Inc., Doe 1 and Doe 2 ("Defendants").
The complaint alleges that Defendants' plans for the construction and operation of a golf club in northern Westchester County violate the Clean Water Act because they fail to meet numerous requirements of the "New York State Department of Environmental Conservation State Pollution Discharge Elimination System General Permit for Storm Water Discharges from Construction Activities," Permit No. GP 93-06 ("SPDES" or "General Permit"). The case is presently before the court on Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). For the reasons stated below, the motion is denied.
Defendants are various entities owned directly or indirectly by Mitsui Fudosan (New York), Inc. and Kajima International, Inc. The golf club is a project of defendant Anglebrook Limited Partnership, which is an affiliate of Somers Golf Associates ("SGA"). SGA is a partnership of defendants Mitsui Fudosan (New York) Inc. and Kajima International Inc. Does 1 and 2 are general partners of Anglebrook. Anglebrook and its partners are subsidiaries of the partners of SGA and are controlled by SGA.
Defendants intend to build a private golf club on a 240 acre site in Somers, New York, immediately adjacent to the City's Amawalk Reservoir and two to three miles upstream of the City's Muscoot Reservoir. Two streams, the Angle Fly Brook and a tributary of the Plum Brook, pass through the site; each provides water to the Muscoot Reservoir. The Muscoot and Amawalk constitute the City's Croton water supply system. The Croton water system is a significant source of the City's water supply system which services the nearly nine million New York City area residents.
A. The Clean Water Act
The Clean Water Act was enacted in 1972 "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. §§ 1251-1386 (1986 & Supp. I 1994). The Act prohibits discharge of any pollutants into the nation's waters except pursuant to specific authorization under the Act 33 U.S.C. § 1311(a). Pursuant to § 402(a), National Pollutant Discharge Elimination System (NPDES) permits can be issued to particular entities, allowing them to discharge limited amounts of pollutants into surface waters. 33 U.S.C. § 1342(a). Further, § 402(b) permits each state to implement the Clean Water Act through its own permit program as long as the program conforms to federal guidelines approved by the EPA administrator. 33 U.S.C. § 1342(b). The EPA administrator has authorized the Department of Environmental Conservation ("the DEC") in the State of New York to issue and enforce discharge permits.
The holder of a state NPDES permit is subject to both state and federal enforcement actions for failure to comply with its permit. 33 U.S.C. §§ 1319, 1342(b)(7). In the absence of federal or state enforcement, private citizens may commence civil actions under § 505 against any person alleged to be in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a)(1). Section 505 defines an effluent standard or limitation to include, among other things, the discharge of any pollutant except as provided for in the Act and a violation of a permit or condition the Act. 33 U.S.C. § 1365(f)(1), (6). If the citizen prevails in an enforcement action, the court may enforce the effluent standard or limitation, order injunctive relief, and impose civil penalties. 33 U.S.C. § 1365(a).
In 1987, Congress amended the Clean Water Act to address the threat of pollution carried into nearby surface waters, such as drainage systems, streams and reservoirs, by stormwater runoff. Among other things, pollutants from stormwater runoff can result in the deterioration of local water supply systems. Under the new regulations, discharge resulting from commercial or industrial activities which disturb more than five acres of land require a permit. 33 U.S.C. § 1342(p).
In New York the DEC issued the DEC State Pollution Discharge Elimination System General Permit for Stormwater Construction Activities, permit GP-93-06 ("the General Permit") in 1993. The General Permit requires that permittees prepare a Stormwater Pollution Prevention Plan ("SWPPP") which must include detailed descriptions of plans for erosion and sediment controls, monitoring, and recordkeeping.
The General Permit prohibits all discharges associated with industrial activity that it does not expressly authorize. The General Permit enforces these standards by a Duty to Comply Requirement, which obligates owners to comply with terms of the SWPPP. Under the Permit, "Any Permit noncompliance constitutes a violation of the Clean Water Act . . . and is grounds for an Enforcement Action." GP-93-06 § VA.
The General Permit requires that any person intending to "disturb five or more acres of land must submit a Notice of Intent ("NOI") to be in accordance with the requirements of [the General Permit] at least two days prior to the commencement of construction activities." GP-93-06 § IE. The General Permit further requires that the permittee submit a copy of the SWPPP to the local governing body and "any other authorized agency having regulatory control over the construction activity." GP-93-06 § IIIA.
B. Project History
This is not the first proceeding in which the City has expressed its objections to Defendants' project, and, in particular, to its potential impact on the City's water supply. For the past three years, the City has opposed Defendants' plans in various environmental proceedings. The golf club has previously undergone a full environmental review pursuant to the State Environmental Quality Review Act. Defendants have submitted a Draft Environmental Impact Statement and a Final Environmental Impact Statement in July, 1991. The golf club was also reviewed by the Town of Somers Planning Board which granted preliminary approval in December 1991 and final approval in November 1993. The Somers Zoning Board of Appeals granted Defendants a zoning variance in June 1992.
In addition to the approval of agencies of the Town of Somers, the golf project needed to obtain several state permits, including a state wetlands permit from the DEC since the runoff from the construction activity would pass through a wetlands area before reaching the streams and reservoirs. The City opposed Defendants' application for a wetlands permit, contending, in large part, that it did not include adequate erosion and sedimentation control measures and did not properly address the problem of stormwater runoff. Notwithstanding the City's opposition, on May 10, 1993, the DEC issued Defendants a Wetlands Permit and other state permits, including a Protection of Waters Permit under Article 15 of the New York State Environmental Conservation Law and a Water Quality Certificate under Section 401 of the Clean Water Act. 33 U.S.C. § 1341.
Subsequently, the City appealed the May 10, 1993 decision to the New York State Freshwater Wetlands Appeals Board ("the FWAB"). The FWAB hearings reviewed the potential adverse impact of construction activities on adjacent wetlands. The City presented its criticisms of Defendants' SWPPP. Defendants' engineer, Gerhard Schwalbe, testified by affidavit dated December 17, 1993, and addressed the City's criticisms of the SWPPP and contended that it conformed to applicable regulations, and in particular to New York's General Permit.
The FWAB affirmed the DEC's decision, but it did not have jurisdiction to consider the City's objections under the Clean Water Act.
C. The Notice Letter
On March 29, 1994, the City sent Defendants a Notice of Intent to Sue letter ("the Notice Letter") under 33 U.S.C. § 1365(b)(1)(A) which requires sixty days notice of an alleged violation as a condition precedent to a citizen suit. See Hallstrom v. Tillamook County, 493 U.S. 20, 107 L. Ed. 2d 237, 110 S. Ct. 304 (1989). The Notice Letter, captioned "Notice of Intent to Sue for Clean Water Violations", noted that the General Permit identified deficiencies in Defendants' SWPPP and contended that the SWPPP, as it existed at that time, would violate the General Permit and pose a threat of contamination to the City's water supply. Specifically, the City noted that Defendants' SWPPP did not contain requisite descriptions of its water quality standards, stormwater controls, erosion and sedimentation controls, maintenance procedures, and stormwater management practices.
On September 16, 1994, Defendants filed a "Notice of Intent" ("NOI") with a statement that construction would commence on September 20, 1994 pursuant to the General Permit. The Defendants also filed an amended SWPPP. Because of the pendency of this lawsuit, construction has not begun.
D. Procedural History
The City filed its complaint on October 5, 1994, alleging two claims. The first is that Defendants' SWPPP, dated September 16, is inadequate and therefore violated the General Permit. Its second claim is that once construction has begun, stormwater discharge will constitute additional violations of the Act.
On October 13, 1994, Judge Whitman Knapp issued a temporary restraining order enjoining the commencement of construction pending a hearing on the City's motion for a preliminary injunction. By notice of motion dated October 24, 1994, Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Complaint on the ground that it has failed to state a claim because it did not allege an unlawful discharge of a pollutants. Defendants have also moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that this court lacks subject matter jurisdiction because the City failed to comply with the Act's 60-day notice requirement. The City's application for a preliminary injunction was stayed pending the determination of the motions to dismiss. We consider these arguments in turn.
A. Failure to State A Claim
Defendants contend that because construction activity has not commenced, there has been -- and can be -- no violation of the Act since it is never violated except where there has been "the discharge of [a]. . . pollutant" as proscribed by § 301(a). This reading of the statute, according to the Defendants, means that alleged facial inadequacies of a SWPPP are never actionable until there is construction activity, followed by the discharge of a pollutant, followed by a 60-day notice letter and an opportunity to cure. While there is a certain logic to the contention that the Clean Water Act contemplates litigation over water quality as opposed to paper quality, the problem is that the text of the statute precludes this result.
1. Statutory Interpretation
The starting point for our analysis is the text of the statute. Consumer Product Safety Comm'n v. GTE Sylvania Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). The provision under which the City sues, 33 U.S.C. § 1365, provides that
. . . any citizen may commence a civil action on his own behalf--
(1) against any person who is alleged to be in violation of (A) an effluent standard or limitation under [the Act].