164 A.D.2d 396 | N.Y. App. Div. | 1990
OPINION OF THE COURT
It is now well established in this State that respondent, acting upon an application for State water quality certification of a hydroelectric project as a prerequisite to the issuance of a Federal license therefor under the Federal Water Pollution Control Act (also known as the Clean Water Act; see, 33 USC § 1251 et seq.), is solely limited to determining whether applicable water quality standards will be met in both the construction and operation of the project. Respondent is not empowered to base its decision on a balancing of the need for the project against the adverse environmental impact (Matter
The facts in this lawsuit are as follows. In August and September 1987, petitioner applied for licensure of four hydroelectric projects by the Federal Energy Regulatory Commission (hereinafter FERC) to be constructed, operated and maintained (see, 18 CFR 4.38) at four different locations on the Oswego River in Oswego County.
Commencing in December 1987, respondent answered each of the four applications in four lengthy letters covering all aspects of each proposed project pursuant to 18 CFR 4.38. In each letter respondent stated that, in general, it did not object to the projects, which would replace and upgrade existing generating facilities, provided the additional information requested was furnished. Each letter further stated that the operation of the projects without provision for continued spillage would not contravene applicable water quality standards, but each went on to state that respondent was concerned with site-specific water quality impacts, such as temperature and dissolved oxygen in the bypass section resulting from the construction and operation of the project. Respondent clearly stated that any license would require submission
On August 26, 1988, respondent issued denial letters for each application, without prejudice, based upon petitioner’s failure to respond to any of its requests for the additional information required to enable evaluation of and determinations on each of the four applications for certification. Response from petitioner came, for the first time, in the form of this CPLR article 78 proceeding.
Supreme Court granted petitioner’s request to annul the determinations as arbitrary and capricious and unlawful, upon the finding that respondent could not look beyond issues of water quality on applications for certifications under 33 USC § 1341. Holding that respondent had already found that the projects, when operational, would not adversely affect water quality, Supreme Court directed respondent to issue the certificates. This appeal by respondent ensued.
Initially, we reject respondent’s threshold argument that Supreme Court lacked jurisdiction to review the four denials of water quality certificates because those denials were nonfinal and thus not ripe for judicial review (see, CPLR 7801 [1]). Respondent’s answer does not assert as a defense that the matter is not justiciable for failure to exhaust administrative remedies (see, Matter of Parent Teacher Assn. v Board of Educ., 138 AD2d 108, 111) and such argument was not raised before or reviewed by Supreme Court. Nevertheless, we recognize the exception to the general rule prohibiting matters being raised for the first time on appeal when the challenge is made upon jurisdictional objections (4 NY Jur 2d, Appellate Review, §§ 119, 120; see, Matter of Woodin v Lane, 119 AD2d 969; Strina v Troiano, 119 AD2d 566). While here there were no administrative hearings, respondent’s decision to deny the four applications, albeit without prejudice, had its impact upon petitioner at that point and was final and binding (see, Matter of Edmead v McGuire, 67 NY2d 714, 716). Other than by reapplication de novo, there was no way for petitioner to prevent or significantly ameliorate the certainty and immediacy of harm by further administrative action (see, Matter of Parent Teacher Assn. v Board of Educ., supra, at 112).
Respondent’s reliance upon Church of St. Paul & St. Andrew v Barwick (67 NY2d 510, cert denied 479 US 985) is misplaced. That case was an action for declaratory judgment brought under CPLR 3001 seeking a declaration that the New
Similarly, in Power Auth. v Department of Envtl. Conservation (379 F Supp 243), cited by petitioner, the complaint sought a mandatory injunction and declaratory relief alleging that respondent was without authority to hold hearings on the question of whether it should issue a certificate for water discharge from a proposed power plant (see, 33 USC § 1341 [a] [1]). The plaintiff there had moved for a preliminary injunction to prevent the hearings on the ground that the issue itemized for hearings had been preempted under the Federal statute by the exclusive jurisdiction of the Federal Power Commission (predecessor to FERC). District Court granted a cross motion to dismiss made by respondent, the defendant in that case, holding that "a case or controversy [did] not presently exist and a declaratory judgment should not be issued because the 'challenged governmental activity’ [was] only the right of a state administrative agency to hold hearings on matters it believes to be in its jurisdiction” (Power Auth. v Department of Envtl. Conservation, supra, at 248). Certification had neither been granted nor denied in that case, nor had any other action been taken that had any impact upon the pending license application made to the Federal Power Commission. Here, in contrast, respondent had actually denied the requests for the certificates, which would trigger FERC action, thereby placing petitioner’s license applications at risk. Since an actual, concrete injury to petitioner was immediate (see, Williamson Planning Commn. v Hamilton Bank, 473 US 172, 193), and for the reasons herein stated, we reject respondent’s argument that Supreme Court lacked jurisdiction.
Turning to the merits, we first recognize that since a public hearing had not been held, the appropriate standard for judicial review is whether respondent’s determinations were made in accordance with law, were arbitrary and capricious, or lacked a rational basis (see, Matter of Giles v State Div. of Human Rights, 166 AD2d 779, 780; see also, Matter of deRham v Diamond, 32 NY2d 34, 40).
Our analysis begins with review of the role that respondent plays in the licensing process. We note that 33 USC § 1341 (a) (1) prohibits the issuance of a license by FERC to construct a hydroelectric power plant to a facility which would result in a
The issue in this case thus distills to whether respondent’s considerations of water quality standards disregarded the very limited nature of the activity left by 33 USC § 1341 to State action in the certification process. Again, we find guidance in Matter of Power Auth. v Williams (60 NY2d 315, supra), where the Court of Appeals determined that: "The certification referred to in [33 USC § 1341], insofar as relevant * * * is simply of compliance with [33 USC § 1313], which provides for either State-adopted, Federally approved water quality standards or the promulgation of standards by the Federal Environmental Protection Agency. In the case of New York State, the standards adopted by [respondent] and Federally approved
Examination of the initial responses by respondent to the applications shows that the State expressed its concern about the "site specific water quality impacts, i.e. temperature and summertime dissolved oxygen (D.O.)”. Respondent stated that it was concerned that a proposed "no flow” scenario for an 800-foot reach of the natural riverbed 80% of the time for a normal hydrologic year would "result in the degradation of water quality * * * in particular, during the low-flow summer months when the river experiences high temperatures and low D.O. conditions”. Respondent also stated that it required additional information about the flow through the bypass for flushing purposes and that the application did not contain sufficient information to determine the flows necessary to maintain and enhance the fishery and associated aquatic resources. Respondent recommended that petitioner, along with the United States Fish and Wildlife Service and itself, conduct a study to be included as part of the application.
Thus, the letters clearly indicated that a review was in progress and that more information was required to complete the review. It cannot be said that respondent’s study, coupled with its consideration and response to the applications, was irrational, arbitrary or capricious since the components of water quality as expressed in the statute, regulations and cases, clearly included those factors upon which more information was requested and to which petitioner failed to respond. Of particular significance is the fact that petitioner never answered any of respondent’s letters or requests for informa
Finally, it is significant to note that petitioner could have objected to any of the requests made by respondent at the administrative level, but chose not to do so (see, Power Auth. v Department of Envtl. Conservation, 379 F Supp 243, 247, supra).
In sum, respondent’s determinations were rationally based and fully supported by the record. Supreme Court’s judgment annulling those determinations must therefore be reversed.
Mikoll, Levine, Mercure and Harvey, JJ., concur.
Judgment reversed, on the law, without costs, determinations confirmed and petition dismissed.
. Prior to applying for a Federal license to construct and operate a hydroelectric facility pursuant to 16 USC § 797 (e), an applicant must "consult with each appropriate Federal and state agency” (18 CFR 4.38 [a]). Federal regulations state that one of the "agencies to be consulted must include the appropriate certifying agency” under 33 USC § 1341 (18 CFR 4.38 [a]), which in New York is respondent (ECL 3-0301 [2] ¡j]). FERC is prohibited by 33 USC § 1341 (a) (1) from authorizing any facility which may discharge pollutants unless a State permit has been obtained or waived.
Under Federal regulations (18 CFR 4.38 [b] [1], [2], [3]), the prefiling consultation process consists of three stages. During the initial stage, an applicant contacts the appropriate Federal and State agencies and provides them with maps of the project area, a general engineering design, a summary of the operational mode, an identification of the affected environment and information about stream flow and the water regime (18 CFR 4.38 [b] [1]).
During the second stage of consultation, an "applicant must perform any reasonable studies that are necessary for [FERC] to make an informed decision regarding the merits of the application” (18 CFR 4.38 [b] [2]). The studies to be conducted include economic feasibility, the impact on "important natural or cultural resources”, suitable mitigation or those necessary to minimize impacts to a significant resource (18 CFR 4.38 [b] [2] [i] [D]). The applicant must also provide each agency with a copy of its draft application, study results and a written request for review and comment (18 CFR 4.38 [b] [2] [in]).
During the third stage of the consultation process, the applicant must document to FERC that "three requirements of all three stages of the consultation process have been fully satisfied” (18 CFR 4.38 [c]). This includes "[a]ny agency letters containing comments, recommendations, and proposed terms and conditions” (18 CFR 4.38 [c] [1]), as well as a copy of the water quality certification or a copy of the request for it and proof of "the date that the certifying agency received the request” (18 CFR 4.38 [c] [2] [ii]). If the certifying agency has failed to comment in a timely manner on a certificate request, the applicant must describe in detail its attempts to consult with that agency, the results of any partial consultations that occurred and any recommendations made by the agency (18 CFR 4.38 [d]). A certifying agency is deemed to have waived the certification requirements of the statute if it does not grant or deny water quality certifications within one year after the date the agency received the request for a permit (18 CFR (n. cont’d)
. The applications were:
1. FERC project No. 9851, known as Upper Fulton, filed August 28,1987.
2. FERC project No. 4668, known as High Dam, filed August 31,1987.
3. FERC project No. 4682, known as Minetto, filed September 8,1987.
4. FERC project No. 4685, known as Oswego, filed September 17,1987.
. The Court of Appeals in Matter of deRham was dealing with 33 USC former § 1171 (b), the predecessor statute to 33 USC § 1341. The former statute is now codified in substantially the same form in 33 USC § 1341 (a) (4).
. In Matter of deRham v Diamond (32 NY2d 34, supra), the Court of Appeals intimated that a proposed facility’s effect on fish life, salt water intrusion and possible thermal pollution are proper areas for review by respondent and are covered by "water quality”.