Town of Waterford v. Water Pollution Control Bd.
| Decision Date | 22 January 1959 |
| Citation | 156 N.E.2d 427,5 N.Y.2d 171,182 N.Y.S.2d 785 |
| Parties | , 156 N.E.2d 427 TOWN OF WATERFORD et al., Appellants, v. WATER POLLUTION CONTROL BOARD, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
John T. De Graff, Albany, George E. O'Connor, Waterford, and John A. Murray, Albany, for appellants.
Walter E. Burke, Corp. Counsel, Cohoes, amicus curiae, in support of appellants' position.
Timothy J. Fogarty, Corp. Counsel, Troy, amicus curiae, in support of appellants' position.
Louis J. Lefkowitz, Atty. Gen. (George H. Rothlauf and Paxton Blair, Albany, of counsel), for respondent.
In this article 78 proceeding, instituted pursuant to section 1244 of the Public Health Law, Consol.Laws, c. 45, the Town and the Village of Waterford, hereinafter called appellants, are challenging the right of the Water Pollution Control Board of this state, hereinafter called the Board, to classify the waters of that section of the Mohawk River Drainage Basin extending from its mouth to the first dam above Cohoes Falls as Class C waters.
Pursuant to a legislative mandate contained in subdivision 2 of section 1209 of the Public Health Law, the Board in 1950, after public hearings, adopted Classifications and Standards of Quality and Purity for the waters of the State (N.Y.Legis.Doc., 1951, No. 69, pp. 76-78; N.Y.Off.Comp. of Codes, Rules & Regulations, 6th Off.Supp., p. 208 et seq.). The system provides seven classes for fresh surface waters according, in essence, to the highest and best use to which the water may be put, and may be briefly summarized as follows:
Classes AA to D require sewage treatment; classes E and F do not. This classification system, which appellant does not challenge, was one of the initial steps (after a survey) in implementing the comprehensive program of water pollution control envisaged by the Water Pollution Control Act (Public Health Law, art. 12, §§ 1200-1263). The Act was enacted in 1949 (L. 1949, ch. 666) after three years of exhaustive studies and reports by a special legislative committee empowered to study the problem of water pollution throughout the State (N.Y.Legis.Docs., 1947, No. 59; 1948, No. 50; 1949, No. 51).
The broad policy underlying the Act is stated as a declaration of policy in section 1200:
'It is declared to be the public policy of the state of New York to maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of fish and wild life, including birds, mammals and other terrestrial and aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods to prevent and control the pollution of the waters of the state of New York.'
The purpose of the Act (§ 1201) is to safeguard the waters of the State by preventing new pollution and by abating existing pollution, and the Board, comprising the heads of five departments of the State Government, is given broad powers, duties and responsibilities in effecting these goals (§ 1208). Vested riparian rights are in no way involved. See People ex rel. Loomis v. Canal Appraisers, 33 N.Y. 461.
As already noted, the Board established a system of classification in 1950, and in implementing this system sections 1208 and 1209 envisaged a four-step procedure (N.Y.Legis.Doc., 1951, No. 69, pp. 73-74): (1) a survey of all the waters throughout the State; (2) the classification and assignment of appropriate quality standards to all such waters or segments thereof; (3) the development of comprehensive programs for the abatement of pollution which contravenes the standards established for such waters, and (4) the execution of these programs through cooperative endeavors so far as possible, or, if necessary, through the issuance and enforcement of orders requiring abatement of pollution.
In the instant case we are concerned with step 2 of this procedure, whereby a section of the Mohawk River not a 'mountain rill' bordering on the Town and the Village of Waterford was classified as C water. As a result of such classification, appellants, who for a long period had been discharging sewage into the river without any kind of treatment, may be required to cease such practice and eventually to construct sewage treatment facilities. They contend on this appeal that the C classification should be set aside for four reasons, which we shall discuss separately.
Their first contention is that in assigning the C classification to the waters involved, the Board failed to comply with section 1209 of the Public Health Law in that it failed to give any consideration to the fiscal and economic aspects of its classification. Section 1209, which recognizes that 'no single standard of quality and purity of the waters is applicable to all waters of the state or to different segments of the same waters', provides that the classification of waters made by the Board 'shall be made in accordance with considerations of best usage in the interest of the public and with regard to the considerations mentioned in subdivision three hereof' (emphasis supplied). Subdivision 3 reads as follows:
'In adopting the classification of waters and the standards of purity and quality above mentioned, consideration shall be given to:
'(a) the size, depth, surface area covered, volume, direction and rate of flow, stream gradient and temperature of the water;
'(b) the character of the district bordering said waters and its peculiar suitability for the particular uses, and with a view to conserving the value of the same and encouraging the most appropriate use of lands bordering said waters, for residential, agricultural, industrial or recreational purposes;
'(c) the uses which have been made, are being made or may be made, of said waters for transportation, domestic and industrial consumption, bathing, fishing and fish culture, fire prevention, the disposal of sewage, industrial waste and other wastes, or other uses within this state, and, at the discretion of the board, any such uses in another state on interstate waters flowing through or originating in this state;
'(d) the extent of present defilement or fouling of said waters which has already occurred or resulted from past discharges therein.'
Appellants insist that in deciding whether a particular classification is in the 'public interest' and encourages 'the most appropriate use of lands bordering the waters for 'residential' and 'industrial' purposes', the Board, in order to comply with the statute, must take into account the 'economic and fiscal' impact of the classification upon the municipalities affected. Appellants claim that if the C classification involved here is permitted to stand, they 'would be forced to levy a 150 per cent increase in taxes and be required to forego all other civic improvements for at least a generation'; this claim respondent denies. In other words, they maintain, as does Judge VAN VOORHIS, that in classifying the waters of this State 'to prevent and control the pollution' thereof (Public Health Law, § 1200) the Board's determination as to 'reasonable standards of purity' or impurity should depend not on to actual facts, but rather in some measure on how much it will cost to abate or prevent pollution. It is another way of saying that a physician may not diagnose a serious disease as such if the patient cannot afford the cost of cure.
The Appellate Division, in confirming the Board's determination, held that 'problems of municipal financing were not among the considerations contemplated by section 1209, subdivision 3, paragraph '(b)',' (4 A.D.2d 415, 164 N.Y.S.2d 919) and hance need not be considered by the Board in adopting a classification of particular waters. It found strong support for its position in the 1947, 1948 and 1949 reports of the Special Legislative Committee on Pollution Abatement, which led to the enactment of article 12 of the Public Health Law, and in section 1224 of the statute, which reads, in pertinent part, as follows:
(Emphasis supplied.)
Here, felt the court, was an express recognition in the statute itself of the fiscal problems involved in the abatement of water pollution and of the 'conflict between the factor of costs and the concept of public policy' which the Legislature 'determined to enunciate'.
We agree fully with the views expressed by the Appellate Division. There is nothing in the statute that requires the Board to consider probable costs or relative priorities as between municipal public works projects, at the time it adopts a classification for particular waters. Nowhere in section 1209, which sets out the criteria to govern a particular classification, is...
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