120 A.D.3d 1235
N.Y. App. Div.2014Background
- DEC issued SPDES General Permit GP-0-10-002 (effective May 1, 2010) covering stormwater discharges from small municipal separate storm sewer systems (MS4s); permit set to expire April 30, 2015.
- Petitioners (NRDC and allied groups) brought a hybrid CPLR article 78 / declaratory judgment challenge seeking annulment of DEC’s approval and declarations that the General Permit violated several federal and state statutory provisions.
- Petitioners advanced four main claims: (1) permit fails to require MS4s to reduce pollutants to the "maximum extent practicable" (MEP); (2) permit fails to ensure compliance with state water quality standards; (3) permit fails to require monitoring; (4) permit denied required public participation (hearings) on Notices of Intent (NOIs).
- Supreme Court (trial court) ruled for petitioners on the MEP and public‑hearing claims and annulled DEC’s approval in part; it ruled for DEC on the water quality, monitoring, and other public‑participation claims.
- Appellate Division, on reargument, reversed the trial court as to the MEP and NOI‑hearing rulings (finding DEC’s approach lawful), affirmed as to the other rulings for DEC, and remitted for entry of an amended judgment dismissing the challenged portions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the General Permit creates an impermissible self‑regulatory system that fails to require MS4s to reduce pollutants to the "maximum extent practicable" (MEP) | General Permit lets municipalities pick BMPs without meaningful DEC review, so coverage can be granted despite non‑MEP programs | Permit and DEC regulations allow review, rejection of incomplete NOIs, modification, and enforcement — DEC retains authority to ensure MEP | Held for DEC: General Permit consistent with MEP framework; DEC has adequate review/enforcement tools so no systemic self‑regulation problem |
| Whether DEC unlawfully denied opportunity for public hearings on proposed NOIs (i.e., whether NOI is a "permit application" triggering hearings) | NOI is a permit application; each NOI should trigger public‑hearing opportunity before DEC acceptance | "Permit application" may be limited to new/renewed general permits or individual permit applications; DEC’s interpretation entitled to deference; public input at general permit stage adequate | Held for DEC: DEC’s interpretation reasonable; public participation at permit issuance/renewal suffices; no required hearings for each NOI |
| Whether General Permit violates state water quality standards or effluent‑limitation requirements | (Cross‑appeal) Permit methods insufficient to assure compliance with state water quality standards and numeric limits | Congress crafted distinct regime for municipal storm sewers that requires MEP (not numeric effluent limits); states have discretion to implement controls to meet standards | Held for DEC: Permit not contrary to state water quality statutes; municipal permits governed by MEP framework and state/EPA discretion |
| Whether General Permit fails to require monitoring (statutory monitoring obligations) | Permit lacks required monitoring provisions for MS4 discharges | Permit and statutes allow state discretion; monitoring is not statutorily mandated in same manner as for industrial dischargers | Held for DEC: No violation; DEC’s scheme consistent with statutory framework and agency discretion |
Key Cases Cited
- Environmental Defense Ctr., Inc. v. Environmental Protection Agency, 344 F.3d 832 (9th Cir.) (discusses limits of general permit and review of NOI process)
- Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486 (2d Cir.) (addresses NPDES general permit issues for MS4s)
- Texas Independent Producers & Royalty Owners Ass'n v. Environmental Protection Agency, 410 F.3d 964 (5th Cir.) (interpretation of what constitutes a "permit application")
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (supreme court) (agency interpretations entitled to deference when reasonable)
- Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (N.Y.) (deference to agency statutory interpretation)
- Matter of 427 West 51st St. Owners Corp. v. Division of Housing & Community Renewal, 3 N.Y.3d 337 (N.Y.) (agency interpretation and deference principles)
- O'Hara v. Del Bello, 47 N.Y.2d 363 (N.Y.) (procedural authority for courts to decide legal issues on summary judgment record)
- Paramount Communications v. Gibraltar Casualty Co., 90 N.Y.2d 507 (N.Y.) (principles on statutory interpretation and agency discretion)