The opinion of the court was delivered by: Brieant, Chief Judge.
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:
Any of the parties hereto, complainant, defendants
or intervenors may apply at the foot of this
decree for other or further action or relief, and
this Court retains jurisdiction of the suit for
the purpose of any order or direction or
modification of this decree, or any supplemental
decree that it may deem at any time to be proper
in relation to the subject matter of this
controversy.
In a prior decision [Elwood v. City of New York, 450 F. Supp. 846
(S.D.N.Y. 1978) rev'd. on other grounds sub nom. Badgley v.
City of New York, 606 F.2d 358 (2d Cir. 1979) cert. denied sub
nom. Canfield v. City of New York, 447 U.S. 906, 100 S.Ct.
2989, 64 L.Ed.2d 855 (1980)], this court, relying on the
Supreme Court's 1954 decree in New Jersey, held that "[t]he
City has a continuing equitable duty to develop its available
sources of water to meet its increasing needs, by the
construction of additional impoundment and storage facilities,
and by developing those other sources, including the Hudson
River, directly available to it, and can be required to do so
by the Supreme Court." Id. at 857.*fn13
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 ...