The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.
BARRINGTON D. PARKER, JR. U.S.D.J.
In 1987 Congress amended the Clean Water Act to address the threat to nearby surface waters of pollution from stormwater runoff. Under regulations implementing the Act, discharge from commercial or industrial activities which disturb more than five acres of land require a stormwater permit. 33 U.S.C. § 1342(p). In this case plaintiff, the City of New York, tests compliance with those permit requirements and with the adequacy of construction techniques intended to control stormwater runoff from a proposed 240 acre golf course development in Somers, New York.
Tersely stated, the City contends that the stormwater control plans are inadequate and, therefore, violate the law. Should development occur, the City believes significant damage to its drinking water supply will result. The golf course's designers maintain that their plans are "state of the art," that they comply with permit guidelines and that no impairment to the City's drinking water supply will result from the construction or operation of the golf course.
Plaintiff's request for a preliminary injunction was joined with a trial on the merits from February 27, 1995 through March 9, 1995. Pursuant to 52 (a) of the Federal Rules of Civil procedure, the Court sets forth below its findings of fact and conclusions of law.
New York City provides drinking water to approximately nine million City and State residents. The defendants intend to build a private golf club, the Anglebrook Golf Club, with membership limited to 300, in Somers, New York in Northern Westchester County, adjacent to the Amawalk Reservoir and two to three miles upstream of the Muscoot Reservoir, both of which are part of the City's Croton Reservoir system, a major part of its water supply.
From the latter half of the nineteenth century until 1989, approximately seventy-five percent of the site, or 180 acres, was used exclusively for agriculture. This use necessitated the application of horticultural chemicals to row crops planted in exposed soil and resulted in the generation of stormwater unregulated by the permit system now in place. Since 1989, when SGA entered into a conditional contract to purchase the property, the property has not been used. Under applicable zoning regulation, farming is an "as of right" use and agriculture could presumably resume at any time.
All stormwater runoff from approximately 230 acres drains through the two on-site wetlands, which encompass 52.5 acres, before entering two on-site watercourses. These two watercourses are an unnamed tributary to the Plum Brook and one of the headwaters of the Angle Fly Brook. Runoff from 230 areas of the site must traverse fifty acres of on-site wetlands and then flow between two and three miles through ponds and the brooks themselves, before entering the Muscoot Reservoir. Water from the remaining approximately ten acres located in the northwestern corner of the property drains into the storm drainage system for a neighboring road before entering the Amawalk reservoir.
Approximately 230 of the 240 acres of the site consists of Paxton and Woodbridge Soil on slopes ranging from three to fifteen percent which, according to the Westchester County Soil survey, has a "slight to moderate potential for erosion." Two small areas of the site, one on the eastern part, the other on the west, together comprise about ten acres and contain Paxton and Charlton-Chatfield Soil at a fifteen percent slope, which according to the Survey, has severe erosion potential. Much of the area where this type of soil is located consists of rock outcropping which does not erode. Approximately 137 acres of the 240 acre site consists of undeveloped forest land.
C. Pollution in the Muscoot and Amawalk Reservoirs
New York City's drinking water supply is unfiltered and of very high quality. The Muscoot and Amawalk Reservoirs are part of the City's 590 billion gallon reservoir system. These reservoirs have come under pressure from pollution associated with development in the reservoir drainage areas. The quality of the water in the reservoirs depends on the cleanliness of the streams that feed them. Pollutants carried in stormwater runoff include phosphorus. Phosphorus occurs naturally, and it is not claimed that construction activity will generate or otherwise involve the use of phosphorus, rather, that phosphorus already present in nature and in the soils at the site will cling to sediment which may, as a result of construction activities, enter the on-site streams which ultimately flow into the City reservoirs. Phosphorus has been shown to cause excessive algae growth, and sediment, which, among other things, impairs aquatic ecosystems by causing cloudiness and may also act as a carrier for other pollutants.
The City contends that the concentration of phosphorus in the Amawalk and Muscoot Reservoirs apparently now exceeds the maximum concentration set forth in state standards, and has caused these reservoirs to be eutrophic, i.e., they suffer from excessive growth or nuisance blooms of algae. Algae occur naturally. They bloom in the late summer and die as water temperature drops in the fall. Because of the presence of algae, the reservoirs have lower than desirable concentrations of dissolved oxygen and higher than desirable concentrations of iron and manganese, even though their overall quality remains high. If not controlled, algae may, at some unspecified point in the future, produce toxins which are harmful to fish, aquatic invertebrates and mammals. Excessive excretions from algae impair the taste, color and odor of water. If not watched, the progressive deterioration of the water's quality will, over time, lower its oxygen content and generate sediment that releases iron and manganese which further impair the taste, color and odor of water.
The City claims that the project's plans are deficient and any additional stormwater runoff -- no matter the amount -- will, by exacerbating this problem, violate the Clean Water Act and entitle it to pre-construction injunctive relief. SGA's position is that its plans are imaginative, effective ones that comply with relevant guidelines, that the site is spatially so far removed from the reservoir systems and so well insulated by wetlands, forests, streams, ponds, etc. as well as by a myriad of protective features incorporated into the project that no degradation of the City's water supply will occur during construction or operation of the golf course and that the City's predictions of harm are ungrounded, unlikely and speculative.
This is not the first proceeding in which the City has expressed its objections to the project, and, in particular, to its potential impact on the City's water supply. Since 1991, the City has unsuccessfully litigated the adequacy of SGA's plans in various environmental proceedings. The project previously experienced a full environmental review pursuant to the New York State Environmental Quality Review Act ("SEQRA"). SGA submitted a Draft Environmental Impact Statement in October 31, 1990 and a Final Environmental Impact Statement in July, 1991.
In January, 1992, the Town of Somers Planning Board (the "Board"), acting as lead agency under SEQRA, adopted a comprehensive SEQRA Findings Statement which made detailed findings and which concluded that neither the construction nor the operation of the golf course would have any significant impact on soil or water quality. The Board granted final approval in November, 1993 and the Somers Zoning Board of Appeals granted a zoning variance in June 1992.
The Clean Water Act is to some extent self-policing. It prohibits discharge of any pollutants into the nation's waters except pursuant to specific authorization. 33 U.S.C. § 1311(a). Under the Act, discharge resulting from activities which disturb more than five acres require a permit. 33 U.S.C. § 1342(p). 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 New York Department of Environmental Conservation ("the DEC") to issue and enforce General Permits to discharge.
On April 29, 1992, SGA submitted a Joint Permit Application. In addition to an NPDES permit, the golf project required other permits, including a Freshwater Wetlands permit under Article 24 of the New York State Environmental Conservation Law since the runoff from the construction activity would pass through a wetlands, a Protection of Waters Permit under Article 15 of the New York State Environmental Conservation Law, and a Water Quality Certification under Section 401 of the Clean Water Act, 33 U.S.C. § 1341.
In New York the DEC has issued a State Pollution Discharge Elimination System General Permit (the "General Permit") which requires that permitees prepare a SWPPP which must include detailed descriptions of plans for erosion and sediment controls, monitoring, and recordkeeping.
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."
In the months following the April 1992 submission to the DEC of the Joint Permit Application, SGA revised its plans to reflect the DEC's comments and criticisms. On September 28, 1992, DEC published a Notice of Complete Application which initiated a public comments period until November 6, 1992. At that time, the City opposed the application for a wetlands permit, on much the same grounds advanced here -- namely that the plans did not include adequate erosion and sedimentation control measures and generally did not properly address stormwater runoff.
Notwithstanding the City's opposition on May 10, 1993 the DEC issued Defendants a Joint Permit, including a Wetlands Permit. Approval, however, was conditioned upon Defendants' implementation of a Stormwater Management Program which had been reviewed and approved by the Town of Somers.
Subsequently, the City appealed the May 10, 1993 decision to the New York State Freshwater Wetlands Appeals Board ("the FWAB"). There, the City sought to enjoin construction of the Project and to invalidate the Freshwater Wetlands permit on the grounds that Defendants' proposed erosion and sedimentation controls were inadequate. In connection with the FWAB hearings, SGA submitted their SWPPP, which was substantially the same then as it is now. The FWAB held hearings on the potential adverse impact of construction activities on adjacent wetlands. It affirmed the DEC's decision, and found, specifically, that the SGA's plans were sufficient to protect the wetlands and watercourses on-site during construction and that it would be highly unlikely that horticultural chemicals to be used on the completed Golf Course would enter the wetlands. Because it did not have jurisdiction, the FWAB did not directly address any of the City's objections under the Clean Water Act. Because of the topography of the site, stormwater pollution would degrade the wetlands long before it could reach the City's water supply.
On March 29, 1994, the City sent Defendants a Notice of Intent to Sue letter which alleged deficiencies in the 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. See 33 U.S.C. § 1342(p).
The City filed its complaint on October 5, 1994. On October 13, this Court issued a temporary restraining order. The parties stipulated that the order would remain in effect until the resolution of the City's motion for a preliminary injunction. The order was lifted on April 12, 1995.
1. The General Permit SWPPP Requirements
As we have seen, the City's principal objections to the project is that the SWPPP fails to conform to the requirements of the General Permit.
An issue of immense importance to this litigation is just how the standards of the General Permit should be interpreted. The General Permit sets out "Guidelines" to govern the preparation of an SWPPP and this case turns, in large part, on whether the Guidelines are sign posts or hitching posts. The City contends that the Guidelines are mandatory and plans that fall short of full compliance violate the Clean Water Act. The Defendants, on the other hand, view the ...