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General Permit System by Which Smaller Communities Obtain Authorization to Discharge Stormwater Does Not Violate Federal or State Law

The Court of Appeals, in a full-fledged opinion by Judge Read, over a three-judge partial dissent, determined that the system by which smaller municipalities can obtain authorization for stormwater discharge without a public hearing did not violate federal or state law. The court's own overview of this very complex opinion provides the best summary:

Runoff from rain and snow melt courses over roofs, roads, driveways and other surfaces, picking up pollutants along the way. It then passes through municipal storm sewer systems into rivers and lakes, adding the pollutants accumulated during its journey to those bodies of water. These municipal storm sewer systems thus differ from other entities that discharge effluents into our State's surface waters (for example, industrial or commercial facilities and sewage treatment plants) in three major ways: precipitation is naturally occurring, intermittent and variable and cannot be stopped; although municipalities operate sewer systems, stormwater contamination results from the often unforeseen or unpredictable choices of individual residents and businesses (for example, to let litter pile up or to use certain lawn fertilizers), as well as decisions made long ago about the design of roads, parking lots and buildings; and because stormwater runoff flows into surface waters through tens of thousands of individual outfalls, each locality's contribution to the pollution of a particular river or lake is difficult to ascertain or allocate through numeric limitations.

Federal and state law prohibit discharges of stormwater from New York's municipal separate storm sewer systems in urbanized areas (referred to as MS4s) without authorization under a State Pollutant Discharge Elimination System (SPDES) permit. As an alternative to an individual SPDES permit, municipal separate storm sewer systems that serve a population under 100,000 (or small MS4s) may seek to discharge stormwater under a SPDES general permit. The 2010 General Permit — the subject of this lawsuit — requires these municipal systems to develop, document and implement a Stormwater Management Program (SWMP) in compliance with detailed specifications developed by the New York State Department of Environmental Conservation (DEC or the Department) to limit the introduction of pollutants into stormwater to the maximum extent practicable. To obtain initial coverage (i.e., authorization to discharge) under the terms of the 2010 General Permit, small MS4s must first submit a complete and accurate notice of intention (NOI) to DEC.

After the 2010 General Permit took effect on May 1st of that year, the Natural Resources Defense Council, Inc. (NRDC) and seven other environmental advocacy groups (collectively, NRDC) brought this hybrid CPLR article 78 proceeding/declaratory judgment action against DEC to challenge certain aspects of the 2010 General Permit. NRDC claims generally that by allowing small MS4s to gain coverage under the 2010 General Permit based upon an NOI reviewed only for completeness and not subject to an opportunity for a public hearing, DEC has created an “impermissible self-regulatory system” that fails to force local governments to reduce the discharge of pollutants to the maximum extent practicable — the statutory standard — and violates federal and state law [FN2]. Equating NOIs with applications for individual SPDES permits, Supreme Court granted partial relief to NRDC (35 Misc 3d 652 [Sup Ct Westchester County 2012]). The Appellate Division, as relevant here, rejected NRDC's federal and state law challenges to the 2010 General Permit (120 AD3d 1235 [2d Dept 2014]). We granted NRDC leave to appeal (23 NY3d 901 [2014]), and now affirm. Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation, 2015 NY Slip Op 03766, CtApp 5-7-15

 

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