Riverkeeper, Inc. v. N.Y. State Dep't of Envtl. Conservation

• Decision Date: 07 July 2022
• Docket Number: 533206
• Citation: 207 A.D.3d 832,172 N.Y.S.3d 755
• Parties: In the Matter of RIVERKEEPER, INC., Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 832
172 N.Y.S.3d 755

In the Matter of RIVERKEEPER, INC., Appellant,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.

533206

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 31, 2022
Decided and Entered: July 7, 2022

172 N.Y.S.3d 756

Pace Environmental Litigation Clinic, Inc., White Plains (Todd D. Ommen of counsel), for appellant.

Letitia James, Attorney General, Albany (Elizabeth A. Brody of counsel), for respondent.

Sylvia O. Hinds–Radix, Corporation Counsel, New York City (Nathan Taylor of counsel), for City of New York, amicus curiae.

Before: Garry, P.J., Egan Jr., Clark, Aarons and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

172 N.Y.S.3d 757

Appeal from a judgment of the Supreme Court (Bartlett III, J.), entered March 21, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a rule promulgated by respondent.

The Clean Water Act (hereinafter CWA) was enacted "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" ( 33 USC § 1251 [a]). In passing the act, Congress expressly outlined a number of goals, including to have fishable and swimmable waters wherever attainable by 1983 (see 33 USC § 1251 [a][2]). To that end, each state must establish water quality standards (see 40 CFR 131.3 [i]; 131.4[a]), subject to Environmental Protection Agency (hereinafter EPA) approval (see 40 CFR 131.5, 131.21 [c][2]), that include appropriate water use designations and water quality criteria sufficient to protect those uses (see 40 CFR 131.6 [a], [c]; 131.10). If a state wishes to amend its standards to remove a "[d]esignated use[ ]" ( 40 CFR 131.3 [f]), it must follow certain procedures, including conducting a "use attainability analysis" to demonstrate that attaining the use is not feasible ( 40 CFR 131.10 [j]; see 40 CFR 131.3 [g]; 131.10[g]).

To implement this federal mandate and comply with state law (see ECL 17–0301 ), respondent has promulgated an extensive classification system for all surface waters and groundwaters in the state (see generally 6 NYCRR part 701), assigning each classification one or more "[b]est usages" ( 6 NYCRR 700.1 [a][5]). This ligation involves Class I and Class SD saline surface waters in the New York City area. At all relevant

207 A.D.3d 833

times, the best usages of Class I waters have included secondary contact recreation, such as boating, and fishing (see 6 NYCRR 701.13 ; see also 6 NYCRR 700.1 [a][56]), and fishing has been the best usage of Class SD waters (see 6 NYCRR 701.14 ). Respondent also imposes additional measures under state law to improve water quality beyond the best usage(s) assigned to a given classification by what it refers to as "suitability goals." Historically, Class I waters have had the goal of being suitable for fish, shellfish and wildlife propagation and survival (see 6 NYCRR 701.13 ). Class SD waters have been required to be suitable for fish, shellfish and wildlife survival (see 6 NYCRR 701.14 ).

In 2015, respondent proposed a rule to amend this state's water quality standards for Class I and Class SD waters, indicating that the need for such action was to meet the CWA's swimmable goal and avoid the EPA imposing the goal itself through federal regulations (see N.Y. Reg, Dec. 3, 2014 at 17–19; see generally 33 USC § 1313 [c][3], [4]; 40 CFR 131.22 ). The proposed rule would accomplish this by adding language to the rules for Class I and Class SD waters requiring that those waters be "suitable for primary contact recreation," such as swimming ( 6 NYCRR 700.1 [a][49]), "although other factors may limit the use for this purpose" (N.Y. Reg, Dec. 3, 2014 at 17; see 6 NYCRR former 701.13, 701.14), and by adopting corresponding water quality criteria for total and fecal coliforms (see N.Y. Reg, Dec. 3, 2014 at 17; see also 6 NYCRR 703.4 [a], [b]).

After the proposed rule was adopted (see N.Y. Reg, Nov. 4, 2015 at 15), respondent submitted its amended rule to the EPA for review. The EPA approved respondent's suitability language but took no action with respect to respondent's revisions

172 N.Y.S.3d 758

to the total and fecal coliform standards, stating that the revised standards did not meet modern requirements for primary contact recreation waters and indicating that the state was expected to adopt scientifically supportable standards for all primary contact waters in the state, including Class I and Class SD waters, as soon as possible. While discussions between respondent and the EPA on this issue were ongoing, petitioner and several other advocacy groups commenced a proceeding in federal court against the EPA and others, seeking, among other things, to compel the EPA to issue a formal determination on respondent's revised water quality standards.¹ The EPA subsequently issued a formal disapproval, reiterating that, because respondent had amended its rules for Class I and Class

207 A.D.3d 834

SD waters to include the designated use of primary contact recreation, its revised water quality criteria were not protective enough.

Respondent later requested that the EPA reconsider its disapproval, urging that the EPA had misinterpreted the impact of respondent's 2015 rulemaking. Respondent explained that, where the CWA uses "designated usage," respondent uses "best usage" and, because respondent had not made primary contact recreation a "best use" for Class I and Class SD waters, adoption of more stringent water quality criteria was not necessary. Respondent indicated that, by adding...