HUDSON RIVER FISHERMEN'S ASS'N v. CITY

The opinion of the court was delivered by: Brieant, Chief Judge.

MEMORANDUM AND DECISION

On April 11, 1989 the complaint in this action was filed as a "citizen suit" brought under Section 505 of the Clean Water Act 33 U.S.C. § 1365. Plaintiff seeks declaratory and injunctive relief to prevent the unlawful discharge by defendants without a permit, of pollutants into the West Branch Reservoir, a part of the Croton System, one of the three main water supply systems operated by the City of New York. The allegedly unlawful discharge, described in detail below, is claimed to arise from the intermittent emergency operation of the Chelsea Pumping Station at Chelsea, New York, on the east shore of the Hudson River.

The Court has subject matter jurisdiction over the claims set forth in the complaint pursuant to § 505(a)(1) of the Act, 33 U.S.C. § 1365(a)(1). The Croton River, on which the West Branch Reservoir is located, is conceded to be navigable waters of the State.*fn1 The statutory notice of violations and the intent to file suit has been complied with, and neither the Environmental Protection Agency (EPA) nor the New York Department of Environmental Conservation (DEC) has elected to commence or prosecute any enforcement action. Venue in this District is appropriate, and the standing of this plaintiff and its members to bring the litigation is not seriously disputed.*fn2 Members of the Association engage in sport fishing in the Croton River, including the West Branch Reservoir. A member also sells bait and supplies to sport fishermen. Furthermore, the operation of the Chelsea Pumping Station, dependent on the manner and timing of its operation, may have a deleterious effect on fishing conditions in the Hudson River. Were the operations at Chelsea required to obtain a NPDES-SPDES permit,*fn3 possible conditions of the permit most likely to limit the pollution of the West Branch Reservoir will also be most likely to limit the impact on the Hudson River of the withdrawal of water.

The water supply functions of the City of New York are now supervised and operated by the New York City Department of Environmental Protection, of which defendant Harvey W. Schultz is or was the Commissioner.

On November 30, 1989 the City of New York filed a third party complaint against the State of New York, specifically the State Department of Health, the New York State Disaster Preparedness Commission and David Axelrod, M.D. as Commissioner of the New York State Department of Health and Chairman of the New York State Disaster Preparedness Commission. Essentially, the third party complaint seeks declaratory relief with respect to the operation of the Chelsea Pumping Station in the event that plaintiff were to prevail, thereby subjecting the City to inconsistent directions if it were required to operate the Chelsea Pumping Station in compliance with emergency directives of the State defendants and at the same time were conceivably enjoined by this Court, at the behest of plaintiff, not to do so without an NPDES-SPDES permit.

Fully submitted before this Court are motions for summary judgment by the plaintiff and by the City defendants. The State defendants have taken no position. Although our discussion below, of necessity, makes some assumptions about the merits which are necessary to resolve a complex issue of statutory construction, the Court reminds the reader that this Court is not concerned with the propriety or possible adverse environmental effects of the operation of the Chelsea Pumping Station, nor with the appropriateness of the directions made by the State defendants as to when and how it shall be operated; rather this Court is concerned only with the issue of whether the City must apply for an NPDES-SPDES permit and prosecute such application diligently under penalty of having its continued operation of the Chelsea Pumping Station enjoined by this Court for violation of the federal Clean Water Act should it fail to do so.

The City of New York's Water System

The relevant facts are complex, but they are not seriously disputed. Our consideration of the matter requires an extensive description of the City of New York's water system and the threatened activities of its managers at the Chelsea Pumping Station.

The people of the City of New York have long enjoyed one of the safest and most reliable public water supply systems in the world. With 300 different locations for monitoring water quality and a distribution network stretching some 6,000 miles, the City's system provides fresh, potable water to more than half of the population of New York State. Surface water is impounded by the City of New York in three separate up-state reservoir systems; the Croton*fn4, the Catskill*fn5 and the Delaware*fn6 systems. The impounded water flows by gravity through three main aqueduct systems into balancing reservoirs and into the City distribution system. Four feeder tunnels in addition to the aqueducts connect the eighteen reservoirs which make up the New York City supply system. The Croton system supplies approximately ten per cent of the annual water needs of the population served, with the Catskill system providing forty per cent and the Delaware system fifty per cent.*fn7 The City's water supply system currently provides water for approximately 6.5 million people out of the 7 million people in New York City, and in addition, in compliance with the requirements imposed by the New York State Legislature, serves about 750,000 people in upstate New York.*fn8

Municipalities and water districts in the counties of Dutchess, Greene, Orange, Putnam, Schoharie, Ulster and Westchester are entitled to "tap in" to New York City's water supply system at locations approved by the City and receive water at cost pursuant to Title K, Chapter 51 of the Administrative Code of the City of New York, NYC Admin.Code Ch. 51 §§ K51-1.0 et seq., commonly known as the Water Supply Act, passed by the New York State Legislature.

The city's potable water shortage predates the Revolutionary War.*fn9 Since that time, an intricate water system has been carved out of the upstate region of New York State in an attempt to satisfy the ever increasing City needs. See Incorporated Village of Cornwall v. Environmental Protection Admin., 45 A.D.2d 297, 358 N YS.2d 459, 463, 464 (2d Dep't 1974). This was facilitated by the grant by the State to the City of the right to condemn real property in the upstate region. The Legislature, in granting the right of condemnation, however, conditioned it upon a concomitant right of accessibility to the water for local and preempted municipalities. Id. 358 N.Y.S.2d at 465. Thus, the Water Supply Act permits New York City to expand its water supply system into other counties but requires that the city provide water at cost to the municipalities and water districts within the counties where the city's facilities are located. Hazen and Sawyer, Delaware-Lower Hudson Region Water Resources Management Study 5-1 (DEC Publication September 1987).

Because of the dependence on impounded surface water, i.e. current rainfall, and because of its large population, the southern New York area is especially vulnerable to the effects of periods of drought. Ancient water mains continuously break and leak, and because of a secular change in the habits of persons using domestic water, per capita usage has increased significantly in the almost half century since the last major extensions to the New York City supply system were initiated.*fn10

The "safe yield" of a water system is a term of art which represents the gallons per day which can be produced throughout a twelve month period based upon a presumed reoccurrence of the worst case hydrological conditions on record. See Temporary State Commission on the Supply Needs of Southeastern New York, Local Government Conference 101-02 (December 1972). This assumption is essentially somewhat artificial, because the capacity of a reservoir cannot be drawn down to zero, and there is no assurance that the reservoirs would be full of water at the beginning of the period, as is assumed. Nevertheless, the mathematical exercise is a useful one.

If the precipitation patterns of 1964-65, the worst recorded year in more than a century, were to be repeated, the City water supply system could supply its consumers with only 1,290 million gallons of water per day ("mgd"). Current demand, absent conservation measures or rationing, is approximately 1,500 mgd, which is 210 mgd in excess of safe yield.*fn11

Prudent management of the New York City water supply must direct itself to an additional source of water supply for the future, in order that safe yield may at least equal current water usage, and also must consider a supplemental source for an emergency.

Beginning in 1929 the City of New York approved a plan for the impoundment and diversion of waters of the Delaware River and its tributaries in New York State to meet the increasing municipal water supply needs of the City and other municipalities dependent on the City. The State of New Jersey began an original suit in the Supreme Court against the State of New York and the City to restrain this proposed diversion, and Pennsylvania intervened to protect its own sovereign interests in the Delaware River. New Jersey v. New York, 283 U.S. 336, 51 S.Ct. 478, 75 L.Ed. 1104 (1931). The Supreme Court in that case found the Delaware River and its tributaries "a necessity of life [to] be rationed among those who have power over it," Id. at 342, 51 S.Ct. at 479, and applied the Federal common law doctrine of equitable apportionment to allow the City to divert from the Delaware watershed up to 440 million gallons of water a day (later increased), provided that certain stream management conditions were met.*fn12 The Supreme Court retained continuing jurisdiction over its equitable decree in order to adjust the rights of the parties. In one of its revisions to the decree in New Jersey v. New York reported at 347 U.S. 995, 1005, 74 S.Ct. 842, 846, 98 L.Ed. 1127 (1954), the Supreme Court held that:

Id.

The Chelsea Pumping Station and the Hudson River

This brings us to a consideration of the Chelsea Pumping Station, which is located on the east bank of the Hudson River approximately 65 miles north of New York City.

The City began to seek supplemental and emergency water sources shortly after the Second World War. The most obvious economically feasible new source of water is the Hudson River, and in 1949 the City filed an application with the New York State Water Power and Control Commission*fn14 seeking permission to pump 100 million gallons per day from the Hudson River at Chelsea on an emergency basis. The permit was granted, subject to compliance with water treatment standards to be set by the New York State Department of Health, and so in 1950-51 the City built a facility known as the Chelsea Pumping Station, at Chelsea, New York in Dutchess County. Except for a brief test run, this facility never saw active service during the 1950's and, as required by its permit, was dismantled in 1957. At that time the City had begun diversion from its new 147 billion gallon Pepacton Reservoir on the East Branch of the Delaware and was in the process of building a new 97 billion gallon reservoir at Cannonsville on the West Branch of that river, and did not expect to use the Chelsea facility in the foreseeable future. But since then the metropolitan region has seen several protracted periods of drought and increased per capita usage, prompting the City not only to reconstruct but also to use the Chelsea Pumping Station on three particularly severe occasions of shortage in 1966-67, 1984-85 and also on May 1-16, 1989, during the pendency of this lawsuit. See Hazen and Sawyer, supra, at 5-16.

The Chelsea Pumping Station is located adjacent to Shaft "6" of the Delaware Aqueduct. The Delaware Aqueduct is a deep man-made tunnel which diverts water from the Delaware Reservoir system to the City of New York. In connection with its construction and operation, various numbered vertical ...