 1972. It is indefensible that, in 2017, EPA is looking the other way as New York refuses to adopt valid standards necessary to protect its citizens from dangerous pathogens that can cause severe illness.”

“Jamaica Bay is a tremendous natural resource and great progress has been made in restoring the habitat and water quality of the bay, however one continued area of concern is the effects of heavy rain events that cause sewage overflow at the treatment plants that surround the bay,” said Dan Mundy, president of Jamaica Bay Ecowatchers. “At present time about 40 percent of the rain events in any given year produce this type of overflow discharge of raw sewage into the waters of Jamaica Bay. With the increased recreational use that we are experiencing on and in the waters of Jamaica Bay it is past time that the NYSDEC cease using their outdated water quality goals, which don’t meet federal public health standards, and which fail to protect people who come in contact with the water. Therefore we are calling on the EPA to act and to force the NYSDEC to upgrade their standards, to match EPA’s standards which will ensure that those who recreate in the waters of Jamaica Bay are protected and safe.”

“The public obviously cares about and wants a better understanding of water quality issues. There’s no good reason for our regulators to continue to use confusing and outdated categories and standards. The EPA can and should take a leadership role in this,” said Rob Buchanan, of the NYC Water Trail Association’s steering committee.

Today’s formal filing is a “notice of intent to sue” under the Clean Water Act. With the filing of this notice, the community and environmental organizations must wait 60 days before filing actual litigation documents with a court.

Attachment: Map of relevant New York City waterways.