ACJ AWAITS CLOSURE. WHAT’S NEXT?

Amended Consent Judgment (ACJ), initially entered in 1998 between Onondaga County, NYS DEC and ASLF, has governed Onondaga County’s water quality improvement obligations for over three decades to tackle the pollution in Onondaga Lake and its tributaries caused by the sewage discharged from the Metropolitan Wastewater Treatment Plant (Metro) and its Combined Sewer System owned and operated by the Onondaga County Department of Water Environment Protection (WEP). ACJ represents a pioneer case in the nation, which, in its latest stipulation in 2009, mandates the inclusion of green infrastructure as complementary technologies to the gray infrastructure, such as treatment and storage facilities, to manage Combined Sewer Overflows (CSOs). This Gray-and-Green approach helped Onondaga County to achieve a systemwide CSO capture of 97.9% on an annual average basis, meeting and exceeding the ACJ requirement of 95% for CSO reduction by December 31, 2018. The capture rate has been recognized by DEC and ASLF as the last ACJ Annual Report was approved by DEC in 2019.

Per Environmental Protection Agency (EPA)’s CSO Control Policy (1994), following the abatement programs, a CSO Long Term Control Plan (LTCP) should be developed and implemented to make sure the continued compliance with the applicable water quality standards (WQS). However, the water quality monitoring data collected by Onondaga County indicate that even after achieving 97.9% CSO capture, there are still water quality standard violations for bacteria in Onondaga Creek, Harbor Brook and Ley Creek, both before and after CSO occurrence.

The WQS for a waterbody include the designated uses of the water and the associated water quality criteria that protect and support such designated uses. For instance, by the state fresh surface water classification, all three tributaries mentioned above are mostly C water near their mouths to the lake, with some B in Onondaga Creek; the water quality criteria for bacteria for these waters should allow safe use by primary and secondary contact recreational activities, meaning swimming, boating and fishing, etc. But the accessibility, channelization and other sources of pollution from the urban and suburban landscape render such activities simply unrealistic in these waterways even in any foreseeable future. So, are the current water quality standards still applicable?

This question has been recognized and negotiated by the ACJ parties, and was reflected in the latest administrative consent order entered earlier this year between DEC and Onondaga County. The order lays out a 5-year interim post-ACJ framework to guide continued restoration efforts before an LTCP is fully developed and in place. The state order reaffirms that the County’s CSO discharges still cause or contribute to violations of WQS in the receiving tributaries, and requires the County to develop and implement interim CSO corrective measures, including building more green infrastructure projects, till an approved LTCP is ready for implementation. More importantly, the state order allows the County to perform a Use Attainability Analysis (UAA) for Onondaga Creek, Harbor Brook and Ley Creek, starting a procedure to review and potentially revise the WQS for these CSO receiving waterways.

EPA regulations prohibit removing an existing or actual use from the designated uses for a water body, but for a designated use that has not been attained, it may be removed under limited circumstances, and associated WQS consequently changed. A key component of this procedure is a UAA that needs to demonstrate that the current designated use(s) cannot be achieved using the best available technologies and/or in cost-effective and reasonable way without causing substantial environmental damage or widespread social and economic impacts. The review and revision for WQS require active public involvement in the procedure, to engage citizens, municipalities, industries, environmentalists, universities and other entities in collecting and evaluating information for the decision-making process. More information about the procedure can be found in this Water Quality Handbook.

While DEC, ASLF and Onondaga County had agreed to close the ACJ, COVID delayed its closure. Now that the state consent order has been entered and ready for implementation, judicial closure of this landmark case is on the horizon. The CSO program will enter a new era when the County will be developing a final LTCP and conducting a UAA in the next four and half years, while implementing interim CSO measures. ASLF will continue its involvement in the post-ACJ course of action, assisting the County in public engagement process and implementing green infrastructure through our OMG! program. More information about ACJ, UAA, LTCP and the upcoming public engagement process will be available at www.onondagalake.org.