Natural Res. Def. Council, Inc. v. N.Y. State Dep't of Envtl. Conservation

• Citation: 13 N.Y.S.3d 272,25 N.Y.3d 373,34 N.E.3d 782,2015 N.Y. Slip Op. 03766
• Decision Date: 05 May 2015
• Docket Number: No. 48,48
• Parties: In the Matter of NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
• Court: New York Court of Appeals

25 N.Y.3d 373
34 N.E.3d 782
13 N.Y.S.3d 272
2015 N.Y. Slip Op. 03766

In the Matter of NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Appellants
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.

No. 48

Court of Appeals of New York.

May 5, 2015.

Lawrence M. Levine and Rebecca J. Hammer, Natural Resources Defense Council, Inc., New York City, and Super

Law Group, LLC, New York City (Reed W. Super of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York City (Barbara D. Underwood, Steven C. Wu and Bethany A. Davis Noll of counsel), for respondent.

Daniel E. Estrin, Pace Environmental Litigation Clinic, Inc., White Plains, for Nadia B. Ahmad and others, amici curiae.

Susan J. Kraham, Columbia Environmental Law Clinic, Morningside Heights Legal Services, Inc., New York City, for Citizens Campaign for the Environment, amicus curiae.

Rodenhausen Chale LLP, Rhinebeck (George A. Rodenhausen of counsel), for East of Hudson Coalition, amicus curiae.

Zachary W. Carter, Corporation Counsel, New York City (Amy McCamphill, Richard Dearing, Hilary Meltzer and Carrie Noteboom of counsel), for City of New York and others, amici curiae.

OPINION OF THE COURT

READ, J.

34 N.E.3d 783

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 intent (NOI) to DEC.

After the 2010 General Permit took effect on May 1st of that year,¹ the Natural

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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.² Equating NOIs with applications for individual SPDES permits, Supreme Court granted partial relief to NRDC (35 Misc.3d 652, 940 N.Y.S.2d 437 [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 A.D.3d 1235, 994 N.Y.S.2d 125 [2d Dept.2014] ). We granted NRDC leave to appeal (23 N.Y.3d 901, 987 N.Y.S.2d 1, 10 N.E.3d 189 [2014] ), and now affirm.

I.

Background

The NPDES and SPDES Programs

The Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92–500, 86 U.S. Stat. 816–904, codified as amended at 33 USC §§ 1251 –1388 ), popularly known as the Clean Water Act, ushered in the modern era of water pollution control whereby discharges of pollutants from “point sources” (i.e., “any discernible, confined and discrete conveyance” [33 USC § 1362(14) ] ) into the waters of the United States are prohibited except as authorized by a National Pollutant Discharge Elimination System (NPDES) permit issued by the Administrator of the United States Environmental Protection Agency (EPA or the Agency). “Generally speaking,” the statute envisaged

site-specific individual NPDES permits that “place[d] limits on the type and quantity of pollutants that can be released into the Nation's waters” (South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 [2004] ).

Although the federal government plays the dominant role in water pollution control under the Clean Water Act, states may continue their own water pollution control regulations as long as they are at least as stringent as federal law demands (33 USC § 1370 ). And importantly, states are allowed to administer the NPDES permit program for discharges into navigable waters within their borders, subject to the Administrator's approval (33 USC § 1342 [b] ). To attain this approval, a

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state must demonstrate that its permit program meets the requirements of the Clean Water Act and that the state possesses adequate legal authority to implement it (id. ). In 1973, the legislature amended the Environmental Conservation Law to create SPDES, New York's version of NPDES (see L. 1973, ch. 801 [adding a new title 8 to article 17 of the ECL and amending other provisions of article 17 to bring them into conformity with new title 8] ). EPA approved New York's SPDES program, which is administered by DEC, in 1975.

EPA's Stormwater Exemption

In its 1973 regulations implementing the NPDES program, EPA excluded discharges from a number of classes of point sources from the permit requirement, including separate storm sewers containing only storm runoff uncontaminated by any industrial or commercial activity (see 38 Fed. Reg. 18000 [July 5, 1973] [40 CFR former 124.11(f) ] ). EPA justified the exclusion as necessary to conserve its regulatory resources for more significant polluters. The United States Court of Appeals for the District of Columbia Circuit ruled that the Clean Water Act did not give EPA this option, but interpreted the statute to grant the Agency considerable leeway in setting permit terms (see Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1377 [D.C.Cir.1977] ). Noting its “sensitiv[ity] to EPA's concerns of an intolerable permit load,” the D.C. Circuit suggested that area or general permits would be a permissible and “well-established” device for coping with the avalanche of NPDES permit applications anticipated in the wake of its decision (id. at 1380–1381 ; see also Natural Resources Defense Council, Inc. v. Train, 396 F.Supp. 1393, 1402 [D.D.C.1975] [EPA has “substantial discretion to use administrative devices, such

as area permits,” to make its burden of permit issuance “manageable”] ).

The Water Quality Act

In the Water Quality Act of 1987 (Pub. L. 100–4, 101 U.S. Stat. 7, codified as amended in scattered sections of 33 USC) (the Water Quality Act), Congress endorsed permits for municipal stormwater discharges “issued on a system- or jurisdiction-wide basis” (33 USC § 1342 [p][3][B][i] ). These permits were mandated to “include a requirement to effectively prohibit non-stormwater discharges into the storm sewers,” and “controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants ” (id. § 1342 [p][3][B][ii], [iii] [emphasis added] ). The Water Quality Act did not define “maximum extent practicable,” but section 1342(p)'s text and legislative history indicate that Congress had in mind something other than conventional end-of-pipe control techniques and numeric effluent limits (see 132 Cong. Rec. S32381 [Oct. 16, 1986] [remarks of Senator Stafford, then Chairman of the Senate Environment and Public Works Committee] [“These permits will not necessarily be like...