Advocacy & Litigation Priorities 2011

1. Advocacy & Litigation Priorities 2011 Confidential

2. Water Quality • Harbor Pathogen and Nutrient TMDLs (CL) • EPA, in conjunction with NJ and NY, sets a total maximum daily load for all inputs of pollutant (e.g., nitrogen, carbon, pathogens) into a waterbody • Combined Sewer Systems (CSSs) and Combined Sewer Overflows (CSOs) are the largest sources of pathogens and second largest source of chemical oxygen demand • Advocacy Position: Adoption of monthly standard rather than weaker seasonal standard • Status: Meeting between EPA and states in March 2011, followed by a stakeholder meeting

3. Water Quality (cont.) • Next Steps: • Participation in drafting and commenting on proposed TMDLs • Document use of waterbodies

4. Water Quality (cont.) • New Jersey’s Combined Sewer System Permit (CL) • Current permit not in compliance with CWA standards and expired in July 2009 with no action on proposed replacement permit • Advocacy Position: Analysis has shown that it is difficult to enforce against individual permit holders. Supported by outside counsel, we are developing legal strategy to compel NJDEP to reissue the CSS permit and subject themselves to litigation. Consideration of doing this in conjunction with support for positive CSO remediation. • Next Steps: Work with PEAC on NJDEP petition (Spring), with potential litigation (Fall/Winter)

5. Water Quality (cont.) • Continuation of Jamaica Bay Pumpout Boat Program and expansion of Raritan Bayshore Pumpout Boat Program (AT) • Public Education Campaign (ER) • Public Official Outreach (ER) • Participation in SWIM coalition, focusing on green infrastructure (CL/ER)

6. Public Access • General Education, including release of video, enhancements to website (ER) • NJDEP Rule Proposal (CL/DM) • Pending rule would rollback waterfront access requirements in urban areas (anticipated Spring) • Media campaign in conjunction with partners (ALS, Surfrider, CRAB, Hackensack Riverkeeper, etc.) • Public comment writing campaign

7. Public Access (cont.) • NYC Waterfront Activities (ongoing) (DM/ER) • Participation in Comprehensive Waterfront Plan and implementation and revisions to PlaNYC

8. Contaminated Sites • Passaic River and Newark Bay Superfund Site (DM) • Assisted with the creation of Community Advisory Group (CAG) and currently serving as co-chair • Initial dredging scheduled to begin this Summer • Raritan Bay Slag Superfund Site (GR) • On recently formed CAG • Standard Chlorine (CL) • Standstill agreement as remediation proceeds • Potential for sediment cleanup

9. Regulatory, Legislative & Public Policy • NYC Council Hearings (ongoing) (DM/ER) • Waterfront Enforcement • Dredged Material Management • NJDEP Rule Review/Stakeholder Meetings (ongoing) (DM/CL) • Flood Hazard • Public Access • Freshwater Wetlands • Compliance and Enforcement • Legislative Hearings (all)

10. Patrols (AT) • Baykeeper boat will be launched by Memorial Day • Scheduled to be on the water 2 days/week • Set schedule of patrols of geographic areas • Use by staff for hosting media, supporters, partners and public officials, pollution investigations, restoration work • Coordinated through Amy Testa

11. Strategic Advocacy Partnerships • NJ Audubon Society • Edison Wetlands Association • Raritan Riverkeeper, Hackensack Riverkeeper, Hudson Riverkeeper • Ironbound Community Corporation • ALS, Clean Ocean Action, Surfrider • ORRP Partnership (oysters) • Harbor Coalition (funding for Harbor) • Outside Counsel

12. Current Litigation (CL) • Jamaica Bay Nitrogen Settlement • Will result in significant wastewater treatment plant upgrades, marsh restoration and increased sampling • Status: Final settlement under review by NYC Comptroller’s Office • In re Riverview Development LLC • Baykeeper sued NJDEP over issuance of development permit for one of the last remaining open spaces along the Hudson River waterfront • Status: On remand back to NJDEP for review whether the permit is consistent with the regulations. Expected back in court at end of March.

13. Current Litigation (cont.) • National Lead • Lawsuit against polluter for contamination of sediments in the lower Raritan River • Status: Last May US District Judge dismissed the case indicating that NJDEP was already engaged in effective cleanup of the River. Appellate Court heard arguments on March 8, 2011. • Oyster Permits • Appealed both the de facto revocation of our Keyport permit and the denial of our Shrewsbury River permit • Status: Awaiting response from the State.

14. Current Litigation (cont.) • Challenge on NYSDEC MS4 Permit (Reed Super) • Notice of Intent to Sue issued for NYS Discharge Permit (NRDC, Pace) • Settlement of CWA 316(b) (cooling water intakes) Case (WKA/Reed Super)

15. Contemplated Litigation • Public access implementation in urban areas under current regulatory scheme • Wastewater Discharges, ex: MCUA • Contaminated Sites, ex: Conoco Facility/Arthur Kill

16. Seeking Improvement in 2011 • Relationships with Compliance and Enforcement personnel: NYC Dockmasters, state field personnel, environmental crimes attorneys from USEPA and US Attorney General’s Office • Relationships with public officials, more strategic • Assessment of where we should participating in NY and NYC • Strategic partners, especially in NY • Development of proactive initiatives, more positively focused

17. The Great Unknown • State budget impacts to environmental agencies, including loss of staff • Reacting to rule proposals under Christie Administration