Clare Cragan

November 26, 2009

In mid November, New York City suffered from heavy rain and flooding resulting from a tropical storm further south on the east coast. This was not an unusual occurrence for New York—storms regularly hit the city throughout most of the year. Unfortunately, heavy rains in a city covered largely by impervious surfaces pushes the city's municipal sewer system to its limits, causing 27 billion gallons of raw sewage to pollute the surrounding rivers and bay every year.

As is the case in many cities across the country, heavy rains led to major sewage overflow throughout New York City's five boroughs. In Brooklyn, a "swimming pool's worth" per second of sewage and wastewater flooded into the Owl Head Treatment Plant, one of New York City's 14 sewage treatment plants. After reaching capacity, the plant had to shut its gates, which meant untreated sewage flowed into the Upper New York Bay and Gowanus Canal—and this is just from one plant. This means excess sewage contaminated the East River, Hudson River and New York Bay on into the Atlantic Ocean from the city's 490 overflow pipes throughout the boroughs. Contamination of this type results from what is called combined sewage overflow (CSO), or "urban wet weather" discharge, and it causes myriad environmental problems ranging from beach closures to fish kills.

The Clean Water Act regulates sewage overflow the results from single incidents following heavy precipitation. Municipalities treat CSOs by creating infrastructure solely for occasions such as these. The Clean Water Act's original drafters contemplated the contamination problem from CSOs in the 1972 legislation, setting goals for large urban areas to update sewage treatment facilities to ensure they can handle such a situation as in New York City earlier this month. In fact, throughout the 1970's and 1980's Congress gave states and municipalities over $60 million to update sewage infrastructure. Despite this investment, CSO management has not kept up with the growth and the associated development on green spaces (that would otherwise absorb runoff) in urban areas.

Of the 25,000 regulated CSO districts, 9,400 were out of compliance in the last three years alone. Further, only one in every five violations did the EPA or state regulatory agency fine the municipality. Some environmental groups involved in protecting the Hudson River suggest that enforcing municipalities is politically untenable for the EPA, yet the problem only perpetuates without increased enforcement. On the other hand, operators working with limited funding state that fines will only divert funds that could be going towards improving water quality.

Both state and federal environmental agencies recognize the immense environmental threat CSOs present, yet exorbitant treatment costs prohibit them from reaching their regulatory goals. New York City alone has spent $35 billion over the past three decades on water quality in and around the city, yet still sewage overflow persists. In 2000, Congress amended the Clean Water Act to address concerns with CSOs, which included making sewage treatment plant operators subject to third-party lawsuits, adding a consistency requirement between the CSO policy and enforcement activities, and requiring agencies to submit progress and human health impact reports to Congress.

New York City, and cities around the nation, will continue to face CSO contamination problems without a significant investment in updated facilities or concerted efforts to create more green space (such as green streets, street trees, green roofs, and rain barrels). The EPA's new administration has yet to promulgate new CSO regulations, but in a statement by Lisa Jackson, EPA Administrator, she committed to overhauling Clean Water Act enforcement, which may include issuing fines more vigilantly for non-compliance municipalities. Without further action, sewage treatment operators must keep an eye on the weather report in hopes of "blue skies; sunny; no chance of rain."

Sources:

Charles Duhigg, Sewers at Capacity, Pollution Poisons Waterways, N.Y. Times, Nov. 22, 2009.

National Weather Service, National Oceanic & Atmospheric Administration (Nov. 10, 2009), http://forecast.weather.gov/MapClick.php?CityName=New+York&state=NY&site=OKX&textField1=40.7198&textField2=-73.993.

EPA Administered Permit Programs: The National Pollutant Discharge Elimination System, 40 C.F.R. § 122 (2009).

National Pollutant Discharge Elimination System (NPDES) Permit Requirements for Peak Wet Weather Discharge from Publicly Owned Treatment Works Treatment Plants Serving Separate Sanitary Sewer Collection Systems, 70 Fed. Reg. 245 (December 22, 2005).

U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System, Combined Sewage Overflow Overview (2009), http://cfpub.epa.gov/npdes/home.cfm?program_id=5.

Riverkeeper, Sewage & Combined Sewage Overflow (2009), http://www.riverkeeper.org/campaigns/stop-polluters/cso/.