Save the Sound, Riverkeeper, et. al. v. Regan

Location: New York City Waters including the East River | Status: Active

The Issue: This is a case that addresses the impact of billions of gallons of raw sewage that foul New York City’s waters and make it unsafe for recreation. Over 50 times a year, when New York City receives as little as one-tenth of an inch of rain, its outdated sewer systems are inundated with storm water and dump billions of gallons of untreated sewage into its waterways from over 400 locations along the shorelines of all five boroughs, including the East River portions of Long Island Sound in the Bronx and Queens. Raw sewage and polluted runoff in the water contain bacteria and other pathogens that cause gastroenteritis; skin rashes; pink eye; ear, nose and throat problems; respiratory infections; meningitis; and hepatitis. Shockingly, and in light of the frequency with which rain events start the chain reaction above, New York is one of only two states that uses outdated water quality standards that fail to protect health. The approach proposed by New York could lead to the worst of all results: Waters could be reported as safe based on the water quality standards when, in reality, they are not.

EPA has twice found that New York’s proposed 2015 water quality criteria for pathogens in the waters around New York City (the “2015 WQS”) are so weak as to be inconsistent with the Clean Water Act and unprotective of public health. Yet EPA has failed to perform its Clean Water Act obligation to “promptly” prepare and publish appropriate water quality standards for those waters because New York did not adopt compliant water quality standards in response to either of its letters.

The Case: Thus, in 2015, Save the Sound, along with Riverkeeper and NRDC, brought this Federal Court action against the EPA to compel them to publish new water quality standards for NYC waters. The case has been fully briefed and is awaiting decision on summary judgment. In a letter drafted in late 2021, EPA informed the court that they were planning on publishing standards in July 2022 unless NY DEC took action. This was what we were seeking from the lawsuit. When July 2022 came around, NY DEC announced an Advanced Notice of Public Rulemaking (ANPRM) process in which they would (1) publish water quality standards that protected health, and (2) potentially reclassify waters based on the potential to achieve compliance with water quality standards. The agency has promised that for any waters that were reclassified as below swimmable, they would perform a formal Use Attainability Analysis identifying the Highest Attainable Use. If done properly, this would meet the requirements of the Clean Water Act and address the concerns in our suit. The new water quality standards would be published in February 2023, and the new uses would be published by December 2024.   

Because this is what we were seeking in our court case, we have entered a temporary stay in that case and are evaluating whether to agree to a more permanent stay while the ANPRM process proceeds. A report back to the court is due on November 14, 2022.

Latest step: Federal court case is fully brief and temporarily stayed until November 18. Extensive discussions have occurred with EPA, NY DEC, and NYC DEP regarding the ANPRM process.

Next step: By November 14, provide a status report to the court regarding the possibility of staying the matter for a longer period of time pending ANPRM.  Engage in the ANPRM process to achieve strong water quality standards and the highest attainable uses throughout New York City.

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Page last updated: November 22, 2022


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