U.S. v. City of New York

• Citation: 96 F.Supp.2d 195
• Decision Date: 12 May 2000
• Docket Number: No. 99 CV 6224 NG SMG.,No. 99 CV 7399 NG SMG.,No. 97 CV 2154 NG SMG.,97 CV 2154 NG SMG.,99 CV 6224 NG SMG.,99 CV 7399 NG SMG.
• Parties: UNITED STATES of America, Plaintiff, State of New York and Barbara Debuono, M.D., as Commissioner of the New York Department of Health, Plaintiffs-Intervenors, v. CITY OF NEW YORK and New York City Department of Environmental Protection, Defendants. Norwood Community Action, Lina Burger, and Fay Muir, Plaintiffs, v. Department of Environmental Protection, Department of Citywide Administrative Services, City Planning Commission, and City of New York, Defendants. Friends of Van Cortlandt Park and the Parks Council, Inc., Plaintiffs, v. City of New York, New York City Department of Environmental Protection, New York City Planning Commission, New York City Council, New York City Department of Parks & Recreation, Rudolph W. Giuliani, Joel A. Miele, Sr., and Henry Stern, Defendants.
• Court: U.S. District Court — Eastern District of New York

96 F.Supp.2d 195

UNITED STATES of America, Plaintiff, State of New York and Barbara Debuono, M.D., as Commissioner of the New York Department of Health, Plaintiffs-Intervenors, v. CITY OF NEW YORK and New York City Department of Environmental Protection, Defendants.

Norwood Community Action, Lina Burger, and Fay Muir, Plaintiffs, v. Department of Environmental Protection, Department of Citywide Administrative Services, City Planning Commission, and City of New York, Defendants.

Friends of Van Cortlandt Park and the Parks Council, Inc., Plaintiffs, v. City of New York, New York City Department of Environmental Protection, New York City Planning Commission, New York City Council, New York City Department of Parks & Recreation, Rudolph W. Giuliani, Joel A. Miele, Sr., and Henry Stern, Defendants.

No. 97 CV 2154 NG SMG.

No. 99 CV 6224 NG SMG.

No. 99 CV 7399 NG SMG.

United States District Court, E.D. New York.

May 12, 2000.

COPYRIGHT MATERIAL OMITTED

Eliot Spitzer, Attorney General of the State of New York, New York State Department of Law, Environmental Protection Bureau, New York City, for plaintiff-intervenor State of New York; Gordon J. Johnson (GJ 7379), Norman Spiegel (NS 5619), Assistant Attorneys General, of counsel.

Jack L. Lester, New York City, for plaintiffs Norwood Community Action, Lina Burger, Fay Muir.

Schulte Roth & Zabel LLP, New York City, for plaintiff Friends of Van Cortland Park and Parks Council, Inc.; Howard B. Epstein, (HB 8484), Theodore A. Keyes, (TK 8484), Peter C. Trimarchi, (PT 4208), Jess Velona, (JV 6027), of counsel.

Michael D. Hess, Corporation Counsel of the City of New York, New York City, for defendants City of New York, and New York City Dept. of Environmental Protection; Inga Van Eysden (IV3570), of counsel.

Michael D. Hess, Corporation Counsel of the City of New York, New York City, for Defendants City of New York, New York City Dept. of Environmental Protection, New York City Planning Comm'n, New York City Council, New York City Dept. of Parks & Recreation, Rudolph W. Giuliani, Joel A. Miele, Sr., and Henry J. Stern; Inga Van Eysden, of counsel.

OPINION AND ORDER

GERSHON, District Judge.

On November 24, 1998, I approved a Consent Decree resolving claims brought by the United States, acting on behalf of the Environmental Protection Agency ("EPA"), and the State of New York against the City of New York to require the City to provide filtration and disinfection treatment for its Croton Water Supply System. United States v. City of New York, 30 F.Supp.2d 325 (E.D.N.Y.1998). The Consent Decree enforces compliance by the City with federal and state requirements that it filter and disinfect the water, requirements with which the City had previously failed to comply despite its agreement to do so.

The Consent Decree establishes detailed "milestones" that the City must satisfy in order to fulfill its obligation to plan, design, construct and operate a Water Treatment Plant ("WTP") at a site selected by the City after its completion of an environmental review. The Consent Decree requires the parties to attempt to resolve disputes arising under it, and the court retains jurisdiction to determine unresolved disputes. The Consent Decree further requires the City to diligently seek removal to this court and to defend against any action which might delay performance of any of the milestones.

The actions presently before me, which were argued together, arise out of the City's selection of the Mosholu Golf Course site in Van Cortlandt Park in the Bronx as the location for construction and operation of the WTP. The City's plan calls for the plant to be built under a golf driving range presently on the site. The driving range will be demolished during construction and then rebuilt after the gradient of the parkland is altered to accommodate the WTP, under the City's plan. In 97 CV 2154, the action which was resolved by the Consent Decree, the State of New York, through its Attorney General ("AG"), seeks relief under the dispute resolution provision of the Consent Decree, claiming that both the WTP itself, and the disruption entailed for its construction, involve alienation of parkland and that, as a result, the City is required to seek the approval of the State Legislature for the proposed project. Since the City has not sought such approval, the AG asserts that the City has failed to meet its milestone obligations to request and obtain State legislative approval by specific dates that have now passed. The City disputes the AG's contention that State legislative approval is required to undertake the project as it has been designed.

The other two actions, 99 CV 6224 ("Norwood") and 99 CV 7399 ("Friends"), were instituted by community groups and concerned citizens as proceedings in New York State Supreme Court, Bronx County, under Article 78 of the New York CPLR and for declaratory and injunctive relief, seeking to annul the City's selection of the Mosholu Golf Course site for construction of the WTP. Without objection, the City has removed both actions to this Court pursuant to the Consent Decree. The plaintiffs in both Norwood and Friends, like the AG, argue that the City was required to obtain State legislative approval for construction of the WTP at the chosen site. Friends also argues that an amendment of the New York City Zoning Resolution was required before the City could lawfully undertake this project in a park. Friends further argues that the approvals of the project by the responsible City agencies were invalid because the City failed to adequately address and resolve the issues of need for legislative approval and a zoning amendment, and because the City's environmental review failed to give adequate consideration to preservation of the Clubhouse of the Mosholu Golf Course, which, under the City's plan, will be demolished during excavation of the WTP site, and replaced by a replica when construction is completed. The City has moved for summary judgment in Norwood and Friends, and the plaintiffs in Friends have cross-moved for partial summary judgment on the park alienation and zoning amendment issues.

All parties agree that there are no disputes of material fact and no need for discovery on the issues of whether State legislative approval or amendment of the Zoning Resolution are required, which present questions of law, and Friends identifies only a narrow area of possible factual dispute in the remainder of its claims. For the reasons that follow, the State's application under the Consent Decree is denied, the City's motions for summary judgment in Norwood and Friends are granted, and the cross-motion by plaintiffs in Friends for partial summary judgment is denied.

BACKGROUND

The background of the Croton Water Supply System, the statutory and regulatory requirements, federal and state, applicable to ensuring a safe drinking water supply, the events leading up to the action by the United States and the State to enforce compliance with the requirement of filtration of the Croton Watershed, and the salient terms of the Consent Decree, are described in my prior opinions approving the Consent Decree, 30 F.Supp.2d 325 (E.D.N.Y.1998), and denying certain motions to intervene, 179 F.R.D. 373 (E.D.N.Y.1998), and the opinion of the Second Circuit affirming denial of intervention, 198 F.3d 360 (2d Cir.1999). It is therefore necessary only to summarize some of these facts in this opinion.

The Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300g-1 et seq., and the Surface Water Treatment Rule ("SWTR") promulgated by the EPA thereunder, 40 C.F.R. §§ 141.70-75, effectively mandated filtration of public water systems using surface water, with limited exceptions. In 1992, the State Sanitary Code ("SSC") was amended to comply with the federal requirements.

The Croton Watershed is one of three principal areas supplying drinking water to the City and surrounding communities; the others, the Delaware and Catskill Watersheds, are located in more remote and less developed regions than Croton. The Catskill and Delaware Watersheds so far have been permitted to avoid filtration. The Croton Watershed has an area of 375 square miles, primarily in Westchester, Dutchess and Putnam Counties of New York State. It normally supplies approximately ten percent of the City's water requirements, but can provide approximately thirty percent during a drought.

In 1991, a City report concluded that filtration treatment of water from the Croton Watershed would eventually be required to ensure its safety. In 1992, the City entered into a stipulation with the New York State Department of Health pursuant to which the City acknowledged that it was required by federal and state law to build a filtration plant for the waters of the Croton Watershed. On January 13, 1993, the EPA issued a determination requiring the City to filter and disinfect water from the Croton Watershed. When the City failed to comply with the 1992 stipulation or the 1993 EPA ruling, the United States commenced an action in this Court in 1997, joined by the State and the State Department of Health as intervenors, to compel compliance with federal and state laws and regulations governing public water systems with respect to the Croton Watershed. The parties entered into settlement discussions under the supervision of Magistrate Judge Steven M. Gold, resulting in the proposed Consent Decree which I approved without modification after allowing for public comment on the proposed settlement and carefully considering the comments received.

The Consent Decree provides injunctive relief requiring the City to finish the planning, designing, construction and operation of the WTP at a site selected by the City after completing its environmental review. Under state and local law, any environmental review must comply with the requirements of the State Environmental Quality Review Act ("SEQRA"), N.Y. Environmental Conservation Law §§ 8-0101 et seq.,...