Matter of Natural Resources Defense Council, Inc. v. New York State Department of Environmental Conservation
13 N.Y.S.3d 272
| NY | 2015Background
- Stormwater from roofs/roads enters Municipal Separate Storm Sewer Systems (MS4s) and can carry pollutants to waters; federal and New York law require SPDES/NPDES authorization to discharge.
- DEC’s 2010 SPDES MS4 General Permit requires small MS4s (population <100,000) to develop, document and implement a Stormwater Management Program (SWMP) with 44 mandatory Best Management Practices across six minimum control measures; initial coverage may be obtained by submitting a Notice of Intent (NOI) reviewed for completeness.
- EPA Phase II (1999) regulations required small MS4s to implement SWMPs and allowed general permits covering multiple MS4s; EPA did not require permitting authorities to formally approve each NOI before coverage.
- NRDC and other groups challenged New York’s 2010 General Permit, arguing that allowing coverage based on unreviewed NOIs (and limited public process) creates an impermissible self-regulatory system and violates federal and state law; lower courts split, and New York’s Court of Appeals affirmed DEC.
- The Court of Appeals held DEC’s approach complies with EPA’s Phase II regulations and New York law, deferred to DEC’s reasonable implementation choices, and rejected NRDC’s federal- and state-law challenges, while recognizing a federal circuit split on whether NOIs are ‘‘permit applications.’'
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEC may authorize MS4 coverage under a general SPDES permit based on NOIs reviewed only for completeness (i.e., whether that creates an impermissible self-regulatory system) | NRDC: Allowing coverage on the basis of unreviewed/only-complete NOIs lets MS4s choose insufficient controls and avoids DEC verification that chosen measures meet the CWA “maximum extent practicable” (MEP) standard. | DEC: General permits and NOIs follow EPA Phase II rules; DEC reasonably requires completeness review, substantive SWMP development by MS4s, iterative annual reporting, audits and enforcement — a permissible, resource-conscious model. | Held: Affirmed DEC. Court ruled DEC’s completeness review and the General Permit’s requirements (including annual reports, public availability, audits and enforcement) comply with EPA regulations and ECL; DEC has reasonable discretion. |
| Whether the CWA/ECL require public notice/comment and an opportunity for a hearing on each individual NOI/SWMP prior to coverage | NRDC: NOI/SWMP function as permit applications because they set the pollution controls; CWA and ECL public-participation provisions therefore require notice and opportunity for hearing on each NOI/SWMP. | DEC: Public participation was provided in developing the General Permit; EPA’s regulations and some federal courts treat NOIs as not equivalent to individual permit applications, so individualized hearings are not required and would undercut general-permit efficiency. | Held: Affirmed DEC. The Court held DEC’s pre-authorization 28-day notice/comment, public posting of NOIs, annual reporting and inspection/enforcement regime satisfy applicable public participation requirements under state law given EPA’s Phase II framework. |
| Whether New York law (ECL) requires greater review or procedures than EPA’s Phase II rules for SPDES general permits | NRDC: ECL and CWA mandate sufficient pre-coverage substantive review and public hearing opportunities; state cannot adopt a scheme that effectively abdicates substantive oversight. | DEC: ECL amendments expressly authorize general permits; legislature intended administrative streamlining; DEC’s approach is within statutory authority and consistent with legislative intent to conserve resources. | Held: Affirmed DEC. Court concluded ECL permits general permitting without imposing individual-permit procedures and upheld DEC’s statutory construction and discretion. |
| Whether federal precedents require state agency to depart from EPA’s Phase II approach because of circuit-court decisions (i.e., EDC) | NRDC: Ninth Circuit (EDC) found Phase II rules unlawful in part and required more review; that reasoning should control and New York must provide pre-coverage substantive review and hearing opportunities. | DEC: There is a circuit split (e.g., Seventh Circuit disagrees); DEC must follow EPA’s valid regulations unless and until federal courts or EPA change them; state courts should not re-litigate EPA’s national rulemaking. | Held: Affirmed DEC. The Court acknowledged the circuit split but declined to invalidate DEC’s compliance with EPA rules; resolution of the federal split rests with federal courts/EPA. |
Key Cases Cited
- Environmental Defense Ctr., Inc. v. United States Envtl. Protection Agency, 344 F.3d 832 (9th Cir. 2003) (held that EPA’s Phase II rule improperly allowed general-permit coverage without meaningful review of NOIs in violation of CWA duties)
- Texas Ind. Producers & Royalty Owners Assn. v. Environmental Protection Agency, 410 F.3d 964 (7th Cir. 2005) (upheld EPA’s view that NOIs are not equivalent to individual permit applications and that individualized hearings on NOIs are not required)
- Waterkeeper Alliance, Inc. v. United States Envtl. Protection Agency, 399 F.3d 486 (2d Cir. 2005) (invalidated portions of a different EPA rule and is relevant to judicial review of agency permitting approaches)
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (establishes the two-step framework for judicial deference to reasonable agency interpretations of ambiguous statutes)
- South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) (discusses NPDES permits as site-specific instruments imposing effluent limits and regulatory obligations)
- EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200 (1976) (describes how NPDES permits translate statutory effluent limitations into enforceable obligations for permittees)