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Earthrise Clients to Petition New Jersey Supreme Court on CSOs

March 28, 2013

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Earthrise clients, New York/New Jersey Baykeeper and Hackensack Riverkeeper (“Waterkeepers”), will petition the New Jersey Supreme Court for review of an adverse decision by the Appellate Court regarding their challenge to New Jersey’s General Permit for Combined Sewer Overflows (CSOs). New Jersey is the only state in the country that regulates CSOs via a general Clean Water Act permit, but, more importantly, the permit itself does not comply with the Clean Water Act nor the National CSO Policy and has been expired for almost four years.

The Appellate Court did not address the merits of Waterkeepers’ challenges to the legality of the General CSO Permit; rather it decided the case on procedural grounds, which we believe to be in error. Accordingly, we filed a notice of petition to the NJ Supreme Court asking it to overturn the Court of Appeals’ decision.

The appellate decision is the bad news. The good news is, as a result of this litigation, which began in 2010, the New Jersey Department of Environmental Protection (DEP) has now committed to issuing, on a specific timeline, individual Clean Water Act permits to CSO dischargers, something EPA had been trying to get DEP to do for years. Individual CWA permits will allow for better and more tailored regulatory oversight of CSO discharges, and provide citizens with more effective enforcement options. Although the Appellate Court did not order DEP to abide by its own self-imposed timeline for issuing individual CWA permits, it did issue this warning at the end of its opinion: “We trust that DEP will comply with the public representations it has made, both to appellants and this Court.”

Unfortunately, DEP has made promises before that it has not kept, which is why Waterkeepers are seeking review from the New Jersey Supreme Court to declare the General CSO permit illegal and to hold DEP to its self-imposed timeline for issuing individual permits.
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