A Magistrate Judge and EPA continue to strongly disagree about the application of the Safe Drinking Water Act to septic systems and cesspools in New York State Parks. The Magistrate Judge has concluded, both before and after the Supreme Court's Maui decision, that Peconic Baykeeper is entitled to a trial of its 2013 allegations that the operation of these septic systems and cesspools violates the Clean Water Act and the Resource Conservation and Recovery Act. However the Magistrate Judge concluded the Safe Drinking Water Act allegations should not be tried because the NGO has not offered evidence that any current or potential public water supplies have been affected.
EPA says that al all aquifers are protected by the SDWA unless and until EPA, and only EPA, determines that they should be exempted, whether or not they are a current or potential future public water supply.
I think the Magistrate Judge is going to end up with the short end of this stick.
But why is EPA only an "interested party" in this case which goes back to the George W. Bush Administration? As the law requires, EPA received notice of Peconic Baykeeper's intention to sue the State of New York so that it could decide whether it wanted to take the case off the NGO's hands. EPA apparently passed but now insists that the legal principles at issue are critically important to EPA.
Could it be that EPA's view depends on who is in charge?
And are those of you who embraced Supreme Court Justice Breyer's suggestion that the reach of the Clean Water Act be determined in courthouses around the country really satisfied there isn't a better way to determine and enforce our environmental laws than decade long (and counting) litigations?
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