Enviros Lose Challenge of NY Stormwater Rules

ALBANY, N.Y. (CN) - New York's system to protect public waterways from smaller communities' stormwater runoff is reasonable, the state's high court ruled.

The Natural Resources Defense Council and seven other environmental groups had brought a complaint over the system in 2010 after New York established so-called general permits to help smaller municipalities meet state and federal clean-water standards.

These communities - more than 500 of them statewide with populations under 100,000 - use the permits to develop stormwater-management programs and limit pollution, before seeking the blessing of the state Department of Environmental Conservation (DEC) to discharge runoff from roads, roofs and driveways into rivers and streams.

Because the only requirement for a general permit is a "notice of intention" to discharge filed with the DEC, however, the environmentalists contended that the municipalities face no pressure to reduce pollutants to the "maximum extent practical" - the statutory standard - in violation of clean-water laws.

The Court of Appeals rejected those arguments 4-3 Tuesday.

"DEC has determined that examining [notices of intention] for completeness constitutes a sufficient level of technical regulatory review to qualify a small [municipal system] for initial coverage under the 2010 general permit and that the 2010 general permit's public participation requirements for [notices of intention] ... are sufficient," Judge Susan Read wrote for the majority.

"This court treads gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations," she added, quoting precedent.

Following passage of the federal Clean Water Act in 1972, pollution discharges into waterways were prohibited except under approved permits issued by the U.S. Environmental Protection Agency and known as NPDES (National Pollutant Discharge Elimination System).

New York followed with similar standards under permits known as SPDES (State Pollutant Discharge Elimination System).

The NPDES and SPDES permits both are site-specific.

To answer an expected deluge of applications - and help regulators conserve resources to go after the worst polluters - amendments were added in 1987 to allow more general permits for municipal discharges that were contained in separate stormwater systems not tainted by industrial or commercial waste.

That led to creation of New York's 2010 general-permit system, at issue in the environmental groups' present challenge.

The system, outlined in a 97-page document, requires that small communities develop a stormwater-management plan that includes 44 "mandatory best practices," the court found.

While permit applicants are given flexibility in meeting some of the best-practices requirements, such outreach efforts to the public, there are "highly prescriptive requirements" for detecting and eliminating non-stormwater discharges, Read wrote.

Most small communities were compliant with the general-permit requirements before they took effect in 2010 and remain so, the majority added.

Pointing to federal-court decisions on the Clean Water Act, the environmentalist plaintiffs had contended, however, that the discharges by New York's small communities should not be allowed under the general-permit system without a more detailed review of their notices of intention and public input.

Read resolved the issue by pointing out that the federal circuits are split on the Environmental Protection Agency rules from which New York's system of general permits is drawn.

"Unless and until EPA revises its 1999 regulations, DEC's SPDES general permitting program for small [municipal systems] must comply with them (as it concededly does), and the DEC need not go beyond the specifications of those regulations unless New York law requires it to do so," she wrote (parentheses in original).

Judges Eugene Pigott, Sheila Abdus-Salaam and Leslie Stein concurred with Read's 30-page opinion.

Judge Jenny Rivera penned a dissent, joined by Chief Judge Jonathan Lippman and Eugene Fahey.

This 46-page opinion supports the environmentalists' contention that New York's general-permit system falls short on regulatory oversight and public participation.

"Where I disagree with the majority is with its conclusion that the state's stormwater general permit complies with the [Clean Water Act] and [state Environmental Conservation Law] 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,'" Rivera wrote.

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