Catskill Chapter, Trout Unlimited v. Nyc, Docket No. 03-7203(L).

Citation451 F.3d 77
Decision Date13 June 2006
Docket NumberDocket No. 03-7203(L).,Docket No. 03-7253(XAP).
PartiesCATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs Of Ulster County, Inc. and Riverkeeper, Inc., Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK and New York City Department of Environmental Protection, Defendants-Third-Party-Plaintiffs-Appellants-Cross-Appellees, Joel A. Miele, Sr., Commissioner of the Department of Environmental Protection, Defendant-Appellant-Cross-Appellee, v. State of New York, New York State Department of Environmental Conservation, and Erin M. Crotty, Commissioner of the New York State Department of Environmental Conservation, Third-Party-Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Karl S. Coplan, Pace Environmental Litigation Clinic, Inc. (Kara E. Murphy, Legal Intern, on the brief), White Plains, NY, for Plaintiffs-Appellees-Cross-Appellants.

Hilary Meltzer, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, William S. Plache, on the brief), New York, NY, for Defendants-Third-Party-Plaintiffs-Appellants-Cross-Appellees.

James M. Tierney, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Michelle Aronowitz, Deputy Solicitor General, Peter H Lehner, Chief, Environmental Protection Bureau, Gordon J. Johnson, Deputy Bureau Chief, Robert H. Easton, Assistant Solicitor General, on the brief), Albany, NY, for Third-Party-Defendants-Appellees.

Before WALKER, Chief Judge, OAKES and JACOBS, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

The City of New York ("the City") operates the Shandaken Tunnel ("Shandaken Tunnel" or "the Tunnel") as part of its water-management system that delivers drinking water to New York City and the immediate surrounding area. Water from the Tunnel, which is high in turbidity, discharges into the Esopus Creek ("Esopus Creek" or "the Creek"), a trout stream used for flyfishing and other recreational activities. The Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs of Ulster County, Inc., and Riverkeeper, Inc. (collectively "Catskills") brought a citizen suit against the City, alleging that the City's use of the Tunnel without a permit violated the Clean Water Act ("CWA" or "Act"), 33 U.S.C. §§ 1251 et seq. In an October 21, 2001, opinion, we held that the CWA permit requirements apply to the Shandaken Tunnel discharges and remanded to the district court. On remand, the district court assessed a $5,749,000 civil penalty against the City and ordered the City to obtain a permit for the operation of the Tunnel. This appeal followed.

BACKGROUND
I. Relevant Clean Water Act Provisions

The purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). As part of the program to achieve this goal, the Act states that "the discharge of any pollutant by any person shall be unlawful," id. § 1311(a), unless it is done in compliance with other provisions of the Act. One of those other provisions, the National Pollutant Discharge Elimination System ("NPDES"), id. § 1342(a), establishes a permit system. Under this provision, the Environmental Protection Agency ("EPA") or state administrators may issue a permit for the discharge of a pollutant at levels below the effluent limitations specified in the permit. Id. The CWA broadly defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12).

Although the CWA establishes this federal permitting scheme, the Act also recognizes that states retain the primary role in planning the development and use of land and water resources, id. § 1251(b), allocating quantities of water within their jurisdictions, id. § 1251(g), and regulating water pollution, as long as those state regulations are not less stringent than the requirements set by the CWA, id. § 1370.

II. The Shandaken Tunnel and the Esopus Creek

As part of the water system that supplies New York City with its drinking water, the City maintains the Schoharie Reservoir in the Catskill Mountains. To deliver this water eventually to New York City, water from the Schoharie Reservoir is diverted through the eighteen-mile Shandaken Tunnel and discharged into the Esopus Creek. The Creek's water, in turn, flows into the Ashokan Reservoir, through the Catskill Aqueduct, to a series of reservoirs and tunnels along the east side of the Hudson River, and eventually to New York City. Absent the man-made diversion through the Tunnel, water from the Schoharie Reservoir would never reach the Esopus Creek. Catskill Mountains Ch. of Trout Unltd. v. City of New York, 273 F.3d 481, 484 (2d Cir.2001) ("Catskills I").

Because water in the Schoharie Reservoir contains suspended solids from both natural and man-made causes, discharges from the Tunnel into the Creek are more turbid1 than the waters of the Esopus. This turbidity impairs use of the Esopus for fly fishing and other recreational activities. Pursuant to state regulations, the City has been studying ways to reduce the turbidity in the water discharged from the Tunnel but so far has failed to find a way to do so. Until this lawsuit, neither the EPA nor the New York State Department of Environmental Conservation ("NYDEC"), the agency that enforces the CWA in New York State, had ever regulated the turbidity in the Tunnel under the CWA's permitting scheme.

III. Procedural History

In March 2000, Catskills, recreational users of the Esopus Creek, brought this citizen suit under the CWA alleging that the City's discharge of turbid water from the Tunnel violated 33 U.S.C. § 1311(a), which, as we said, prohibits "the discharge of any pollutant" without a discharge permit. The district court dismissed the claim on the pleadings, holding that the discharge from the Tunnel did not constitute an "addition" of a pollutant to the Creek under 33 U.S.C. § 1362(12).

In October 2001, we reversed after concluding that the discharge of water containing pollutants from one distinct water body into another is an "addition of [a] pollutant" under the CWA. Catskills I, 273 F.3d at 491-93. As a result, we determined that the discharge from the Tunnel into the Creek requires a permit.

On remand from Catskills I, the district court granted summary judgment to the plaintiffs and went on to determine the civil penalties to be assessed against the City. The district court concluded that no penalties should be imposed for the City's actions prior to June 22, 2002, eight months after Catskills I put the City on notice that it needed a permit for the Shandaken discharges. Finding a delay of more than eight months unreasonable, however, the district court imposed the maximum penalty for the period from June 22, 2002, to December 31, 2002, when the City filed its permit application; the penalty totaled $5,749,000. This appeal followed.

DISCUSSION

In this appeal, the City asks us to reconsider our holding in Catskills I that the discharge of turbid water from the Shandaken Tunnel into the Esopus Creek requires a permit. The City also argues that the penalty of $5,749,000 is too high. In a cross-appeal, Catskills argues that amount is too low.

We are free to reconsider our holding in Catskills I if there are cogent, compelling reasons for doing do, such as a change in controlling law or newly discovered facts. United States v. Tenzer, 213 F.3d 34, 39 (2d Cir.2000). Determining whether we should reconsider requires briefly revisiting our reasoning in Catskills I.

I. Catskills I

In concluding that the transfer of turbid water from the Shandaken Tunnel to the Esopus Creek qualified as the "discharge of [a] pollutant," 33 U.S.C. § 1311(a), requiring an NPDES permit, Catskills I first noted the CWA's broad definition of the "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12). Because the Shandaken Tunnel "plainly qualifies as a point source," Catskills I, 273 F.3d at 493, our holding rested, in principal part, on the meaning of "addition," which the CWA leaves undefined. We decided that "addition" means the introduction into navigable water from the "outside world,"2 with the outside world being defined as "any place outside the particular water body to which pollutants are introduced." Id. at 491.

In reaching this result, we distinguished the "dams cases," on which the City relied. In National Wildlife Federation v. Gorsuch,3 693 F.2d 156 (D.C.Cir.1982), and National Wildlife Federation v. Consumers Power Co.,4 862 F.2d 580 (6th Cir. 1988), two sister circuits held that water taken from a water source and then released back into that same source was not an "addition" to navigable waters under the CWA, despite the fact that the water so released contained "pollutants." 693 F.2d at 183, 862 F.2d at 587. This case differed from the dams cases, we believed, because the Tunnel discharges water into the Creek from a source that is a different, distinct body of water. Catskills I, 273 F.3d at 491-92. In Catskills I, we analogized the dams cases to a soup ladle scooping soup out of a pot and returning it to that pot, a type of water transfer known as an intrabasin transfer. The Tunnel's discharge, in contrast, was like scooping soup from one pot and depositing it in another pot, thereby adding soup to the second pot, an interbasin transfer. Interbasin transfers, we held in Catskills I, constitute "additions," rendering the City's reliance on the dams cases misplaced. Id. at 492.

We also rejected the City's "unitary water" theory of navigable waters, which posits that all of the navigable waters of the United...

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