The New Jersey Department of Environmental Protection stayed true to its word, filing a lawsuit against the City of Trenton and Trenton Water Works in mid-June after threatening to do so just weeks earlier.

Attorney General Gurbir Grewal and DEP Commissioner Catherine R. McCabe announced the lawsuit June 15, saying in a release that the state hopes the legal system will compel Trenton to protect the city’s water system.

The release specifically called out Trenton city council for its inability to properly fund measures that would reduce the risk of lead and pathogens in TWW’s drinking water. TWW utility serves more than 200,000 people in Trenton, Ewing and parts of Hamilton, Hopewell Township and Lawrence.

McCabe framed the issue similarly in a May 21 letter to the City of Trenton, saying the city council’s vote in May to reject millions of dollars in bonds for crucial measures will prevent Trenton Water Works from providing safe drinking water to its customers.

The measures defeated by council May 7 would have provided nearly $100 million in funding for three projects: improvements at TWW’s water filtration plant, the replacement of 63,000 outdated water meters and the transition away from Trenton’s open-air reservoir on Pennington Avenue to a new, decentralized water storage system. The reservoir has long been an issue for TWW—it has spent more than a decade out of compliance with a DEP order to cover the tank.

Though a majority of council voted in favor of the funding, the measures fell one vote shy of the required 5-vote supermajority.

“That decision has necessitated today’s action; it is part of a pattern of inaction and outright refusal to marshal the resources necessary to meet the City’s legal obligations to effectively run the water system and protect the public health,” the Attorney General’s office said in a June 15 press release.

DEP and the state Attorney General’s Office took particular offense at TWW’s lack of action regarding the reservoir, saying “because that reservoir is uncovered, it is subject to contamination from the elements and from birds or other animals, which poses a continuing risk of introducing pathogens into the water supply.”

More than a decade ago, the DEP ordered TWW to install a floating cover over the reservoir by 2009. TWW missed several deadlines to comply, and, in 2018, Trenton and DEP entered into an agreement that extended the deadline for cover installation until 2023.

Last year, the water utility unveiled an alternate plan that would move the water supply from the current centralized reservoir to above-ground storage tanks placed in each of the five municipalities it serves. The state, however, says TWW has not formally requested DEP approval for the storage tank project, and alleges that TWW has not indicated how it intends to fund the storage tanks, which will cost tens of millions of dollars to construct. Initial funding for the project was included in the bonds rejected by council May 7.

Trenton Mayor Reed Gusciora disputed DEP’s characterization of the issue, saying the state agency has known for two years that his administration planned to replace the reservoir with storage tanks. The city developed the idea after the federal Department of Homeland Security recommended Trenton no longer rely on a single water source, particularly an uncovered one. But the project could not move forward without support—and funding—from council.

“Their rationale has been, ‘We haven’t covered it in 30 years. Why start now?’” Gusciora said.

The lawsuit also accuses TWW of being delinquent in replacing lead lines throughout its system. DEP claims TWW had agreed in 2018 to have 14% of its lead lines replaced by July 2020. To date, TWW has only replaced slightly more than 2%.

TWW’s lead service line replacement project has suffered from frequent delays, and only started in earnest this January. TWW marked the occasion with a Jan. 9 celebration that featured city officials watching crews dig up a lead line.

Trenton Water Works employees prepare to replace a lead service line Jan. 9, 2020.

TWW said it has replaced 1,000 lead service lines since 2017, with 500 of those having been removed in the last four months. It has promised it will remove 2,600 by the end of this year and an additional 1,700 lead service lines by June 2021.

TWW has been front and center for most of Mayor Reed Gusciora’s term due to its historic struggles before he took office in July 2018. Gusciora, in turn, has spent much of his term focusing on the city’s water utility.

TWW has reduced the number of vacant positions—a chronic problem that contributed to a number of TWW’s issues—with the vacancy rate improving from 45% to 5% in the last two years. In the 26 months between January 2017 and February 2019, TWW received 29 DEP violations. It has received none in the last year.

TWW recently launched a 6-year, $405 million capital improvement plan for its system, a plan that is comprehensive but requires Trenton council’s cooperation in order to get funding.

Gusciora said he wants the same thing as DEP: to ensure TWW’s aging infrastructure receives the upgrades it needs to deliver high quality drinking water.

“We’re in a peculiar situation, where I somewhat agree with DEP,” Gusciora said. “The time is now and not sometime in the future.”

However, Gusicora said the city and DEP might have different ideas on how to arrive at the solution, and he promised to fight for the city’s interests. It is within DEP’s powers to take control of the utility or appoint someone outside the city to manage it. This most likely would be an unwelcome development within the capital city considering the prospect of selling and privatizing the water utility has long been unpopular with Trenton voters.

The state acknowledged Gusciora’s progress, but said it ultimately will do what it must to ensure TWW provides safe drinking water to its customers.

“DEP’s singular goal is to ensure safe and reliable drinking water for the people served by Trenton Water Works,” McCabe said in a June 15 statement. “DEP recognizes that Mayor Gusciora has made progress in improving TWW and protecting public health, and recently proposed plans that would enable the system to meet its Safe Drinking Water Act obligations.

“Unfortunately, in light of the Trenton City Council’s recent refusal to adequately fund drinking water system improvements, it has become all the more clear that TWW will not meet its obligations under the Safe Drinking Water Act and DEP’s orders. DEP has been left no choice but to take legal action, and we have confidence that Attorney General Grewal and his team will help us bring swift relief to the people of Trenton and the communities who rely on TWW for their drinking water.”