Matter of Natural Resources Defense Council, Inc. v. New York State Department of Environmental Conservation ( 2015 )

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 48
In the Matter of Natural
Resources Defense Council, Inc.,
et al.,
Appellants,
v.
New York State Department of
Environmental Conservation,
Respondent.
Lawrence M. Levine, for appellants.
Barbara Underwood, for respondent.
Nadia B. Ahmad et al.; Citizens Campaign for the
Environment; East of Hudson Coalition; City of New York et al.,
amici curiae.
READ, J.:
Runoff from rain and snow melt courses over roofs,
roads, driveways and other surfaces, picking up pollutants along
the way. It then passes through municipal storm sewer systems
into rivers and lakes, adding the pollutants accumulated during
its journey to those bodies of water. These municipal storm
sewer systems thus differ from other entities that discharge
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effluents into our State's surface waters (for example,
industrial or commercial facilities and sewage treatment plants)
in three major ways: precipitation is naturally occurring,
intermittent and variable and cannot be stopped; although
municipalities operate sewer systems, stormwater contamination
results from the often unforeseen or unpredictable choices of
individual residents and businesses (for example, to let litter
pile up or to use certain lawn fertilizers), as well as decisions
made long ago about the design of roads, parking lots and
buildings; and because stormwater runoff flows into surface
waters through tens of thousands of individual outfalls, each
locality's contribution to the pollution of a particular river or
lake is difficult to ascertain or allocate through numeric
limitations.
Federal and state law prohibit discharges of stormwater
from New York's municipal separate storm sewer systems in
urbanized areas (referred to as MS4s) without authorization under
a State Pollutant Discharge Elimination System (SPDES) permit.
As an alternative to an individual SPDES permit, municipal
separate storm sewer systems that serve a population under
100,000 (or small MS4s) may seek to discharge stormwater under a
SPDES general permit. The 2010 General Permit -- the subject of
this lawsuit -- requires these municipal systems to develop,
document and implement a Stormwater Management Program (SWMP) in
compliance with detailed specifications developed by the New York
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State Department of Environmental Conservation (DEC or the
Department) to limit the introduction of pollutants into
stormwater to the maximum extent practicable. To obtain initial
coverage (i.e., authorization to discharge) under the terms of
the 2010 General Permit, small MS4s must first submit a complete
and accurate notice of intention (NOI) to DEC.
After the 2010 General Permit took effect on May 1st of
that year,1 the Natural Resources Defense Council, Inc. (NRDC)
and seven other environmental advocacy groups (collectively,
NRDC) brought this hybrid CPLR article 78 proceeding/declaratory
judgment action against DEC to challenge certain aspects of the
2010 General Permit. NRDC claims generally that by allowing
small MS4s to gain coverage under the 2010 General Permit based
upon an NOI reviewed only for completeness and not subject to an
opportunity for a public hearing, DEC has created an
"impermissible self-regulatory system" that fails to force local
governments to reduce the discharge of pollutants to the maximum
1
DEC issued the first General Permit in 2003 for a five-year
period, and in 2008 issued a revised two-year General Permit,
which expired on April 30, 2010. The five-year 2010 General
Permit expired on April 30, 2015. A substantively identical new
two-year General Permit took effect on May 1, 2015 and expires on
April 30, 2017. Almost all the 500 plus small MS4s authorized to
discharge stormwater under the challenged 2010 General Permit
were initially covered by the 2008 (or, before that, the 2003)
General Permit. The 2010 General Permit authorized them to
discharge stormwater on an interim basis for up to 180 days after
May 1, 2010. These small MS4s gained coverage under the 2010
General Permit by submission of their Annual Reports (discussed
later in more detail) due in June 2010; they were not required to
and did not submit NOIs.
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extent practicable -- the statutory standard -- and violates
federal and state law.2 Equating NOIs with applications for
individual SPDES permits, Supreme Court granted partial relief to
NRDC (35 Misc. 3d 652 [Sup Ct Westchester County 2012]). The
Appellate Division, as relevant here, rejected NRDC's federal and
state law challenges to the 2010 General Permit (120 AD3d 1235
[2d Dept 2014]). We granted NRDC leave to appeal (23 NY3d 901
[2014]), and now affirm.
I.
Background
The NPDES and SPDES Programs
The Federal Water Pollution Control Act Amendments of
1972 (Pub L No 92-500, 86 Stat 816-904 [codified as amended at 33
USC §§ 1251-1388 [2014]), popularly known as the Clean Water Act,
ushered in the modern era of water pollution control whereby
discharges of pollutants from "point sources" (i.e., "any
discernible and confined discrete conveyance" [33 USC § 1362
(14)]) into the waters of the United States are prohibited except
as authorized by a National Pollutant Discharge Elimination
2
As previously observed (see n 1, supra), virtually all the
small MS4s in the State achieved coverage under the 2010 General
Permit by virtue of NOIs that they submitted to DEC for initial
coverage under the 2003 or 2008 General Permits, and their 2009
Annual Reports. As a result, the practical effect of a ruling in
favor of NRDC is not self-evident, and threatens to create
considerable confusion; i.e., would these small MS4s be required
to resubmit an NOI, or would they be grandfathered? (see 6 NYCRR
750-1.21 [d] [3]).
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System (NPDES) permit issued by the Administrator of the United
States Environmental Protection Agency (EPA or the Agency).
"Generally speaking," the statute envisaged site-specific
individual NPDES permits that "place[d] limits on the type and
quantity of pollutants that can be released into the Nation's
waters" (South Florida Water Mgmt. Dist. v Miccosukee Tribe of
Indians, 541 U.S. 95, 102 [2004]).
Although the federal government plays the dominant role
in water pollution control under the Clean Water Act, states may
continue their own water pollution control regulations as long as
they are at least as stringent as federal law demands (33 USC §
1370). And importantly, states are allowed to administer the
NPDES permit program for discharges into navigable waters within
their borders, subject to the Administrator's approval (33 USC §
1342 [b]). To attain this approval, a state must demonstrate
that its permit program meets the requirements of the Clean Water
Act and that the state possesses adequate legal authority to
implement it (id.). In 1973, the Legislature amended the
Environmental Conservation Law to create SPDES, New York's
version of NPDES (see L 1973, ch 801 [adding a new title 8 to
article 17 of the Environmental Conservation Law and amending
other provisions of article 17 to bring them into conformity with
new title 8]). EPA approved New York's SPDES program, which is
administered by DEC, in 1975.
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EPA's Stormwater Exemption
In its 1973 regulations implementing the NPDES program,
EPA excluded discharges from a number of classes of point sources
from the permit requirement, including separate storm sewers
containing only storm runoff uncontaminated by any industrial or
commercial activity (see 38 Fed Reg 18000 [July 5, 1973] [40 CFR
former 124.11 (f)]). EPA justified the exclusion as necessary to
conserve its regulatory resources for more significant polluters.
The United States Circuit Court for the District of Columbia
ruled that the Clean Water Act did not give EPA this option, but
interpreted the statute to grant the Agency considerable leeway
in setting permit terms (see Natural Res. Def. Council v Costle,
568 F2d 1369, 1377 (DC Cir 1977]). Noting its "sensitiv[ity] to
EPA's concerns of an intolerable permit load," the D.C. Circuit
suggested that area or general permits would be a permissible and
"well-established" device for coping with the avalanche of NPDES
permit applications anticipated in the wake of its decision (id.
at 1380-1381; see also Natural Res. Def. Council v Train, 396 F
Supp 1393, 1402 [DDC 1975] [EPA has "substantial discretion to
use administrative devices, such as area permits," to make its
burden of permit issuance "manageable"]).
The Water Quality Act
In the Water Quality Act of 1987 (Pub L No 100-4, 101
Stat 7 [codified as amended in scattered sections of 33 USC])
(the Water Quality Act), Congress endorsed permits for municipal
stormwater discharges "issued on a system- or jurisdiction-wide
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basis" (33 USC § 1342 [p] [3] [B] [i]). These permits were
mandated to "include a requirement to effectively prohibit non-
stormwater discharges into the storm sewers," and
"controls to reduce the discharge of pollutants to the
maximum extent practicable, including management
practices, control techniques and system, design and
engineering methods, and such other provisions as the
Administrator or the State determines appropriate for
the control of such pollutants" (id. at § 1342 [p] [3]
[B] [ii], [iii] [emphasis added]).
The Water Quality Act did not define "maximum extent
practicable," but section 1342 (p)'s text and legislative history
indicate that Congress had in mind something other than
conventional end-of-pipe control techniques and numeric effluent
limits (see 132 Cong Rec 32, 381 [1986] [remarks of Sen.
Stafford, then Chairman of the Senate Environment and Public
Works Committee] ["These permits will not necessarily be like
industrial discharge permits. Often, an end-of-pipe technology
is not appropriate for this type of discharge"]; see also
Defenders of Wildlife v Browner, 191 F3d 1159, 1164-1165
[recognizing that Congress "chose not to include" provisions
(like effluent limitations under 33 USC § 1311) for municipal
storm-sewer discharges], amended on denial of rehrg, 197 F3d 1035
[9th Cir 1999] [emphasis added]).
The Water Quality Act established a timetable for EPA
to issue NPDES permitting regulations and for EPA and states to
issue permits for certain categories of stormwater discharges,
principally discharges associated with industrial activity and
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discharges from large municipal separate stormwater sewer systems
(those systems serving a population of 100,000 or more) (see 33
USC § 1342 [p] [2], [4]). But for the many small municipal
systems (those serving a population under 100,000), the Water
Quality Act embraced a different approach.
The statute directed the Administrator, in consultation
with the states, to conduct studies and report the results to
Congress before developing a program to regulate stormwater
discharges from these systems (see 33 USC § 1342 [p] [5]). The
study was meant to identify sources or classes of stormwater
discharges for which NPDES permits were not required by the Clean
Water Act; determine, to the maximum extent practicable, the
extent and nature of their pollution; and develop procedures and
methods to mitigate the effect of these discharges on water
quality (id.). Congress then directed EPA to "issue regulations
(based on the results of the studies . . . ) which designate
stormwater discharges . . . to be regulated to protect water
quality and [to] establish a comprehensive program to regulate
such designated sources" (id. § 1342 [p] [6]). This program was
to be designed, "at a minimum," to
"(A) establish priorities, (B) establish requirements
of State stormwater management programs, and (C)
establish expeditious deadlines. The program [might]
include performance standards, guidelines, guidance,
and management practices and treatment requirements, as
appropriate" (id. [emphasis added]).
New York's 1988 Legislation
By chapter 360 of the Laws of 1988, the Legislature
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amended the Environmental Conservation Law to authorize DEC to
issue general SPDES permits, as allowed by the Water Quality Act.
To this end, new section 17-0808 specified at subdivision three
that
"[p]ermits for discharges from municipal storm sewers:
"a. May be issued on a system or jurisdiction-wide
basis, pursuant to paragraph (a) of subdivision seven
of section 70-0117 of this chapter;
"b. Shall include a requirement which regulates non-
storm-water discharges into the storm sewers; and
"c. Shall require controls to reduce the discharge of
pollutants to the maximum extent practicable, including
management practices, control techniques and system
design and engineering methods, and such other
provisions as the commissioner determines appropriate
for the control of such pollutants" (Environmental
Conservation Law § 17-0808 [3] [emphasis added];
compare 33 USC 1342 [p] [3] [B] [iii], the cognate
federal provision).
Additionally, the Legislature amended existing section
70-0117 of the Environmental Conservation Law to include a new
subdivision 7 to provide as follows:
"(a) Under the [SPDES] program . . ., the
department may issue a general permit, upon application
or on its own initiative, to cover a category of point
sources of one or more discharges within a stated
geographical area which (i) involve the same or
substantially similar types of operations, (ii)
discharge the same types of pollutants, (iii) require
the same effluent limitations or operating conditions,
(iv) require the same or similar monitoring, and (v)
which will result in minimal cumulative impacts.
"(b) General permits can only be issued for the
following categories of discharges, if, by virtue of
their nature and location, the department determines
such discharges are more appropriately controlled under
a general permit than under individual permits:
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"(i) separate storm sewers or stormwater
conveyance systems; . . .
"(c) Any general permit under this subdivision
shall set forth the conditions which shall apply to any
discharge authorized by such general permit.
"(d) The department may require any person
authorized by a general permit to apply for and obtain
an individual permit and the department shall adopt
rules and regulations specifying circumstances under
which an individual permit may be required.
"(e) General permits shall be governed by the
procedures set forth in this article [70] for the
issuance of major permits" (former Environmental
Conservation Law § 70-0117 [7], renumbered
Environmental Conservation Law § 70-0117 [6] [L 1994,
ch 170, § 202]).
The bill that became chapter 360 was drafted by and
introduced at the request of DEC, which sought general permitting
authority in order to avoid "issuance of thousands of individual
SPDES permits covering discharges of heat, stormwater and non-
industrial waste as well as . . . discharges of a minor nature[,
which] do not require the individual attention the statute
currently demands" (Bill Jacket, L 1988, ch 360 at 9 [emphasis
added]). Similarly, DEC explained that general permitting would
"reduce the amount of paperwork and resources dedicated
to permitted discharges which do not warrant technical
case review. Past regulation of such discharges has
created substantial administrative burdens without
corresponding increases in environmental protection.
Staff time spent on processing these types of permits
detracts from time that could be spent on major and
toxic discharges" (id. [emphases added]).
The bill's Senate and Assembly sponsors repeated these rationales
(id. at 18, 23, 29).
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EPA's Final Rule
EPA promulgated its final rule regulating stormwater
discharges from small municipalities' separate stormwater sewer
systems on December 8, 1999, effective February 7, 2000 (64 Fed
Reg 68722 [Dec 8, 1999] codified at 40 CFR pts 9, 122, 123 and
124]). These so-called Phase II regulations expanded the
existing NPDES Phase I stormwater program.3 The record to
support the regulation of small MS4s included the studies and
reports to Congress mandated by the Water Quality Act, as well as
EPA's evaluation of comments and considerable additional research
and studies. Based on this record, EPA determined that surface
water contamination from wet-weather discharges from these
systems was best controlled by means of measures designed to
reduce the quantity of pollutants introduced into stormwater and
the volume of stormwater flow rather than end-of-pipe numeric
limits (id. at 68753). Accordingly, the regulations required
small MS4s to develop and implement a SWMP that identified best
management practices to attain "minimum control measures" in six
key areas: public education and outreach; public involvement;
3
As the first step in carrying out the requirements of the
Water Quality Act, the Phase I program covered NPDES permitting
of stormwater discharges from MS4s serving a population of 100,00
or more and stormwater discharges associated with industrial
activity, including construction activities involving five or
more acres (33 USC § 1342 [p] [2], [4]; see also 55 Fed Reg 47990
[Nov 16, 1990]). In addition to small MS4s, the Phase II
regulations also addressed construction sites that disturb one to
five acres and additional sources that might be designated on a
case-by-case basis (64 Fed Reg at 68722).
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illicit discharge detection and elimination; construction site
runoff control; stormwater management in new development and
redevelopment; and pollution prevention and good housekeeping of
municipal operations (id. at 68736; 68754-68762).
EPA determined that if small MS4s carried out best
management practices in accordance with their SWMPs, they would
comply with the statutory standard to reduce pollutants to the
maximum extent practicable (id. at 68754; see also id. at 68843
[40 CFR 122.34 (a)]); and "[a]bsent evidence to the contrary, . .
. presume[d] that a small MS4 program that implements the six
minimum measures . . . does not require more stringent
limitations to meet water quality standards" (64 Fed Reg at
68753). EPA recommended that small MS4s include the public in
developing, implementing and reviewing the SWMP (id. at 68844 [40
CFR 122.34 (b) (2) (ii)]);4 and required that all records,
including a description of the SWMP, must be made available to
the public for review and copying at reasonable times during
regular business hours (64 Fed Reg at 68846 [40 CFR 122.34 (g)
4
The 2010 General Permit requires small MS4s to provide the
public with the opportunity to participate in the development,
implementation, review and revision of the SWMP. In this context,
"development" means the "period after initial authorization under
[the 2010 General Permit] when [the small MS4] creates, designs
or develops activities, BMPs, tasks or other measures to include
in [its] SWMP"; and "implementation" means the "period after
development of [the] SWMP, where the [small MS4] puts into effect
the practices, tasks and other activities in [its] SWMP."
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(2)]).5
EPA interpreted the Water Quality Act as authorizing it
to develop a stormwater program for small municipalities either
as part of the NPDES permit program or as a stand-alone non-NPDES
program, such as a self-implementing rule. EPA settled on the
use of NPDES permits instead of a rule for several reasons,
including a desire to maintain consistency with its Phase I
program for stormwater control; to capitalize upon the existing
government infrastructure for administration of the NPDES program
and the regulated community's understanding of how the NPDES
program works; and to provide flexibility in order to facilitate
watershed planning and sensitivity to local conditions (id. at
68739). EPA did note, however, that "[k]ey provisions" of the
rule "promot[ed] a streamlined approach to permit issuance by,
for example, using general permits" (id. at 68740; see also id.
at 68762 [although the permit to authorize a small MS4's
discharges might take the form of either an individual NPDES
permit issued to one or more facilities as co-permittees or a
general NPDES permit that applied to a group of small MS4s, EPA
"expect[ed]" that most discharges would be authorized or
"covered" under general permits for reasons of administrative
efficiency and reduced paperwork burdens]). In fact, EPA
recommended using general permits, rather than individual
5
The 2010 General Permit directs small MS4s to ensure that
copies of SWMPs and Annual Reports are available for public
inspection.
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permits, for all stormwater sources newly regulated under its
rule (id. at 68737).
A small MS4 that seeks coverage under a general NPDES
permit for its stormwater discharges is required to submit an NOI
to the permitting authority. The NOI must specify the best
management practices to be implemented for each of the six
required minimum control measures along with measurable goals for
the development and implementation of each best management
practice (id. at 68762-68764). Although "[s]everal commenters
suggested that EPA require permitting authorities to approve or
disapprove the submitted BMPs and measurable goals[,] EPA
disagree[d] that formal approval or disapproval by the permitting
authority [was] needed" (id. at 68764).6
EPA afforded small MS4s up to five years to fully
develop and implement their SWMPs,7 with annual reports required
to document progress (id. at 68770, 68846 [40 CFR 122.34 (g)
6
EPA allows a small MS4 that submits a complete and timely
NOI to discharge upon receipt of the NOI by the state permitting
authority, after a waiting period specified in the general
permit, on a date specified in the general permit or upon
receiving notice of inclusion from the state permitting authority
(see 40 CFR 122.28 [b] [2] [iv]). By contrast, the 2010 General
Permit requires DEC to publish a notice in the Environmental
Notice Bulletin when an NOI is received from a small MS4. These
notices provide a web link to the actual NOI, and inform the
public of the physical location of the NOI and SWMP, which are
available for public inspection. The NOI is subject to a 28-day
public comment period prior to DEC's authorization of the small
MS4's discharges.
7
DEC reduced the time period from five to three years for
the New York program.
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(3)]). The Agency stated that "[t]he permitting authority will
use the reports in evaluating compliance with permit conditions
and, where necessary, will modify the permit conditions to
address changed conditions" (64 Fed Reg at 68770).
The 2010 General Permit
The 2010 General Permit is a 97-page document, with
appendices, which requires small MS4s to develop, document and
implement a SWMP that includes 44 mandatory best management
practices grouped into the six program components, or minimum
control measures. Many of the mandatory best management
practices afford small MS4s little or no choice about what they
must do to comply with the 2010 General Permit; others afford
more freedom in implementation. As an example of the latter,
under the minimum control measure addressing public outreach,
small MS4s must develop and implement an ongoing public education
and outreach program, but enjoy flexibility to decide how best to
accomplish this in light of local conditions or considerations
(e.g., a media campaign, presentations to community groups,
outreach to commercial entities, a webpage, printed materials,
posters and/or 13 other suggested ways or management practices to
raise the public's awareness and engage its participation in
reducing pollution of stormwater runoff).
At the other end of the spectrum, the 2010 General
Permit imposes highly prescriptive requirements for small MS4s to
develop, implement and enforce a program to detect and eliminate
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non-stormwater (i.e., illicit) discharges. The small MS4s must
develop and maintain maps showing the location of all outfalls,
verify each of them in the field and conduct an outfall inventory
in accordance with detailed guidance published on EPA's website.
Further, each small MS4's program must include procedures to
identify areas that are of greatest concern and describe those
areas, available equipment, staff and funding; identify and
locate illicit discharges; eliminate illicit discharges; and
document the steps the small MS4 has taken to implement its
program.
The NOI and Annual Reports Provided for
by the 2010 General Permit
The NOI is currently a 19-page document that sets out
the six minimum control measures, listing the mandatory and
optional best management practices for each. The small MS4 must
commit to each mandated and any optional best management practice
initially identified in the SWMP;8 describe initially identified
measurable goals for each of the required or chosen best
management practices, with start and end dates, including work to
be done by partners. And finally, either a principal executive
or ranking elected official must sign the NOI, certifying that
the information submitted is, to the best of the signer's
8
Small MS4s in specified watershed improvement strategy
areas must identify the additional best management practices that
they will implement in order to reach specified pollutant load
reductions.
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knowledge and belief, true, accurate and complete, and
acknowledging awareness of the significant penalties for
submitting false information, including the possibility of fines
and imprisonment for knowing violations. As noted previously
(see n 6, supra), the NOI is made available to the public for
comment for a 28-day period. Small MS4s that submit an NOI are
authorized to discharge stormwater upon written notification from
DEC that a complete NOI has been received. DEC, however, may
also choose to require the small MS4 to submit an application for
an individual SPDES permit or an alternative SPDES general
permit. DEC annually audits up to 10% of all municipal storm
sewers, makes site inspections, reviews citizen complaints and,
where necessary, takes enforcement action.
The vast majority of New York's 500 plus small MS4s
achieved initial authorization to discharge stormwater prior to
the effective date of the 2010 General Permit; they were able to
maintain coverage under the 2010 General Permit by submitting
their 2009 Annual Reports (see n 1 and 2, supra). The 2010
General Permit directs small MS4s to make Annual Reports and
SWMPs available for public review; provides for notice of receipt
of 2009 Annual Reports to be published in the Environmental
Notice Bulletin;9 and requires small MS4s to present draft Annual
Reports to the public and to include its responses to any public
9
The 2010 General Permit states that "[f]or public
participation purposes, the [2009] Annual Report will be
considered equivalent to an NOI."
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comments (including, as appropriate, any modifications of the
SWMP) when they submit these reports to DEC. The Annual Report
summarizes the activities performed by the small MS4 during the
reporting period and those planned for the next year, and
includes, among other things, an assessment of compliance with
permit conditions; the appropriateness of the identified best
management practices; and progress toward meeting the measurable
goals for each minimum control measure and achieving the
statutory goal of reducing the discharge of pollutants to the
maximum extent practicable. DEC's review of Annual Reports
allows the Department to keep tabs on small MS4s and to require
any necessary refinement of best management practices. DEC
refers to these contemplated successive rounds of reviewing and,
as necessary, finetuning and refocusing best management practices
as the "iterative process" that is the hallmark of the flexible
"maximum extent practicable" standard, which Congress
deliberately chose as best suited for regulating small
municipalities' stormwater discharges.
II.
Discussion
The Clean Water Act
There is no doubt that the 2010 General Permit complies
with EPA's 1999 regulations, which allow permitting authorities
to authorize small MS4s to discharge stormwater under a general
NPDES permit upon receipt of an NOI –- i.e., without any
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regulatory review, public notice and comment or opportunity for a
public hearing. There is likewise no doubt that the 2010 General
Permit affords more generous regulatory review and public
participation than EPA's 1999 regulations require. But NRDC
contends, and the dissent agrees, that the federal courts have
held that the regulatory review and public participation features
of EPA's 1999 regulations, on which the 2010 General Permit is
necessarily modeled, constitute an "impermissible self-regulatory
system" in contravention of the Clean Water Act, and that New
York courts are bound to follow suit with respect to the New York
program. Stated slightly differently, NRDC and the dissent
assert that federal court decisions make clear that the Clean
Water Act does not allow DEC to authorize a small MS4's
stormwater discharges under the 2010 General Permit without first
engaging in an undefined more detailed review of the NOI (and,
apparently, the SWMP) and providing the public an opportunity to
request a hearing.
After EPA promulgated its 1999 regulations, various
environmental, municipal and industry groups brought petitions
for review, which were consolidated in the United States Court of
Appeals for the Ninth Circuit (see Environmental Defense Ctr.,
Inc. v EPA, 344 F3d 832 [9th Cir 2003] [EDC]). The environmental
petitioners argued that, by allowing permitting authorities to
authorize small MS4s to discharge stormwater on the basis of
"unreviewed NOIs," the regulations created an "impermissible
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self-regulatory system," and additionally "fail[ed] to provide
for public participation as required by the Clean Water Act,
because the public receive[d] neither notice nor opportunity for
hearing regarding an NOI" (id. at 854, 856). A divided panel
agreed.
Applying Chevron analysis,10 the EDC majority first
determined that the Clean Water Act unambiguously expressed
Congress's intent that "EPA issue no permits to discharge from
municipal storm sewers unless those permits require[d] controls
to reduce the discharge of pollutants to the maximum extent
practicable" (id. at 854 [internal citations omitted]), and that
EPA's 1999 regulations did not fulfill this plain command. This
was the case, the majority reasoned, because absent a permitting
agency's "meaningful review" of the minimum control measures
selected by a small MS4,11 the municipal operator might
10
The United States Supreme Court held in the seminal case
of Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc.
(467 U.S. 837 [1984]) that federal courts will accept a federal
agency's reasonable interpretation of the ambiguous statutory
language of statutes that the agency administers.
11
As pointed out earlier, EPA's 1999 regulations did not
require any review of NOIs. DEC takes the position that its
review of NOIs for completeness is "meaningful review";
specifically, DEC does not authorize a small MS4's stormwater
discharges until after examining the NOI to make sure that the
system operator has committed to carrying out a SWMP that
comprehends, at a minimum, 44 mandatory best management practices
(clearly identified in the NOI as "required"), and has
established measurable goals by which to assess how successfully
these best management practices, as implemented, control
stormwater discharges to the maximum extent practicable.
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"misunderstand[] or misrepresent[] its own stormwater situation
and propos[e] a set of minimum measures for itself that would
reduce discharges by far less than the maximum extent
practicable" (id. at 854-856). The EDC majority also concluded
that NOIs (unlike NRDC and the dissent, the court did not mention
SWMPs) are "functionally equivalent" to NPDES permit
applications, and therefore are subject to the same public
availability and public hearing requirements (id. at 857).
The dissenting judge considered the "central issues" in
the case to be whether the Clean Water Act allowed EPA to use a
general permit system to administer the NPDES program and whether
NOIs should properly be regarded as "permits." Citing Chevron,
he noted that "resolution of these issues require[d] a
complicated weighing of policies (e.g., administrative
streamlining vs. robust inquiry) that is precisely what agencies
are designed to do and courts are without the resources or
experience to do" (id. at 881 [Tallman, J., dissenting]).
In the dissenting judge's view, although the majority
correctly recognized that EPA was allowed to use a general permit
system, it
"ignore[d] the effects of the general permit. By
filing an NOI, a discharger obligates itself to comply
with the limitations and controls imposed by the
general permit under which it intends to operate. EPA
mandates that all permits (including general permits)
condition their issuance on satisfaction of pollution
limitations imposed by the Clean Water Act[;
t]herefore, the general permit imposes the obligations
with which the discharger must comply (including
applicable Clean Water Act standards), and EPA's
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decision not to review every NOI is not a failure to
insure compliance with the [statute]" (id. at 882).
As for the majority's objection that EPA's general
permit system did not allow for sufficient public participation,
the dissenting judge chided his colleagues for "fail[ing] to give
deference to EPA and impos[ing] the majority's own wishes
instead" (id.). He added that where "an agency promulgates rules
after a deliberative process, it is incumbent upon [the federal
courts] to respect the agency's decisions or else risk
trivializing the function of that agency"; and that "[i]n this
case, EPA made a permissible decision to create a general permit
program supported by NOIs" (id.).12
In Texas Indep. Producers & Royalty Owners Assn. v EPA
(410 F3d 964 [7th Cir 2005] [Tex. Indep. Producers]), the United
States Court of Appeals for the Seventh Circuit agreed with the
dissenting judge in EDC that NOIs are not subject to the Clean
Water Act's public participation requirements for NPDES permit
applications. As mentioned earlier (see n 3, supra), EPA's Phase
I stormwater regulations addressed construction activities
involving five or more acres, and its Phase II stormwater
regulations addressed construction sites that disturb one to five
acres (as well as small MS4s). EPA eventually promulgated a
12
The dissent comments that the Supreme Court "has chosen
not to take up EDC," citing Texas Cities Coalition on Stormwater
v EPA (541 U.S. 1085 [2004])(dissenting op at 34-35). The Texas
Cities Coalition sought Supreme Court review of its challenge to
EPA's 1999 regulations, primarily on Tenth Amendment grounds.
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general permit for stormwater discharges from both large and
small construction sites in those jurisdictions where it had not
authorized the state or an Indian tribe to administer the NPDES
program. This general permit required operators to submit an NOI
to acquire coverage; a responsible corporate officer to certify
the basis for eligibility for coverage; creation, maintenance and
implementation of a site-specific Storm Water Pollution
Prevention Plan (SWPPP), also to be certified by a corporate
official; and implementation of best management practices
necessary to comply with water quality standards, assure weekly
site inspections and document those inspections, including
detailing weather conditions.
In its petition for review, NRDC attacked the general
permit's failure to make NOIs and SWPPPs available to the public
and afford the opportunity for a public hearing, citing 33 USC §§
1342 (j) and 1342 (a) (1).13 EPA responded that these provisions
did not apply to NOIs and SWPPPs because NOIs and SWPPPs were not
permits or permit applications. The Seventh Circuit concluded
that because the Clean Water Act spoke only of permits and permit
13
Section 1342 (j) of the Clean Water Act provides that "[a]
copy of each permit application and each permit issued under this
section shall be available to the public. Such permit
application or permit, or portion thereof, shall further be
available on request for the purpose of reproduction"; section
1342 (a) (1) authorizes the EPA "after opportunity for public
hearing, [to] issue a permit for the discharge of any pollutant,
or combination of pollutants" (see Environmental Conservation Law
§ 17-0805 [1] for the cognate provisions in state law).
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applications, not NOIs or SWPPPS, the statute was silent or
ambiguous for purposes of Chevron analysis. Accordingly, the
court was called upon to decide whether EPA had reasonably
construed the relevant provisions of the Clean Water Act.
In support of its interpretation, EPA "stressed" that
general NPDES permitting did not "make use of a permit
application"; rather, general permits were proposed through a
notice in the Federal Register to solicit public comment, and
"[i]t [was] at that time that the public [had] the opportunity to
request a public hearing" (id. at 978). Once EPA issued the
general permit as a final rule, a discharger intending to operate
under the general permit's authority was required to comply with
that permit's already established terms; therefore, "there [was]
no need for additional public comment or a notice period," and
potentially requiring a public hearing for individual NOIs and
SWPPPs risked "eviscerat[ing] the administrative efficiency
inherent in the general permitting concept, in effect making the
general permit scheme no different from the process for obtaining
individual permits[, which] would be inconsistent with Congress'
intent to allow for the use of general permits" (id. [internal
citations omitted]).
Calling these rationales "eminently reasonable," the
Seventh Circuit concluded that "EPA's interpretation of the terms
'permit application' and 'permit' as not including NOIs and
SWPPPs is a permissible construction" (id.). In so holding, the
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court acknowledged that it disagreed with the EDC majority and
agreed with the dissenting judge in that case, thus creating a
split between the circuits (id. at 978, n 13).14
In sum, then, the federal circuit courts are split on
the question of whether EPA has permissibly interpreted the Clean
Water Act to mean that an NOI is not a "permit application."15
And we obviously may not engage in Chevron analysis to review
14
The parties disagree about the relevance of a third
federal case, Waterkeeper Alliance, Inc. v EPA (399 F3d 486 [2d
Cir 2005] [Waterkeeper Alliance]), which the United States Court
of Appeals for the Second Circuit handed down after EDC and
before Tex. Indep. Producers. This decision invalidated portions
of EPA's 2003 regulations governing NPDES permitting for
concentrated animal feeding operations (CAFOs), which are
variously-sized but large-scale enterprises that raise animals
like cows and pigs in confined quarters. Waterkeeper Alliance,
however interpreted, does not eliminate the circuit split.
15
We recognize that at least one statement in EPA's 1999
regulations does not appear facially consistent with its position
in the EDC and Tex. Indep. Producers lawsuits. The EDC majority
remarked that "[t]he text of [EPA's] Rule itself acknowledges
that a Phase II NOI is a permit application that is, at least in
some regards, functionally equivalent to a detailed application
for an individualized permit" (EDC, 344 F3d at 853 [emphasis
added]). In support of this proposition, the EDC majority (and
the dissent; see dissenting op at 42, n 10) cite 40 CFR 122.34
(d) (1), which starts out by stating "[i]n your permit
application (either a notice of intent for coverage under a
general permit or an individual permit application)." Section
122.34 is written in a "readable regulation" format as an answer
to the question "As an operator of a regulated small MS4, what
will my NPDES storm water permit require?" It is the task of the
federal courts, not this Court, to figure out whether section
122.34 (d) (1) or anything else in EPA's 1999 regulations is
inconsistent with the Agency's litigation posture in EDC and Tex.
Indep. Producers and, if so, the significance of the
inconsistency.
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EPA's interpretation, which underlies the corresponding, although
not identical, parts of the 2010 General Permit to which NRDC
objects. The federal courts and EPA will have to sort this
out.16 In that regard, NRDC has recently filed a petition for a
writ of mandamus in the Ninth Circuit in the EDC case, asking
that court to order EPA to amend its 1999 regulations within six
months to provide individualized review of NOIs with notice and
opportunity for public hearings. This is all the more reason,
DEC argues, to reject "NRDC's attempt to litigate an underlying
dispute with EPA by ordering relief against DEC for complying
with EPA's regulations." We agree. Unless and until EPA revises
its 1999 regulations, DEC's SPDES general permitting program for
16
The dissent protests that our "'hands-off' approach would
leave this court with no authority to consider the legality of
state agency conduct, [which is] most certainly not the law, as
made plain by [our] administrative law jurisprudence" (dissenting
op at 42). The dissent then cites four cases, only one of which
-- Seittelman v Sabol (91 NY2d 618 [1998]) -- involves federal
law, and in Seittelman, the issue was whether we owed deference
to a State agency's interpretation of a federal statute. Here,
NRDC is asking us to decide that a federal agency -- EPA -- has
improperly interpreted the statute it is tasked with
administering. This is quite different from Seittelman. DEC
operates the SPDES program as EPA's NPDES delegee, and is bound
to follow EPA's interpretation of the Clean Water Act, here
expressed, as challenged, in EPA's 1999 regulations. Federal law
vests exclusive jurisdiction to review those regulations in the
federal circuit courts (see 33 USC § 1369; see also Amer. Frozen
Food Inst. v Train, 539 F2d 107, 124 [DC Cir 1976]). Under the
dissent's view and notwithstanding section 1369 of title 33, the
highest court in every state that administers the NPDES permit
program would be empowered to second-guess EPA's governing
regulations, creating an obvious impediment to implementation of
a coherent nationwide NPDES permitting scheme.
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small MS4s must comply with them (as it concededly does), and DEC
need not go beyond the specifications of those regulations unless
New York law requires it to do so.
The Environmental Conservation Law
A SPDES general permit covers multiple entities with
similar characteristics and minimal impacts (see Environmental
Conservation Law § 70-0117 [6] [a]). SPDES general permitting
allows DEC to avoid detailed review where it is not warranted and
thereby frees up finite regulatory resources for the individual
SPDES permitting of entities with greater impact on the
environment. These were the reasons that DEC gave the
Legislature when it sought SPDES general permitting authority in
1988, after Congress endorsed NPDES general permitting in the
Water Quality Act, and the explanations that the legislation's
sponsors gave when the Environmental Conservation Law was amended
to empower DEC to issue SPDES general permits.
The Legislature has exhibited a continuing willingness
to simplify and streamline the SPDES permitting process to reduce
or eliminate administrative complexities that burden DEC and the
regulated community alike in ways that do not benefit the
environment. For example, in 1994 the Legislature amended the
Environmental Conservation Law to expand general permitting and
require DEC to develop a priority ranking system for individual
SPDES permits in order to carry out an "Environmental Benefit
Permit Strategy" (EBPS) (see L 1994, ch 701). Broadly described,
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the EBPS prioritizes SPDES permits for full technical review and,
when necessary, modification, in order to insure that those point
source discharges presenting the greatest risk to the environment
receive the most expedient and detailed regulatory attention (see
generally TOGS 1.2.2 [Administrative Procedures and the
Environmental Benefit Permit Strategy for Individual SPDES
Permits," issued June 2003; revised Jan. 2012]; see also
Environmental Conservation Law § 17-0805 [1] [b] [making a SPDES
permit's priority ranking subject to an opportunity for a public
hearing]).
NRDC and the dissent blur the distinction between SPDES
general and individual permits by seeking to require DEC to
undertake an undefined more comprehensive review of NOIs (and,
apparently, to review SWMPs), and to provide an opportunity for a
public hearing on NOIs/SWMPs. Thus, NRDC would like DEC to treat
an NOI as though it were, or at least more like, an application
for an individual SPDES permit to be issued rather than what it
really is –- a request for coverage under a general SPDES permit
that has already been issued pursuant to the full panoply of
article 70 procedures (see Environmental Conservation Law § 70-
0117 [6] [e]; 6 NYCRR part 621).17 But the Environmental
17
In fact, the public enjoyed opportunities to participate
in the development of the 2010 General Permit which exceed
article 70's requirements. In the Fact Sheet issued with the
2010 General Permit, DEC explained that, in response to
"significant public interest" in the 2008 General Permit, it
limited that Permit's term to two years and embarked on an 18-
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Conservation Law does not obligate DEC to conduct SPDES general
permitting for small MS4s in accordance with NRDC's and the
dissent's policy preferences. SPDES general and individual
permits represent alternative ways for small MS4s to obtain
authorization for their stormwater discharges. To the extent the
courts force DEC to apply the same or similar procedures for both
alternatives, the resource-conserving benefits sought by the
Legislature when it enacted the 1988 legislation are compromised,
if not altogether lost.
Here, DEC has determined that examining NOIs for
completeness constitutes a sufficient level of technical
regulatory review to qualify a small MS4 for initial coverage
under the 2010 General Permit; and that the 2010 General Permit's
public participation requirements for NOIs (i.e., notices in the
Environmental Notice Bulletin to let the public know when a small
MS4's NOI has been submitted to DEC and where the NOI and SWMP
are physically located and may be inspected; making the NOI,
month post-issuance review process. All commenters on the 2008
General Permit were invited to participate, and DEC conducted
nine monthly topic meetings to address Green Infrastructure,
Intermunicipal Cooperation, Stormwater Retrofits, Public
Participation, Numeric Effluent Limits, MS4 Funding, Steep
Slopes, Riparian Buffers, Total Maximum Daily Loads and Impaired
Waters. Following these meetings, working drafts of a revised
general permit and revised chapters of DEC's Stormwater
Management Design Manual were reviewed with the participants.
Meetings were held to discuss proposed changes to the Design
Manual and the general permit; participants were invited to
submit comments on the working drafts. DEC incorporated
beneficial provisions identified during this 18-month review in
the 2010 General Permit.
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which DEC posts on its website, subject to a pre-authorization
28-day public comment period) are sufficient. These are
reasonable judgments that DEC possesses the discretion and
expertise to make in furtherance of its responsibilities under
the Environmental Conservation Law to regulate stormwater
discharges from small MS4s (see Matter of Howard v Wyman, 28 NY2d
434, 438 [1971] ["It is well settled that the construction given
statutes and regulations by the agency responsible for their
administration, if not irrational or unreasonable, should be
upheld"]; Matter of Davis v Mills, 98 NY2d 120, 125 [2002]
["(T)his Court treads gently in second-guessing the experience
and expertise of state agencies charged with administering
statutes and regulations"]).
We have reviewed NRDC's other challenges to the
lawfulness of the 2010 General Permit and consider them likewise
to be without merit. Accordingly, the order of the Appellate
Division, insofar as appealed from, should be affirmed, with
costs.
- 30 -
Matter of Natural Resources Defense Council, Inc., et al. v New
York State Department of Environmental Conservation
No. 48
RIVERA, J.(dissenting in part):
Petitioners are nine organizations or corporations,
including lead petitioner, the not-for-profit Natural Resources
Defense Council, Inc., whose several members use and enjoy New
York State water bodies. Petitioners challenge New York's
statewide general permit which allows storm water pollutant
discharges from small Municipal Storm Sewer Systems. I concur
with the majority to the extent it affirms dismissal of
petitioners' claims as related to the "no net increase" provision
and monitoring. However, because I conclude that the State's
general permit as currently implemented fails to comply in
several respects with federal and state statutory and regulatory
mandates, I dissent.
I.
A. Water Pollution Control and the Clean Water Act
Long-standing concerns over contamination of New York's
and the nation's waters have led to over a century of
governmental controls and prohibitions on water pollution. As
far back as 1903, New York State prohibited sewage and waste
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discharge into public waters (see L. 1903, ch. 468). There was
also early federal concern with contamination of New York's
water, as reflected by Congressional passage of laws in 1886 and
1888 prohibiting discharges of certain pollutants and refuse into
New York Harbor (see L. 1886, ch. 929, § 3).
The Rivers and Harbors Appropriation Act of 1899 was
the first statute to consolidate these and other prior federal
prevention efforts, in order to establish nationwide water
pollution controls. The Act prohibited discharge of "any refuse
matter of any kind or description whatsoever," into any navigable
water of the United States without approval or a permit form the
United States Army Corps of Engineers (see William L. Andreen,
The Evolution of Water Pollution Control in the United
States-State, Local, and Federal Efforts, 1789-1972: Part II, 22
Stan Envtl LJ 215, 220 [2003]; Section of Natural Resources,
Energy, and Environmental Law, American Bar Association, The
Clean Water Act Handbook, at 1 [3d Edition] [hereinafter "Clean
Water Act Handbook"]).
Water pollution, however, remained unabated and
continued to present serious public health issues (see Andreen at
222; 9 N.Y.Prac., Environmental Law and Regulation in New York §
6:2 [2d ed.]). Congress eventually passed the Federal Water
Pollution Control Act in 1948 (FWPCA) to address stream pollution
which, as a result of World War II, had intensified due to
"increased industrial activity and dramatically lower
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expenditures on wastewater treatment" (Andreen at 235). Under
the FWPCA, the states bore primary responsibility for water
pollution within their jurisdictions, and federal enforcement was
limited (see Andreen at 238; see also 80 Cong. Ch. 758, June 30,
1948, 62 Stat. 1155). Over time, Congress amended the FWPCA to
provide financial assistance to municipalities in the form of
grants to construct sewage treatment plants and to shore up
federal enforcement (see Andreen at 240; 62 Stat. 1158).
As national concern increased over environmental
degradation and the adverse impacts of water pollution on society
and the economy, Congress established the Federal Water Pollution
Control Administration (see Water Quality Act of 1965, Pub. L.
No. 89-234, 79 Stat. 903), and the Environmental Protection
Agency (EPA) (see 42 USC § 4321 [Reorganization Plan No. 3 of
1970 establishing the EPA]). It also enacted the Water Quality
Act of 1965 and the Water Quality Improvement Act of 1970. This
administrative and regulatory framework was intended to ensure
the adoption and enforcement of appropriate water quality
standards and pollution controls.
After these efforts failed to protect the nation's
waters from dangerous levels of contamination, or to halt the
continued decline of water quality, Congress passed a
comprehensive revision and recodification of the FWPCA in 1972
(see Pub. L. No. 92-500, October 18, 1972 86 Stat. 816 [codified
as amended at 33 USC §§ 1251-1376 (2000)]). These amendments
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form the basis for what is best known as the Clean Water Act.
B. The Clean Water Act and the National Pollutant
Discharge Elimination System
The Clean Water Act (CWA) heralded the modern era of
federal water pollution control, with the stated objective to
"restore and maintain the chemical, physical, and biological
integrity of the Nation's waters" and the goal of eliminating
water pollution (see 33 USC § 1251 [a]). It provided for more
robust federal enforcement of pollution controls and the
development and implementation of waste treatment programs (see
Andreen at 239-24). It also declared unlawful "the discharge of
any pollutant by any person," to "navigable waters" from a "point
source" (see 33 USC § 1311 [a]) unless authorized by federal
permit, in accordance with the newly established national
pollutant discharge elimination system (NPDES) (see 33 USC § 1342
[a]).1
This federal permit scheme, central to the CWA and
administered by the EPA, subjects permit holders to pollutant
discharge limitations as well as mandatory monitoring and
1
The CWA defines point sources as "any discernible, confined
and discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation,
or vessel or other floating craft, from which pollutants are or
may be discharged" (33 USC § 1362 [14]; see also 40 CFR 122.2).
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reporting requirements (see 33 USC § 1311 [b] [1] [A]; 33 USC §
1342 [b] [1] [A] [requiring SPDES permits to comply with § 1311];
see also Andreen at 261; Jeffrey M. Gaba, Generally Illegal:
Npdes General Permits Under the Clean Water Act, 31 Harv Envtl L
Rev 409, 410 [2007]). While the NPDES permit "authoriz[es] some
water pollution, [it] place[s] important restrictions on the
quality and character of that licit pollution" (Waterkeeper
Alliance, Inc. v U.S. E.P.A., 399 F3d 486, 491 [2d Cir 2005]).
The CWA imposes effluent limitations, which are
"restriction[s]... on [the] quantities, rates, and concentrations
of chemical, physical, biological, and other constituents which
are discharged from point sources into navigable waters" (id.,
citing South Florida Water Mgt. Dist. v Miccosukee Tribe of
Indians, 541 U.S. 95, 100 [2004]). The CWA defines effluent
limitations as "any restriction established by a State or the
Administrator on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents which are
discharged from point sources into navigable waters, the waters
of the contiguous zone, or the ocean, including schedules of
compliance" (33 USC § 1362 [11]). Certain effluent limitations
are technology based, meaning they are "established in accordance
with various technological standards that the [CWA] statutorily
provides and that . . . vary depending upon the type of pollutant
involved, the type of discharge involved, and whether the point
source in question is new or already existing" (Waterkeeper, 399
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F3d at 491). The CWA also provides for more stringent water
quality-based effluent limitations when necessary to ensure state
water quality standards (see 33 USC § 1311 [b] [C]). The
technology-based and water quality-based limitations are
generally represented as numerical limits on specific pollutant
discharges (see Waterkeeper, 399 F3d at 491).
A permit is issued "upon condition that such
[pollutant] discharge will meet . . . all applicable requirements
including the effluent limitations statutorily required" by the
CWA (id. at 498 [brackets omitted]). Thus, under the CWA's NPDES
permit structure, "a discharger's performance is now measured
against strict technology-based effluent limitations specified
levels of treatment to which it must conform, rather than against
limitations derived from water quality standards to which it and
other polluters must collectively conform" (Environmental
Protection Agency v California ex rel. State Water Resources
Control Bd., 426 U.S. 200, 204-05 [1976] [hereinafter "EPA"). As
described by the United States Supreme Court
"[a]n NPDES permit serves to transform
generally applicable effluent limitations and
other standards including those based on
water quality into the obligations (including
a timetable for compliance) of the individual
discharger, and the Amendments provide for
direct administrative and judicial
enforcement of permits . . . In short, the
permit defines, and facilitates compliance
with, and enforcement of a preponderance of a
discharger's obligations under the [Clean
Water Act] Amendments"
(id. at 205 [internal citations omitted]).
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The CWA itself "imposes only limited procedural
obligations on the issuance of NPDES permits" (Gaba at 417). The
process for obtaining a permit is specifically set forth in EPA
regulations (see 40 CFR 122.21, et seq.). As a general matter,
an applicant must file an EPA permit application form (see 40 CFR
122.21 [a] [2]). The application must be submitted at least 180
days before the applicant intends to commence discharging (see 40
CFR 122.21 [c] [1]), and no permit will issue if an application
is deemed incomplete by the EPA (see 40 CFR 122.21 [e] [1]).
The CWA anticipates and requires certain opportunities
for public participation. As prominently set forth in the CWA
Declaration of Goals and Policy, "[p]ublic participation in the
development, revision, and enforcement of any regulation,
standard, effluent limitation, plan, or program established by
the [EPA] or any State . . . shall be provided for, encouraged,
and assisted by the [EPA] and the States" (33 USC § 1251 [e]).
The EPA may issue a NPDES permit only "after opportunity for
public hearing" (33 USC § 1342 [a] [1]), and "a copy of each
permit application and permit issued . . . shall be available to
the public" (33 USC § 1342 [j]). In addition, the EPA
regulations provide for public participation in the issuance of
NPDES permits, including requiring notice and opportunity for
comment on the denial of permit applications or the issuance of
draft permits (see 40 CFR 124.10 [a] [i], [ii]), and the
opportunity for a public hearing at the request of interested
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parties (see 40 CFR 124.11). The Administrator of the EPA shall
hold a hearing where the Administrator "finds, on the basis of
requests, a significant degree of public interest in a draft
permit(s)" (40 CFR 124.12 [a] [1]), or "at [the Administrator's]
discretion, whenever, for instance, such a hearing might clarify
one or more issues involved in the permit decision" (40 CFR
124.12 [a] [2]).
Maximization of public involvement as a federally
recognized goal is illustrated not only by the CWA's public
participation requirement, but also by its statutory provisions
authorizing private civil suits (see 33 USC § 1365). Under the
CWA, a person may commence a civil suit against individual
polluters as well as federal and state government entities for
failure to act in accordance with the law (see 33 USC §§ 1365 (A)
(1),(A) (2). Private actors have actively litigated the proper
enforcement of the CWA and compliance with NPDES permits (see
e.g. Los Angeles County Flood Control Dist. v Natural Resources
Defense Council, Inc., 133 S. Ct. 710 [2013] [environmental
organizations brought action against California municipal
entities, alleging that they were discharging urban stormwater
runoff into navigable waters in violation of the CWA]; Decker v
Northwest Envtl. Defense Ctr., 133 S. Ct. 1326 [2013]
[environmental organization brought action against Oregon
officials and timber companies, alleging that they violated the
CWA by discharging stormwater from ditches alongside logging
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- 9 - No. 48
roads in state forest without NPDES permits]).
C. State Pollutant Discharge Elimination System
The CWA also allows for a federally-authorized, EPA-
approved state to issue permits "for discharges into navigable
waters within" the state's jurisdiction (33 USC § 1342 [b]).
Currently, a majority of states are EPA-approved to operate their
own state pollutant discharge elimination system (SPDES). The
laws of such state must "provide adequate authority to carry out
the [permit] program" (33 USC § 1342 [b]), and the permits issued
pursuant to this EPA authorization, must "apply, and insure
compliance with, any applicable [CWA effluent limitations and
standards]" (33 USC § 1342 [b] [1] [A]).
In 1975, the EPA authorized New York to issue permits
under the state's SPDES, established pursuant to Article 17 of
New York's Environmental Conservation Law. Thus, discharges or
pollutants from point sources into the waters of the state are
prohibited, unless authorized under New York's SPDES permit
program (see ECL 17-0803; see also 33 USC § 1311 [a]). In
accordance with the ECL, any discharges allowed by these permits
shall
"conform to and meet all applicable
requirements of the [CWA] ... and rules,
regulations, guidelines, criteria, standards
and limitations adopted pursuant thereto
relating to effluent limitations, water
quality related effluent limitations, new
source performance standards, toxic and
pretreatment effluent limitations, ocean
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discharge criteria, and monitoring, and to
participate in the [NPDES] created by the
[CWA]"
(ECL § 17-0801). In addition to applicable federal requirements,
such permits are also subject to regulations issued by DEC (see 6
NYCRR 750, et seq.).
In New York, in order to obtain a permit, an interested
party must file an application (see ECL § 17-0803; 6 NYCRR
750-1.4 [a]). The applicant must secure the permit prior to
actual discharge of any prohibited pollutant (ECL § 17-0803 ["it
shall be unlawful to discharge . . . without a SPDES permit"]; 6
NYCRR 750-1.4 [a] ["no person shall discharge . . . without a
SPDES permit"]). As required by law, DEC reviews and, where
appropriate, approves the permit and issues a draft permit
setting forth the effluent limitations and other conditions
applicable to the discharger (ECL § 17-0809 [1]; 6 NYRR 750-1.10
[a]).
Public participation under New York's SPDES permit
program is advanced through public notice requirements and an
opportunity for public hearing on the permit application (see ECL
§ 17-0805 [b]; see also 6 NYCRR 750-1.12 [a] [requiring notice]).
The DEC must provide notice of every draft SPDES permit,
describing its terms and conditions, and must allow for a minimum
30-day public comment period (ECL § 17-0805 [b]). During the
comment period, "[t]he department may, in its discretion, provide
an opportunity for the applicant or any interested agency, person
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or group of persons to request or petition for a public hearing"
(id.).
D. General Permits
As an alternative to the NPDES permit established by
the CWA, the EPA passed regulations allowing the issuance of
general permits "to cover one or more categories or subcategories
of discharges . . . within a geographical area" (40 CFR § 122.28
[a] [1]). A general permit "is a single NPDES permit that covers
a number of individual discharges that would otherwise require
individual NPDES permits" (Ohio Val. Envtl. Coalition v Horinko,
279 F Supp 2d 732, 758 [SDW Va 2003], citing 40 CFR 122.28; see
also Environmental Defense Ctr., Inc. v U.S. E.P.A., 344 F3d 832,
853 [9th Cir 2003] ["A general permit is a tool by which EPA
regulates a large number of similar dischargers"][Hereinafter
EDC]). Unlike the single-applicant NPDES permit process, under
the general permit scheme, the permitting authority may issue a
general permit "containing a common set of effluent limitations
and other permit conditions that will apply to a potentially
large number of point sources" (Gaba at 419). As such, it
provides for certain efficiencies and reduces the administrative
burdens associated with an individual permit process (see Natural
Resources Defense Council, Inc. v Costle, 568 F2d 1369, 1381 [DC
Cir 1977] ["Area-wide regulation is one well-established means of
coping with administrative exigency"]).
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With the exception of the CWA's authorization for
general permits allowing discharges of "dredged or fill material"
(see 33 USC § 1344 [e] [1]), the CWA contains no special
provisions for a category of "general permits," thus leaving the
procedures and substantive contours of a general permit scheme to
the EPA (see 40 CFR 122.28 [b]).2 Those EPA regulations allow
states to issue general permits through their SPDES programs, in
accordance with federal regulatory provisions (see 40 CFR 123.1
[c] ["The (EPA) Administrator will approve State programs which
conform to the applicable requirements of this part"]). All
general permits, whether issued by the EPA or by an authorized
state, must comply with the CWA and federal regulations (see 40
CFR § 123.25 [a]).
Since under a general permit program the permit is not
issued for individual dischargers, but rather sets forth
requirements that all applicants must satisfy in order to
lawfully discharge pollutants, public participation under this
scheme is provided through a notice and comment period directed
at soliciting public comments on the contents of the general
2
Hence, explaining 1991 legislation wherein Congress
mandated that the EPA "issue final regulations with respect to
general permits for stormwater discharges associated with
industrial activity on or before February 1, 1992" (Pub. L. No.
102–240, December 18, 1991, 105 Stat 1914). In response, EPA
implemented a general permit system for stormwater discharges
from industrial activities (see National Pollutant Discharge
Elimination System General Permits and Reporting Requirements for
Storm Water Discharges Associated With Industrial Activity, 56 FR
40948-01).
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permit (see 40 CFR 124.10 [requiring notice]; 40 CFR 124. 11
[allowing comment and requests for a hearing]). Once the general
permit is finalized and approved, applicants for whom the general
permit is designed may submit a Notice of Intent (NOI) to comply
with the permit and thus acquire coverage thereunder (see 40 CFR
122.28 [b] [2] [i]).
New York State implements a general permit program (see
6 NYCRR 750-1.21 [a]). As defined in the ECL, a general permit
"cover[s] a category of point sources of one or more discharges
within a stated geographical area which (i) involve the same or
substantially similar types of operations, (ii) discharge the
same types of pollutants, (iii) requires the same effluent
limitations or operating conditions, (iv) require the same or
similar monitoring, and (v) which will result in minimal adverse
cumulative impacts" (ECL 70-0117 [6][A]; see also 6 NYCRR
750-1.21).
II.
A. Stormwater Pollutant Discharges
Congress amended the CWA in 1987 to provide for
regulation of municipal and industrial stormwater discharges
under the NPDES program (see 33 USC § 1342 [p]). Stormwater,
from rain and snow, is a highly significant source of water
pollution, because it flows across all types of surfaces and
washes various contaminants into municipal storm sewer systems
which then drain into local water bodies. According to the EPA,
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"[s]torm water runoff continues to harm the
nation's waters. Runoff from lands modified
by human activities can harm surface water
resources in several ways[,] including by
changing natural hydrologic patterns and by
elevating pollutant concentrations and
loadings. Storm water runoff may contain or
mobilize high levels of contaminants, such as
sediment, suspended solids, nutrients, heavy
metals, pathogens, toxins, oxygen-demanding
substances, and floatables"
(40 CFR 122.30 [c]). Regulation of stormwater discharges are
particularly challenging because of the ever present rain and
snow that lead to stormwater runoff, and the fact that
third-parties may be the source of illicit discharges to storm
sewer systems (see 64 Fed Reg 68, 789 ["EPA acknowledges the need
to devise a regulatory program that is both flexible enough to
accommodate the episodic nature, variability and volume of wet
weather discharges and prescriptive enough to ensure protection
of the water resource"]).
As provided under the CWA, the NPDES permit for
municipal storm sewer discharges "shall require controls to
reduce the discharge of pollutants to the maximum extent
practicable, including management practices, control techniques
and system, design and engineering methods, and such other
provisions the [EPA] Administrator or the State determines
appropriate for the control of such pollutants" (see 33 USC §
1342 [p] [3] [B] [iii]). The CWA does not define the maximum
extent practicable standard. However, it appears to provide
broad authority to agencies to control stormwater pollution.
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In 1990 and 1999, the EPA adopted rules regulating
Municipal Separate Storm Sewer Systems ("MS4s"), which are
systems designed to carry stormwater (see 40 CFR 122.26 [b] [8]).
The problems associated with regulating small MS4s are complex
because of these municipalities' limited resources, the sheer
numbers and diversity of the localities impacted by the general
permit system, and the opportunity for an MS4 drainage system to
cross geographic boundary lines, thus implicating multiple
government entities.
The federal regulations authorize state agencies to
issue general permits for such discharges (see 40 CFR 122.26 [a]
[5], 122.28 [a] [2] [i]). According to the EPA regulations, the
state general permit must require that the MS4 "develop,
implement and enforce a storm water management program designed
to reduce the discharge of pollutants from [the] MS4 to the
maximum extent practicable (MEP), to protect water quality, and
to satisfy the appropriate water quality requirements of the
[CWA]" (see 40 CFR 122.34 [a]). Further, the MS4's stormwater
management program (SWMP) "must include the minimum control
measures" set forth in the EPA regulations (id.). The EPA has
also concluded that with respect to MS4s
"narrative effluent limitations requiring
implementation of best management practices
(BMPs) are generally the most appropriate
form of effluent limitations when designed to
satisfy technology requirements (including
reductions of pollutants to the maximum
extent practicable) and to protect water
quality. Implementation of best management
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practices consistent with the provisions of
the storm water management program required
pursuant to this section and the provisions
of the permit required pursuant to § 122.33
constitutes compliance with the standard of
reducing pollutants to the 'maximum extent
practicable'"
(40 CFR 122.34 [a]).
B. New York State's MS4 SPDES Stormwater Discharges
General Permit
In 2003, DEC issued a General Permit For Stormwater
Discharges for MS4s ("General Permit"), which applies to small
municipalities as defined in the federal regulations (see 40 CFR
122.26 [16]). The General Permit was renewed for two years in
2008, and renewed again for five years in 2010.3 This single
General Permit currently covers 559 municipal separate storm
sewer systems, statewide.
The General Permit authorizes stormwater discharges by
small MS4 operators covered by the permit. Coverage is effective
once the MS4 submits, and the State accepts as complete, an NOI
(see NYS DEC SPDES General Permit, Permit No. GP-0-10-002, at 2,
[hereinafter "General Permit"] ["Authorization under this SPDES
General Permit is effective upon written notification from the
[DEC] of the receipt of a complete NOI"]). The New York NOI is a
form document filled out by an MS4. It contains the MS4's
3
In anticipation of the General Permit's expiration on
April 30, 2010, DEC sent a public notice of an interim draft
renewal, effective for two years.
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affirmances that it will comply with the general permit
requirements, and that it has developed an initial SWMP to be
implemented in accordance with the terms of the General Permit.
Under the General Permit scheme, an MS4
"must develop (for newly authorized MS4s,
implement), and enforce a SWMP designed to
reduce the discharge of pollutants from small
MS4s to the maximum extent practicable
("MEP") in order to protect water quality and
to satisfy the appropriate water quality
requirements of the ECL and the CWA. The
objective of the permit is for the MS4s to
assure achievement of the applicable water
quality standards"
(General Permit, "Part IV. Stormwater Management Program (SWMP),"
Subsection A, "SWMP Background," at 14). The General Permit
requires the SWMP contain the six mandatory minimum control
measures set forth in the General Permit, and which mirror those
contained in the EPA regulations. These control measures are
titled: (1) public education and outreach on stormwater; (2)
public participation in the development, implementation and
review of the MS4's SWMP; (3) development of a program for
detecting and eliminating "illicit discharges"; (4) development
of a program to control construction site stormwater runoff; (5)
post-construction stormwater management; and (6) pollution
prevention for municipal operations (General Permit, "Part VIII.
Minimum Control Measures - Traditional Non-land Use and Non-
traditional MS4s," at 49-67; see also CFR §§ 122.34 [b] [1]-[6]).
Also, DEC has identified for each minimum control,
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certain mandatory "best management practices," to be utilized by
the MS4 "to prevent or reduce the pollution of waters of the
state" (General Permit, "Part X. Acronyms and Definitions," at
88). The MS4's SWMP must specifically set forth "measurable
goals" for each management practice (see id. at 95). An MS4
documents the developed, planned, and implemented SWMP elements
in a SWMP Plan (Plan),4 which "describe[s] how pollutants in
stormwater runoff will be controlled" (id. at 96).
In addition to the minimum controls and management
practices identified by the DEC, an MS4 "must comply with all
applicable technology-based effluent standards or limitations
promulgated by EPA pursuant to" the CWA (General Permit, "Part
VI. Standard Permits and Conditions," Subsection E. "Technology
Standards," at 22). Further, "[i]f an effluent standard or
limitation more stringent than any effluent limitation in the
SPDES general permit or controlling a pollutant not limited in
the permit is promulgated or approved after the permit is issued,
the SWMP plan shall be promptly modified to include that effluent
standard or limitation" (id.)
The ECL further requires that SPDES permits "insure
compliance with water quality standards adopted pursuant to state
4
The Plan may be created individually or with a group of
covered municipalities, and is a separate document, not to be
submitted with the NOI (see General Permit, "Part X. Acronyms and
Definitions," at 96).
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law" (ECL § 17-0811 [5]). The EPA regulations also prohibit
issuance of SPDES permits that do not "ensure compliance with
applicable water quality requirements of all affected States"
(see 40 CFR §§ 122.4 [d], 123.25 [a] [1], 122.44 [1], 123.25 [a]
[15]).
The CWA requires a state to establish, as effluent
limitations, water quality standards for the state's water bodies
by designating uses for every waterway and the amount of
permissible pollutants that may be present without impairing
those designated uses (see 33 USC § 1313 [c] [2] [A]). Where
current technology-based pollution controls are ineffective to
attain or retain water quality standards for a water body, then
that body is considered "impaired" (see 33 USC § 1311 [d]). The
CWA requires that the states priority rank these impaired waters,
"taking into account the severity of the pollution and the uses
to be made of such waters" (see 33 USC § 1311 [d] [1] [A]), and
calculate for each the total maximum daily load (TMDL) for the
relevant pollutants that the water body may receive from all
sources while still maintaining its water quality standards for
any particular pollutant (id.). The states must set reductions
for sources responsible for discharging pollutants in order for
the dischargers to meet the TMDL (see 33 USC § 1311 [d] [1] [C]).
As petitioners and the state recognize, it can take years to
determine a TMDL.
For those impaired waters in New York that do not have
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a TMDL, the state's General Permit has established interim
measures to address stormwater discharges pending designation of
the applicable TMDL. In particular, effective the date the MS4
attains permit coverage, the MS4 must ensure "no net increase" in
its discharge for certain pollutants, referred to as "pollutants
of concern" and which are identified in the General Permit (see
General Permit, "Part III. Special Conditions," Subsection B.,
"Impaired Waters," at 11, 101-108). The General Permit includes
pollutant load reductions for various water bodies in the state
(General Permit, "Part IX. Watershed Improvement Strategy
Requirements," Subsection C., "Pathogen Impaired Watershed MS4s,"
at 78). Further, the MS4 must take all necessary actions to
ensure future discharges do not cause or contribute to any
existing violation of water quality standards. In other words,
the General Permit requires the MS4 maintain the pollutant level
at status quo. With respect to those water bodies for which New
York has established a TMDL, the General Permit requires that the
MS4 comply with the discharge reduction as "defined by the TMDL
program" (General Permit, "Part III. Special Conditions,"
Subsection B "Impaired Waters," Subpart 2, "Watershed Improvement
Strategies," at 12).
The MS4's affirmative agreement to comply with the
General Permit requirements is represented in the NOI form, which
consists mainly of a simplified checklist of the minimum control
measures and management practices. In other words, the MS4
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selects from a "menu" of required and optional management
practices, and thus indicates which items the MS4 will employ to
meet a given minimum control measure.5 In order to select from
5
For example, with respect to the minimum control measure
"Illicit Discharge Detection and Elimination," the NOI form
requires the MS4 include in its SWMP the following management
practices:
• "Develop, implement and enforce a program to detect and
eliminate illicit discharges to the MS4"
• "Outfall and storm sewershed boundary mapping"
• "field verify outfalls"
• "outfall reconnaissance inventory"
• "prohibit illicit discharges"
• "Public, employees, business informed of hazards of
illicit discharge"
• "Adopt and enforce local law to prohibit illicit
discharges"
• "Adopt available mechanisms for to prohibit illicit
discharges"
(see NYS DEC Phase II SPDES General Permit for Storm Water
Discharge from MS4s Notice of Intent, at 8 [hereinafter "NOI"]).
In addition to the required practices, the NOI lists, by short
phrases, several optional management practices for the applicant
to consider adopting:
• "System mapping"
• "address exempt non-stormwater discharges as necessary"
• "Dye testing"
• "shoreline surveys"
• "system surveys"
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the list, the MS4 need only fill in the circle corresponding to
each management practice. The NOI form also provides for a
narrative description of "measurable goals," with start and end
dates "that will be used for each best management practice for
each of the minimum control measures" (NOI at 12-13).
III.
Petitioners filed this hybrid CPLR article 78
proceeding and declaratory judgment action challenging portions
of the General Permit as inconsistent with federal and state law.
Petitioners requested the court remand the General Permit to DEC,
with instructions that DEC modify the permit to conform with all
applicable legal requirements.
Our scope of review requires that we determine whether
DEC's issuance of the General Permit "was made in violation of
lawful procedure, was affected by an error of law or was
arbitrary and capricious or an abuse of discretion" to the extent
that the permit's requirements violate state and federal law
(CPLR 7803 [3]). Contrary to the majority, I conclude that DEC
is in violation of applicable mandatory statutory and regulatory
requirements on two grounds. First, DEC improperly grants
coverage under the General Permit to an MS4, without a pre-
coverage substantive review of the MS4's intended storm water
discharge control measures. Second, the state's General Permit
scheme fails to provide members of the public with an opportunity
(id. at 8).
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to request a hearing on the contents of a MS4's NOI and SWMP.
A. New York's Small MS4 General Permit
Petitioners allege that the General Permit relies on an
impermissible self-regulatory system, one that is dependent on
the MS4 implementing pollution controls unverified by DEC for
compliance with federal and state requirements. Specifically,
petitioners claim that under federal law, the General Permit must
contain effluent limitations that reduce pollutant discharges to
the "maximum extent practicable," and also ensure compliance with
water quality standards. Petitioners explain that New York's
General Permit scheme fails to ensure the adoption of legally
sufficient pollution controls because DEC authorizes an MS4 to
develop and implement a stormwater discharge management program,
without DEC first making an administrative determination that the
specific measures chosen by the MS4 will satisfy statutory
pollutant reduction standards.
DEC responds that by requiring an MS4 to adopt the six
minimum control measures and certain best management practices,
DEC has set the benchmark for compliance with the CWA's "maximum
extent practicable" standard. According to DEC, so long as the
MS4 agrees to the minimum control measures and management
practices, the MS4 has chosen a course of action that meets legal
requirements.
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The majority concludes that the General Permit is in
compliance with the CWA and ECL, and that the petitioners merely
seek for this Court to hold the SPDES General Permit to the same
standards applicable to a SPDES individual permit, in
contravention of the state legislature's intent (see majority op
at 27-29). Essentially, the majority adopts DEC's position that
the stormwater general permit scheme is lawful because it
complies with EPA stormwater regulations and ECL requirements,
and reflects the legislative preference for a streamlined
regulatory process which reduces or eliminates administrative
burdens (see id. at 27).
I agree with the majority that the General Permit is
designed to reduce the administrative burdens associated with the
SPDES individual permit program, and that our analysis of
petitioners' claims must consider that these are different
permitting schemes. Where I disagree with the majority is with
its conclusion that the state's stormwater General Permit
complies with the CWA and ECL when it does no more than allow
those who seek to discharge pollutants to determine for
themselves the pollution controls that satisfy the federal
standard, and as a consequence insulate themselves from liability
should they fall short of the federal mandate to reduce
discharges to the "maximum extent practicable."
DEC's own description of the General Permit and its
regulatory efforts establishes that DEC has created an
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impermissible scheme that allows pollution without first ensuring
that the MS4s' pollution controls comply with the CWA and ECL.
While the General Permit sets forth certain control measures and
management practices that every MS4 must incorporate as part of
its pollutant discharge control program, the MS4 is wholly
responsible for the task of identifying, developing and
implementing the activities and measurable goals necessary to
achieve the reduction of stormwater discharges to the "maximum
extent practicable." This is not itself unlawful because DEC
could reasonably conclude there are administrative and
substantive benefits associated with allowing the state's several
hundred municipalities to develop pollution control programs
designed to address local circumstances. However, by leaving to
an MS4 the development and adoption of its pollutant discharge
controls, and granting General Permit coverage without DEC having
reviewed the MS4's program to ensure compliance with the CWA and
ECL, the state has abdicated its essential regulatory role, in
violation of the CWA and ECL.6
The mechanics of the General Permit scheme are
6
DEC contends it reviews every NOI before accepting it.
However, DEC can point to only three instances in which it has
rejected an NOI under the 2010 General Permit. In all three, the
offending MS4 failed to identify certain best management
practices that it is implementing or intends to implement.
Stated differently, DEC has only rejected NOIs where the MS4 left
portions of the NOI's menu blank. Despite DEC's contention to
the contrary, this "review" hardly amounts to anything more than
a "rubber stamp."
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undisputed. The General Permit replaces the individual permit
system with a single permit applicable to a class of dischargers.
New York's General Permit contains the six minimum control
measures identified by the EPA as appropriate to reducing
pollutant discharges to the maximum extent practicable. DEC
contends that it has determined that these measures can be
achieved by application of certain best management practices and
has included those in the General Permit, grouped according to
their corresponding control measure. Thus, the measures, as
expanded by the specified management practices, are the
foundation of the DEC's approach to ensuring an MS4's reduction
of stormwater pollutant discharges within the mandates of the
CWA.
In directing an MS4 to employ these control measures
and management practices in order to achieve compliance with the
"maximum extent practicable" standard, the General Permit does
little to explain the standard, other than to state that if an
MS4 utilizes all the applicable management practices it will
satisfy the federal standard. However, the text of the controls
and management practices lacks the type of quantitative
explication of objective standards which an MS4 can apply to
assess whether its stormwater system's protocols actually reduce
pollutant discharges to a legally sufficient level.
For example, the minimum control measure titled
"Illicit Discharge Detection and Elimination," which refers to
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mixed stormwater discharges such as sanitary sewage, garage drain
effluent, and waste motor oil, requires as a management practice
that an MS4 "develop, implement and enforce a program to detect
and eliminate illicit discharges to the MS4" (see General Permit,
"Part VII. Minimum Control Measures - Traditional Land Use
Control," Subsection A "Traditional Land-Use Control MS4 Minimum
Control Measures," Subpart 3 "Illicit Discharge Detection and
Elimination [IDDE] - SWMP Development/Implementation, at 34-35).
This, of course, says nothing more than that the MS4 must
establish a program to comply with the law. This is but one
example of the vague management practices that provide little by
way of instruction on how an MS4 develops and implements specific
controls to achieve sufficient reduction of discharge levels.
Each and every one of those six control measures
requires that the MS4 "develop (for newly authorized MS4s),
record, periodically assess, and modify as needed, measurable
goals," and also that the MS4 "select and implement appropriate
... [activities or best management practices] and measurable
goals to ensure the reduction of all [pollutants of concern] in
stormwater discharges to the [maximum extent practicable]"
(General Permit, "Part VII. Minimum Control Measures -
Traditional Land Use Control" at 29, 33, 35, 39, 46). As the
General Permit requires, the SWMP "describe[s] the best
management practice/measurable goal, "identif[ies] time
lines/schedules and milestones for development and
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implementation"; includes "quantifiable goals to assess progress
over time"; and describes "how the covered entity will address
pollutants of concern" (General Permit, "Part X, Acronyms and
Definitions," at 95). These are hardly the type of "highly
specific" controls DEC claims them to be.
While the General Permit references other guidance, the
guidance is non-binding. Moreover, it is still the case that the
MS4 could choose to ignore the guidance, believing it has
complied with the maximum extent practicable standard only to
learn later that it has violated the CWA. This is not a merely
speculative assessment of the General Permit structure because as
the permit itself states
"[i]f a covered entity chooses only a few of
the least expensive methods, it is likely
that MEP has not been met. On the other
hand, if a covered entity employs all
applicable BMPs except those where it can be
shown that they are not technically feasible
in the locality, or whose cost would exceed
any benefit to be derived, it would have met
the standard. MEP required covered entities
to choose effective BMPs, and to reject
applicable BMPs only where other effective
BMPs will serve the same purpose, the BMPs
would not be technically feasible, or the
cost would be prohibitive"
(General Permit, "Part X. Acronyms and Definitions," at 91). As
this suggests, something less than adoption of all of the
management practices may comply with the maximum extent
practicable standard, but when that would be the case and under
what circumstances is uncertain and subject to the
particularities of the MS4.
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More significant than the opportunity for an MS4 to
select additional management practices -- or even substitute
mandatory best management practices with management practices the
MS4 determines on its own are better suited or economically
feasible, and yet still designed to ensure achieve reduction to
the maximum extent practicable -- is the fact that, even if the
mandatory management practices were clearer and specific, the
General Permit does not, alone, set the limitations that each MS4
will implement. Instead, DEC delegated that task to the MS4.
The General Permit requires that in order to utilize the measures
and management practices, the MS4 must determine the details and
logistics of the management practices it has selected. Thus, the
General Permit scheme depends on each MS4's determination and
eventual adoption of the most efficacious practices that the MS4
will apply to achieve the statutory goal of pollutant discharge
reductions to the maximum extent practicable.
To that end, the General Permit specifically requires
that the MS4 develop and implement a SWMP "designed to reduce the
discharge of pollutants from the small MS4 to the maximum extent
practicable [], to order to protect water quality, and to satisfy
the appropriate water quality requirements of the ECL and [CWA]"
(see General Permit, "Part IV. Stormwater Management Program
(SWMP) Requirements," Subsection A. "SWMP Background," at 14).
Although the General Permit requires the SWMP contain the six
measures and the mandatory management practices, the SWMP does
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more than merely recite them. Rather, the SWMP expounds upon
them, and thus reflects the MS4's determination of the
appropriate limits necessary to achieve CWA compliance.
That determination is set forth in the "measurable
goals" the MS4 develops for each of the management practices.
These goals are intended to "help the covered entities assess the
status and progress of their program" (General Permit, "Part X,
Acronyms and Definitions," at 95). They "should reflect the
needs and characteristics of the covered entity and the areas
served by its small MS4. Furthermore, the goals should be chosen
using an integrated approach that fully addresses the
requirements and intent of the [minimum control measures]" (id.
at 91).
This is not a static process, because as the General
Permit indicates, "[t]he assumption is that the program schedules
would be created over a 5 year period and goals would be
integrated into that time frame" (id.). Particularly troubling
is the fact that DEC does not review the SWMP or the Plan. In
fact, it appears DEC has gone to great lengths to avoid formal
consideration of both by prohibiting inclusion of the SWMP with
the MS4's NOI, and by allowing up to 3 years after the effective
date of permit coverage for the MS4 to develop and implement the
Plan.
If, as DEC argues, all that is required to result in
discharge reductions sufficient to comply with the CWA is the
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employment of the minimum control measures and the mandatory
management practices, there would be no need for municipal
development and articulation of "activities," "measurable goals"
and "other techniques." In reality, the MS4 is left to details
where none have been provided, and to craft a SWMP and Plan to
guide the implementation of its storm water discharge reduction
efforts. Notably, DEC anticipates that those efforts will change
over time, and thus allows the Plan to be developed and
implemented up to three years after the MS4 gains coverage under
the General Permit.
The majority concludes that "[t]here is no doubt that
the 2010 General Permit complies with EPA's 1999 regulations"
(majority op at 18). However, those very same federal
regulations for small municipal separate storm sewer systems were
deemed to violate the CWA in EDC because they failed to provide
for meaningful administrative review (see 344 F3d 832, 856 [9th
Cir 2003]). In that case, the Ninth Circuit Court of Appeals
considered a challenge to the EPA's Storm Water Phase II Rule,
under which small MS4s were authorized by an NPDES general permit
to immediately commence the discharge of storm water after
submitting an NOI. Unlike the "traditional general permitting
model," the court explained, "the Phase II Rule requires that
each NOI contain information on an individualized pollution
control program that addresses each of the six general criteria
specified in the Minimum Measures" (id. at 853). Under the Rule,
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the EPA was not required to conduct a review of each NOI prior to
discharge authorization, as it is required to conduct before
granting an application for an individual permit (id. at
854-856). The Ninth Circuit held that the permitting scheme
violated 33 USC § 1342 (p) (3) (B) (iii) because "nothing
prevents the operator of a small MS4 from misunderstanding or
misrepresenting its own stormwater situation and proposing a set
of minimum measures for itself that would reduce the discharges
by far less than the maximum extent practicable" (EDC, 344 F3d at
855). Moreover, "in order to receive the protection of a general
permit, the operator of a small MS4 needs to do nothing more than
decide for itself what reduction in discharges would be the
maximum practical reduction. No one will review that operator's
decision to make sure that it was reasonable, or even good faith"
(id.). As a consequence, the "EPA would allow permits to issue
that would do less than require controls to reduce the discharge
of pollutants to the maximum extent practicable" (id. [emphasis
in original]). Accordingly, the court remanded that aspect of
the Rule.
The Second Circuit applied similar reasoning to reject
EPA's NPDES permitting scheme, albeit in a case involving
different water pollutants, namely emissions from concentrated
animal feeding operations (CAFOs) proscribed by the EPA's CAFO
Rule. In Waterkeeper, the Circuit Court concluded that the CAFO
Rule did not require NPDES permitting authorities to review the
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management plans to ensure that the plans were developed and
implemented so as to reduce discharges as required by the federal
regulations (Waterkeeper, 399 F3d at 500).
New York's General Permit similarly fails for the
reasons articulated by the Circuit Courts in EDC and Waterkeeper.
Although the Appellate Division concluded that the General Permit
"includes[s] a variety of enforcement measures that are
sufficient to comply with the maximum extent practicable
standard" (Natural Resources Defense Council, Inc., 120 AD3d at
1243), that is besides the point because the issue is not the
propriety of the measures or the management practices, because
those alone do not establish the details of any particular MS4's
stormwater discharge program. Indeed, petitioners do not
challenge DEC's choice of minimum controls or management
practices. Rather, they challenge DEC's failure to assess for
legal adequacy the pollutant discharge proscriptions actually
developed by the municipalities, and intended to be applied by
the MS4s.
The fact that DEC provides a menu of management
practices cannot save the General Permit scheme because "nothing
requires that the combination of items that the operator of a
small MS4 selects from this 'menu' will have the combined effect
of reducing discharges to the maximum extent practicable" (EDC,
344 F3d 832, n 32). Moreover, it is not the amount of choices
that matters here--as the DEC suggests by arguing that it imposes
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forty four mandatory management practices--because more practices
are meaningless if there is no assessment as to whether the MS4
understands how those practices work and how to apply them to
ensure pollutant discharge reduction to the level required by the
CWA. This is certainly the case here where the CWA's maximum
extent practicable standard is intentionally undefined, and where
DEC's management practices are vague and generalized, often
redundant of the minimum controls.
The majority appears to marginalize the decision in
EDC, characterizing it as part of a Federal Circuit Court split
(see majority op at 25).7 However, in EDC, the Ninth Circuit
vacated the EPA regulations to the extent they did "allow permits
to issue that would do less than require controls to reduce the
discharge of pollutants to the maximum extent practicable" (EDC,
344 F3d at 855-56, citing 64 Fed. Reg. at 68753). Rather than a
division among the Circuit Courts, the Ninth Circuit decision is
the only Circuit decision on the validity of the regulations'
content. While the United States Supreme Court is the final word
on the proper interpretation of the CWA and the EPA regulations,
that Court has chosen not to take up the case (see Texas Cities
Coalition on Stormwater v E.P.A., 541 U.S. 1085 [2004] [denying
petition for writ of certiorari]). Moreover, the Ninth Circuit
decision has affected the EPA's application of the regulations.
7
The majority treats Waterkeeper similarly, relegating it to
a footnote because that decision, "however interpreted, does not
eliminate the circuit split" (see majority op at 25 n 14).
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Indeed, the EPA issued post-EDC guidance to Water Management
Division Directors stating that "[t]he permitting authority will
need to conduct an appropriate review of Phase II MS4s' NOIs to
ensure consistency with the permit."8
Even assuming we could simply ignore that the EPA
regulations have been vacated in relevant part, notwithstanding
the majority's conclusion that the state's General Permit
"concededly" complies with the EPA regulations, the fact is that
the EPA regulations require implementation of best management
practices consistent with the SWMP (see 40 CFR 122.34 [a]
["Implementation of best management practices consistent with the
provisions of the storm water management program required
pursuant to this section and the provisions of the permit
required pursuant to § 122.33 constitutes compliance with the
standard of reducing pollutants to the 'maximum extent
practicable'”]). Therefore, so long as DEC allows General Permit
coverage to an MS4 without ensuring the intended consistency
between management practices and the individualized protocols set
forth in the SWMP, the state is in violation of the CWA (see 33
8
This guidance pre-dates the Seventh Circuit's decision in
Texas Ind. Producers and Royalty Owners Assn. v E.P.A. (410 F3d
964 [7th Cir 2005]) which held, contrary to the Ninth Circuit,
that NOIs are not subject to the CWA public participation
requirements. However, the EPA guidance has not been rescinded
and there is nothing to suggest the obsolescence of the guidance
with respect to agencies ensuring consistency with the permit and
compliance with the CWA.
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USC § 1342 [p] [3] [B] [iii] [providing that MS4 permits "shall
require controls to reduce the discharge of pollutants to the
maximum extent practicable, including management practices,
control techniques and system, design and engineering methods,
and such other provisions as the Administrator or the State
determines appropriate for the control of such pollutants"]).
It is undeniable that DEC has made efforts to adopt a
general permit scheme that complies with the CWA and ECL, and
which provides an administratively feasible approach to the
difficult task of reducing stormwater pollutant discharges.
Nevertheless, DEC's current approach is legally impermissible.
Of course, it is for the state, and not the judiciary, to
establish the state's review and assessment protocols (see Akpan
v Koch, 75 NY2d 561, 570 [1990] ["courts may not substitute their
judgment for that of the agency for it is not their role to weigh
the desirability of any action or to choose among
alternatives”]). It very well may be that the state determines,
as have other jurisdictions,9 that review of the SWMP and the
9
Texas and Mississippi, for example, require the submission
of a full SWMP contemporaneously with the filing of an NOI for
substantive review (see Texas Commission on Environmental
Quality, General Permit to Discharge Under the Texas Pollutant
Discharge Elimination System, § II.E.1 [2013] available at
https://www.tceq.texas.gov/assets/public/permitting/stormwater/tx
r040000_issued_permit.pdf [accessed April 13, 2015]; Mississippi
Department Environmental Quality, Separate Storm Sewer System
(MS4) General Permit, Condition S-1. [2009] available at
http://www.deq.state.ms.us/mdeq.nsf/pdf/epd_MS4PhaseIIStormWater
GeneralPermit/$File/22General.pdf?OpenElement [accessed April 14,
2015]).
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Plan is but one way by which the state may comprehensively and
expeditiously comply with its regulatory mandate. How best to
address this issue should be left to New York.
B. Public Participation Requirements
Petitioners argue that DEC violates statutory public
participation requirements by failing to provide an opportunity
for public comment and to request a public hearing on a MS4's NOI
and SWMP, prior to DEC's authorization of coverage under the
General Permit. DEC currently provides a full public notice and
comment period and an opportunity to request a public hearing on
the General Permit, and DEC also affords an additional 28 day
pre-coverage public comment period with respect to each NOI (see
General Permit, "Part II. Obtaining Permit Coverage," at 8). The
majority concludes this meets all applicable legal requirements.
I disagree and would find that the CWA and ECL require more pre-
coverage public participation. Specifically, because the NOI and
SWMP must contain the MS4s' pollution controls, and the SWMP must
be developed in advance of the NOI, which is then submitted to
obtain coverage under the General Permit, DEC must provide an
opportunity to request a public hearing for any particular NOI
and SWMP.
Congress explicitly sought to encourage public
participation in the development and implementation of the
nation's water pollution control measures, and required that the
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EPA and the states provide for, encourage, and assist with
"public participation in the development, revision and
enforcement of any regulation, standard, effluent limitation,
plan or program established by the [EPA] or any State" (33 USC §
1251 [e]). The intended transparency of the process is reflected
in the CWA requirement that permit applications, and the NPDES
and SPDES permits themselves be made public (see 33 USC § 1342
[j]). With respect to the demand for administrative hearings,
the CWA provides that the EPA may issue a permit "after an
opportunity for public hearing" (see 33 USC § 1342 [A] [1]
[emphasis added]).
The ECL also mandates public participation with respect
to SPDES coverage. State law requires "[p]ublic notice of a
complete application for a SPDES permit" (ECL § 17-0805 [1] [a]),
which shall include "a statement that written comments or
requests for a public hearing on the permit application ... may
be filed by a time and at a place specified" (ECL 17-0805 [a]
[ix]). The public comment shall last "not less than thirty days
following the date of the public notice . . . during which time
interested persons may submit their written views with respect to
the application and the priority ranking of the permit" (ECL §
17-0805 [1] [b]).
Petitioners argue that the public should have the
opportunity to request a hearing on the contents of the NOI and
SWMP because both contain the MS4's pollution controls.
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Petitioners are correct that an MS4 must identify and list in the
NOI its chosen management practices, and it must include in the
SWMP the controls to reduce the discharge pollutants in
accordance with the maximum extent practicable standard. Thus,
the NOI and SWMP not only affirm that the MS4 will comply with
the General Permit's terms, but they also explain how the MS4s
will meet legal requirements, based on the localities' unique
circumstances. Indeed, to ensure for itself that an MS4
understands its duties and obligations, the DEC must refer to the
NOI and SWMP.
Here, DEC issued a General Permit for the specific
purpose of allowing storm water pollutant discharges by a covered
MS4, where an MS4 has agreed to meet conditions set forth in the
CWA, ECL, federal and state regulations, and the General Permit.
A cursory review of the General Permit makes clear that it is not
specific to any particular MS4, but rather it is generic,
intended to set forth the minimum requirements identified by DEC,
which must be complied with by every MS4 seeking coverage under
the General Permit. However, as DEC has vigorously contended,
General Permit coverage is not automatic, but requires that the
MS4 submit an NOI which DEC must then accept as complete.
According to the General Permit, the NOI affirms that a
SWMP has been developed. As the parties concede, the NOI and
SWMP contain what DEC considers to be the mandatory limitations
and measurable goals an MS4 proposes to implement in order to
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ensure stormwater pollutant discharge reduction to the maximum
extent practicable, as required by the CWA. Clearly, then,
submission of a completed NOI, based as it is on an initial SWMP,
is the MS4's entree to the General Permit system, and is a
necessary step to securing authorization to lawfully discharge
pollutants in accordance with the CWA and ECL. If the NOI, and
the prerequisite SWMP, do not constitute a permit application,
then what other avenue does an MS4 have to secure permit coverage
and authorization to lawfully discharge pollutants? The NOI and
SWMP constitute an application in everything but name.
The DEC argues that the CWA and ECL public hearing
requirements apply only to individual permit applications, and
that public participation requirements are satisfied because the
public has the opportunity to submit comments and request a
public hearing regarding the General Permit itself. The EPA
similarly argued in Texas Ind. Producers and Royalty Owners Assn.
v E.P.A. (410 F3d 964 [7th Cir 2005]). In that case, the Seventh
Circuit Court of Appeals agreed with the EPA that the CWA did not
require the agency to provide a comment period or an opportunity
to request a public hearing on NOIs and Storm Water Pollution
Prevention Plans (SWPPP) submitted under the EPA's "Final
National Pollutant Discharge Elimination System General Permit
for Storm Water Discharges From Construction Activities." The
Court concluded that the CWA was ambiguous as to whether NOIs and
SWPPPs are "permits" or "permit applications", and in accordance
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with Chevron, U.S.A., Inc. v Natural Resources Defense Council,
Inc. (467 U.S. 837 [1984]), judicially deferred to the EPA's
interpretation of those statutory terms (see Texas Ind.
Producers, 410 F3d at 978). The Court accepted as reasonable
EPA's argument that individual public hearings for NOIs and
SWMPPPs would eviscerate the administrative efficiency of the
general permit scheme (id.).
In contrast, in EDC, the Ninth Circuit had previously
rejected the EPA's argument that the CWA public hearing
opportunity requirement did not apply to NOIs because they are
not "permits". Instead, the Ninth Circuit held that the "NOI
establishes what the discharger will do to reduce discharges to
the 'maximum extent practicable'" and therefore is "functionally
equivalent to a detailed application for an individualized
permit" (344 F3d at 853).
The majority contends that the federal courts will have
to resolve this "circuit split," and concludes that DEC's general
permit scheme is permissible because it complies with the EPA's
regulations and New York's law does not require more. I disagree
because the majority's conclusion is unsupportable on the record
before us.
Notably, the EPA's position in both cases is counter to
the EPA's own description in its stormwater regulations that a
permit application is inclusive of "a notice of intent for
coverage under a general permit" (40 CFR 122.34). This
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inconsistently alone undermines the state's argument that the NOI
is something other than a permit or permit application.10
Additionally, the majority's "hands-off" approach would
leave this court with no authority to consider the legality of
state agency conduct. That is most certainly not the law, as
made plain by this Court's administrative law jurisprudence (see
Seittelman v Sabol, 91 NY2d 618, 625 [1998] [invalidating state
regulation that was "inconsistent with the controlling Federal
statute it was intended to implement"]; see also Kurcsics v
Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980][the Court
affords an agency no deference if its interpretive regulations
"run[] counter to the clear wording of a statutory provision"];
Raritan Dev. Corp. v.Silva, 91 NY2d 98 [1997] [holding that "when
an [agency] interpretation is contrary to the plain meaning of
the statutory language," the Court may overrule and "decline to
10
The majority holds that while 40 CFR 122.34 "does not
appear facially consistent" with the EPA's position in EDC and
Texas Ind. Producers, that section of the EPA's regulations is
part of a "question and answer" format intended to clarify
requirements applicable to regulated small MS4s (see majority op
at 25 n 15). Therefore, according to the majority, it is for the
federal courts to determine whether the regulations are
inconsistent with the EPA's position in those federal cases.
However, whether the EPA has taken a position at odds with what
DEC now asserts is the correct and intended interpretation of the
federal regulations is, of course, relevant to this Court's
analysis of DEC's defense to petitioners' claims. Turning to the
regulations, it is clear from the text of 40 CFR 122.34 (d) (1)
that a small MS4's NOI is a general permit application.
Notwithstanding the majority's word play, there is no avoiding
that the federal regulations are inconsistent with the EPA's
position in EDC and Texas Ind. Producers.
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enforce an agency's conflicting application thereof"]; Matter of
New York Statewide Coalition of Hispanic Chambers of Commerce v
New York City Dept. of Health & Mental Hygiene, 23 NY3d 681
[2014] [striking down the New York City Board of Health's
restriction on soda portions as exceeding its regulatory
authority given by the legislature]).11 Moreover, absent binding
precedent from the United States Supreme Court, there is no legal
impediment to this Court interpreting federal law (see Flanagan v
Prudential-Bache Sec., Inc., 67 NY2d 500, 506 [1986] ["When there
is neither decision of the Supreme Court nor uniformity in the
decisions of the lower Federal courts . . . a State court
required to interpret [a] Federal statute has the same
11
The majority argues that DEC, as the permitting agency,
must follow the EPA's interpretation of the CWA, but contends
that I suggest every state's high court may second-guess the EPA
(see majority op at 27 n 16). However, my point is not that we
can decide counter to the EPA, but rather that the Ninth Circuit
already has, and we cannot ignore that fact or the Ninth
Circuit's analysis, even if DEC and the majority would have it
otherwise.
There is also no support for the majority's concern that our
review poses a potential "impediment to implementation of a
coherent nationwide NPDES permitting scheme" (id.). The EPA
provides that while SPDES permits must comply with federal
regulations and the CWA, "[n]othing in the [regulations]
precludes a State from . . .[a]dopting or enforcing requirements
which are more stringent or more extensive than those required
[by the EPA]" (40 CFR 123.1 [h] [i] [1]). Nor is there a legal
impediment to "[o]perating a program with greater scope of
coverage than that required [by the federal regulations]" (40 CFR
§ 123.1 [h] [i] [2]). Indeed, the EPA expressly requires MS4s to
"comply with any more stringent effluent limitations in [their
State-issued] permit" (40 CFR 122.34 [e] [1]). It would appear,
then, that differences among the Circuit Courts are the more
likely obstacles to national uniformity.
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responsibility as the lower Federal courts and is not precluded
from exercising its own judgment . . . "]).
We should reject DEC's argument because under the
general permit scheme the NOI and SWMP replace an individual
permit application. To adopt approvingly DEC's position, and
EPA's argument in Texas Ind. Producers, fails to sufficiently
interrogate the general permit regulatory scheme, or fully
appreciate the role of the general public in the general
permitting process. Moreover, the court's conclusion that
requiring public hearings for each individual NOI and SWPPP would
be inconsistent with Congressional intent is not supported by the
language of the CWA. The stated purpose of that statute is to
restore and maintain the integrity of the nation's waters,
eliminate the discharge of pollutants into navigable waters, and
ensure public participation in the development and implementation
of any "plan or program" administered under the CWA by the
states. While there may be administrative efficiencies
supporting the use of a general permit scheme, they do not
outweigh the explicit objectives and goals of the CWA to protect
the country's waters. In any event, because the EPA regulations
allow for individual permits even where a general permit is in
place, the efficiency argument propounded by the DEC and EPA is
underwhelming (see 40 CFR 122.28 [b] [3] [i]).
What is actually counter to the intent of the CWA is to
provide an opportunity to request a public hearing in cases
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involving individual permits, while denying the same under a
statewide general permit scheme involving pollutant discharges
from hundreds of MS4s. The latter potentially implicates the
integrity of local water bodies more significantly than the
actions of any single polluter, and therefore requires the type
of public scrutiny and engagement envisioned by the CWA (see 33
USC § 1342 [a] [1] [the EPA may issue a NPDES permit only "after
opportunity for public hearing"]).
Therefore, DEC's determination that neither the CWA nor
the ECL requires an opportunity for a public hearing on the NOIs
and SWMPs, prior to DEC granting permit coverage, ignores the
obvious purpose and role of these documents, and undermines the
CWA's public participation requirement. As such, DEC's
interpretation is not entitled to deference, and is, for the
reasons I have stated, arbitrary and capricious. Therefore, the
NOI and SWMP should be subject to statutory public participation
requirements that include the opportunity to request a public
hearing.
III.
Accordingly, the 2010 General Permit does not provide
for adequate review of NOIs or meaningful public participation in
accordance with the CWA. Thus, I would modify the Appellate
Division order to remit the Permit to DEC for compliance. I
agree with the majority that petitioners' remaining contentions
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are without merit (see majority op at 30).
* * * * * * * * * * * * * * * * *
Order, insofar as appealed from, affirmed, with costs. Opinion
by Judge Read. Judges Pigott, Abdus-Salaam and Stein concur.
Judge Rivera dissents in part in an opinion in which Chief Judge
Lippman and Judge Fahey concur.
Decided May 5, 2015
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