111 A.D.3d 737
N.Y. App. Div.2013Background
- Hybrid CPLR article 78 and declaratory judgment challenge to DEC GP-0-10-002 general permit for MS4 stormwater, issued May 1, 2010, expiring April 30, 2015.
- Petitioners allege the General Permit creates a self-regulatory scheme that fails to achieve maximum extent practicable reductions under 33 USC 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c).
- Alleged defects include lack of explicit compliance schedules under 6 NYCRR 750-1.14 and failure to provide public hearings on notices of intent under 33 USC 1342(a)(1) and ECL 17-0805(1)(a)(ix).
- Supreme Court entered a mixed ruling (Jan. 10, 2012; amended Apr. 18, 2012) in favor of petitioners on some points and in favor of DEC on others, and directed revisions to the General Permit.
- DEC appealed the adverse rulings; petitioners cross-appealed the remainder.
- Court proceeds to review whether the General Permit conforms to federal/state stormwater framework and DEC authority; DEC challenge centers on whether the permit improperly delegates regulatory review or public participation requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Maximum extent practicable standard compliance | Petitioners: GP-0-10-002 creates self-regulation, failing MTPr. | DEC: Permit aligns with EPA framework; MTPr achievable through BMPs and DEC review. | General Permit satisfies MTPr standard; not an impermissible self-regulatory system. |
| Compliance schedules and water quality timelines | Petitioners: Lacks mandated schedules per 6 NYCRR 750-1.14. | DEC: Permit framework provides enforceable controls and schedules as applicable. | Permit does not violate 6 NYCRR 750-1.14. |
| Public hearing opportunities for NOI before submission | Petitioners: Public hearings missing prior to NOI submission. | DEC properly limits hearings to certain permit actions; deference to agency interpretation. | DEC not required to provide additional public hearings; interpretation upheld under Chevron. |
| Definition of 'permit application' and public participation scope | Petitioners: DEC misreads permit application scope to limit participation. | DEC's interpretation reasonable; Chevron deference applies. | DEC interpretation sustained; no arbitrary or capricious error. |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S. 1984) (administrative deference to agency interpretations of statutes)
- Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (N.Y. 2007) (Chevron deference; statutory interpretation by agencies)
- 427 W. 51st St. Owners Corp. v. Division of Hous. & Community Renewal, 3 N.Y.3d 337 (N.Y. 2004) (agency interpretations and due process considerations)
- Texas Indus. Producers & Royalty Owners Assn. v. Environmental Protection Agency, 410 F.3d 964 (5th Cir. 2005) (permissible scope of public hearings for general permits)
- Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (N.Y. 2007) (statutory interpretation in regulatory permitting)