A federal court in New Jersey has dismissed a lawsuit seeking to force the U.S. Environmental Protection Agency (EPA) to intervene in the New Jersey Department of Environmental Protection’s (NJDEP) regulation of stormwater runoff into the Delaware River. Del. Riverkeeper Network v. EPA, No. 11-4302 (D.N.J. 4/30/12) (unpublished).  

Plaintiffs alleged that NJDEP has inadequately regulated municipal storm runoff and accused EPA of violating the Clean Water Act by failing to intervene. They contended that NJDEP allowed cities and towns to self-regulate their stormwater, to the point at which several of those municipalities have allowed motor oil, pesticides and other chemicals to flow into rivers and watersheds along with stormwater runoff in violation of the CW A. They further claimed that EPA has a nondiscretionary duty to intervene, and they sought a court order requiring the agency to do so.  

The court held that it lacks jurisdiction, noting that the CW A allows EPA to intervene “whenever . . . the administrator finds” action is needed. According to the court, by this language, Congress intended to leave it up to EPA to make an initial determination that would require it to intervene. Finding EPA intervention under the CW A discretionary, the court dismissed the complaint.