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U.S. v. CITY OF NEW YORK

May 12, 2000

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.



The opinion of the court was delivered by: Gershon, District Judge.

  OPINION AND ORDER

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 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., the State regulations thereunder, 6 N.Y.C.R.R. §§ 617.1 et seq., and the City's rules adopted in furtherance of that Act, the City Environmental Quality Review ("CEQR"), 62 R.C.N.Y. §§ 5-01 et seq. & 43 R.C.N.Y. §§ 6-01 et seq. The "milestones" agreed to in the Consent Decree prescribe particular steps the City is required to take by specified dates through completion of construction of the WTP by September 1, 2006, and commencement of its operation by March 1, 2007. The City agreed to commence performance of the milestones in the Consent Decree before its approval by the court, and the City did so. The City identified eight potential sites for the WTP, issued a preliminary report evaluating the advantages and disadvantages of each, and publicized its content for public comment and public hearings. Three of these sites, including the site eventually chosen, are located in Van Cortlandt Park. The City had to compile a list of necessary permits and approvals for all sites under consideration by September 1, 1998, and the City's list did not include approval of the State Legislature for any of the parkland sites. Other milestones required the City to request State legislation and a home rule message from the City Council by July 31, 1999, "in the event that use of the selected site for the WTP requires state legislation," and to obtain that legislation "if necessary" by February 1, 2000. The City must pay substantial stipulated penalties if it fails to comply with the milestones, including escalating per day penalties, in addition to the civil penalty it agreed to for past failure to comply with federal requirements.

In December, 1998, the City announced its selection of Mosholu Golf Course as the preferred site, completed a Draft Environmental Impact Statement ("DEIS"), and began a process of public comment, public hearings and review, pursuant to the procedures mandated by SEQRA and CEQR and the City's Uniform Land Use Review Procedure ("ULURP"), N.Y.C. Charter § 197-c. A Final Environmental Impact Statement ("FEIS") was completed in May 1999. Numerous critical comments were received during the review process, including assertions by the private plaintiffs in these actions and others that the proposed project required State legislative approval and amendment of the City Zoning Resolution. No comments were received during public hearings from representatives of any agency of the State, including the AG, although attorneys in the AG's office informally advised City attorneys of their view that State legislation was required, a position rejected by the City Corporation Counsel.

This review process culminated in approval by the City Planning Commission on June 1, 1999 of the Mosholu Golf Course site for the WTP, and approval by the City Council of the City Planning Commission decision on July 21, 1999. The City Council determined that the FEIS satisfied the requirements imposed by law for environmental review, that the project minimized adverse environmental effects to the maximum extent practicable, and that, after consideration of the relevant environmental issues, land use implications and other policy issues, the project should be approved. The City Council modified the City Planning Commission decision by providing approximately $20 million for preservation, restoration and improvement of the site of the project and its immediate vicinity, and for improvements elsewhere in Van Cortlandt Park.

On July 30, 1999, the AG's office sent a letter to the City stating that construction of the WTP at the Mosholu Golf Course site, as approved by the City Council, required State legislation, and that, therefore, the City had to request State legislation and a home rule message from the City Council by the following day in order to satisfy the applicable milestone of the Consent Decree. The City rejected the AG's interpretation of the legal requirements. The AG's Office has nevertheless advised the court by letter, in response to my inquiry, that "the Attorney General would strongly support state legislation" approving the Mosholu Golf Course site. The letter states that the site is identified in the FEIS as the most appropriate one for the project, that it "has ...


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