DEP’s Systematic Failure to Enforce Stormwater Controls Leads to Breakdown of Entire Clean Water Program

Will ENGO’s pursue a CWEA II Campaign?

[Update: 6/22/12 – File this under “We told you so”: Toll Brothers violate Clean Water Act on 43 N.J. sites – end].

In Part Three of our Clean Water Series, I wrote yesterday about how and why the 1990 NJ Clean Water Enforcement Act (CWEA) eliminated DEP’s enforcement discretion and imposed mandatory facility inspection and permit effluent limit violation penalty requirements for certain “point source” dischargers.

The Legislature stripped DEP discretion as a result of a systemic failure to enforce clean water pollution control permit requirements.

In Part IV, today we look briefly at DEP’s implementation of the Clean Water Act’s Municipal Stormwater Permit Program.

In our view, the DEP storm water permit program illustrates the very same systemic DEP failure to enforce that convinced the Legislature in 1990 to extinguish DEP’s enforcement discretion in the CWEA.

Ironically, instead of being embarrassed by their failure, the Christie DEP actually touts their performance and accomplishments. In a 2010 Status Report, DEP stated:

This Summary Report shows an exceptional level of compliance that could only be reached by dedication and commitment at the local level. Municipal engineers, public works, and maintenance staff should be recognized for the hours spent reviewing plans, sweeping streets, cleaning storm drains, and educating the public.

The Christie DEP puts on the same rose colored glasses and spin in showcasing the Stormwater Permit Program as a model for the Governor’s Barnegat Bay plan. In a similar cookie cutter boilerplate 2010 Report, using identical language, DEP stated:

The Department has summarized the data received from 2004 through December 31, 2009 for the above permittees in the Barnegat Bay Watershed in this Summary Report which shows an exceptional level of compliance. This level of compliance demonstrates the dedication and commitment by the local municipal engineers, public works, and maintenance staff.

Wow!

So, let’s contrast DEP’s self congratulatory findings with those of the Delaware Riverkeeper.

In a May 2010 Report that evaluated DEP’s stormwater permit program, Riverkeeper found:

The Delaware Riverkeeper Network has produced this Report to expose the inadequacy of the current municipal stormwater review system. The Report brings to light numerous shortcomings of the Municipal Stormwater General Permit in its capacity of assuring proper implementation of the program as it is currently implemented and demonstrates that the program is ineffectual in its mission to protect our water resources and the communities they serve. Given the current sensitivity to environmental justice issues, these failings and the effects they have on urban and downstream communities are all the more disquieting. The intent of this Report is to identify and engender the necessary changes, and to secure the necessary enforcement of the Municipal Stormwater Regulations Program and Stormwater Management Rules in the municipal review process by the New Jersey Department of Environmental Protection (NJDEP).

The Delaware Riverkeeper Network engaged with a number of stormwater experts to review a variety of projects approved in the Township of Hamilton, Mercer County, New Jersey. Each project was examined for completeness, accuracy and whether the stormwater system honored the intent of New Jersey’s Stormwater Management Rules. The results of this review are sobering. The twelve projects presented in this report were reviewed for compliance using a standard 100-point scale grading system to measure compliance with the Rules. Grades ranged from 25 to 79 percent, with an average compliance grade of 42 percent. With regard to the use of nonstructural stormwater management strategies — a primary goal of the program — the average compliance grade was a dismal 13 percent.

While this report focused on inadequate reviews conducted by Hamilton Township land use boards, the Delaware Riverkeeper Network believes, based on similar reviews and experience, that non-compliance is not at all limited to this single municipality. There is ample evidence throughout the State, in other counties and other towns, that the Municipal Stormwater Regulations Program review process is not working and implementation of the Stormwater Rules is lax, at best.

On the basis of those findings, Riverkeeper appealed to the US EPA to intervene.

Under the Clean Water Act, EPA delegates day to day implementation of EPA approved programs to the States, but EPA maintains oversight on NJ’s state program. If there is “widespread” failure and non-compliance, EPA can revoke the State’s program and directly assume implementation.

The Obama EPA refused to intervene.

So, in December 2010, in an attempt to force EPA to act, Riverkeeper sued EPA under the Citizen suit provisions of the Clean Water Act.

In an April 30, 2012 decision, the US District Court rejected Riverkeeper lawsuit on the basis that EPA had enforcement discretion:

It is not merely the results of these decisions that guide the Court, but the reasoning. One of the most important legal principles relied upon is that courts must presume that the enforcement duties of the executive branch are discretionary. This presumption exists because enforcement duties implicate important, and often technical, resource allocation and policy choices. Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); Harmon Cove Condominium Assoc. v. Marsh, 815 F.2d 949, 951-952 (3d Cir. N.J. 1987). The Supreme Court held in Heckler v. Chaney that the presumption “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” 470 U.S. at 833. The Third Circuit held that it was not rebutted in the case interpreting § 1344(s)(1), regarding enforcement of Army Corps permits under the Clean Water Act. “The statute imposes no duty on the Secretary to make a finding of violation, because it contains no guidelines for the Secretary to follow in choosing to initiate enforcement activity.” Harmon Cove, 815 F.2d at 953. The very similar language, i.e., lack of guidance, in the provision before this Court compels the same result. Plaintiffs claim that the language about “widespread” violations in § 1319(a)(2) constitutes sufficient guidance to distinguish it from § 1319(a)(3), and rebuts the presumption of enforcement discretion. However, this language merely identifies the type of violations targeted by the provision, it does not actually guide the agency “in exercising its enforcement powers.” Heckler, 470 U.S. at 833.

But importantly, the Court did not reject Riverkeeper’s factual findings about DEP’s failures:

The Court does not doubt the gravity of Plaintiffs’ allegation that New Jersey’s failure to enforce NPDES permits “undermines the entire structure of the CWA”; it is simply unable to find that the magnitude of the alleged violation supports the Plaintiffs’ legal conclusion.

So, here we are, over 20 years later, right back to the fundamental issue of abuse of enforcement discretion that prompted the 1990 CWEA.

DEP has failed to act.

EPA has failed to act.

The federal courts have failed to compel EPA to act.

As a result, water quality continues to decline.

It looks like the only remedy is a Clean Water Enforcement Act II – for stormwater, CSO and non-point source pollution.

The ball is in the Legislature’s court.

Will ENGO’s pursue a CWEA II campaign?

There seems to be some positive movement in that direction.

NY/NJ Baykeeper is working on proposed legislation (S 831 [1R] – Smith/Beck) that would address Combined Sewer Overflows (CSO’s)- a long ignored issue we next discuss in Part V of the series.

DEP’s Systematic Failure to Enforce Stormwater Controls Leads to Breakdown of Entire Clean Water Program

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