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February 6, 2003


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



On November 20, 1998, Plaintiffs served Defendants, the New York State Department of Environmental Conservation ("DEC"), and the Environmental Protection Agency ("EPA") with a Notice of Intent to Sue. On March 31, 2000, Plaintiffs filed their complaint in this action. See Dkt. No. 1. On October 6, 2000, this Court dismissed Plaintiffs' turbidity and thermal discharge claims for failure to state a claim. See Dkt. No. 19. Thereafter, on October 21, 2001, the Second Circuit reversed in part this Court's decision and remanded this action for further proceedings. See Dkt. No. 32.

Subsequently, Plaintiffs filed a motion for partial summary judgment, seeking a declaration that Defendants had violated the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a), by discharging turbidity and suspended solids from the Shandaken Tunnel into the Esopus Creek without a permit, including 347 days between February 1, 1995 and December 30, 1998.*fn1 See Dkt. No. 44. On June 4, 2002, the Court granted Plaintiffs' motion for summary judgment on the issue of liability and directed the parties to contact Magistrate Judge Treece's chambers to discuss how this action could be expedited to ensure that a trial on the issue of damages could be scheduled as soon as possible. See Dkt. No. 66.

The Court held a bench trial commencing on January 8, 2003, to determine the amount of civil penalties, if any, that Defendants should be required to pay pursuant to 33 U.S.C. § 1319(d), and what form of injunctive relief, if any, the Court should impose upon Defendants for operating the Shandaken Tunnel without a SPDES permit in violation of the CWA. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the following constitutes the Court's findings of fact and conclusions of law with respect to these issues.


A. Findings of Fact

Plaintiffs Catskill Mountains Chapter of Trout Unlimited, Inc. ("CMCTU"), Theodore Gordon Flyfishers, Inc. ("TGF"), Catskill-Delaware Natural Water Alliance ("CDNWA"), Federated Sportsmen's Clubs of Ulster County, Inc. ("FSC"), and Riverkeeper, Inc., are not-for-profit corporations organized under the laws of the State of New York. Members of CMCTU, TGF, CDNWA, and FSC live near the Esopus Creek and enjoy the Esopus Creek for numerous activities, including, but not limited to, flyfishing. Riverkeeper, whose mission is to protect the environmental resources of the Hudson River and its tributaries, including the Esopus Creek, has members who fish in the Esopus Creek.

Ron Urban and Bruce Duffy, who are also members of CMCTU, testified that they have observed a significant increase in turbidity in the Esopus Creek below the Shandaken Tunnel and that they find that the turbidity is visually offensive and creates unsafe conditions for wading. Brother John Farrell, a member of FSC, has fished in the Esopus Creek since the mid-1980s. He testified that since 1996 he has observed that the Esopus Creek below the Shandaken Tunnel has become more turbid, causing it to be unsafe and affecting his aesthetic enjoyment of the Esopus Creek. He also testified that he very seldom fishes below the Shandaken Tunnel, except with an older friend who lives on the Esopus Creek in that area.

Defendant City of New York, by and through Defendant New York City Department of Environmental Protection ("NYCDEP"), is the owner and operator of the largest unfiltered drinking water supply in the United States.*fn2 Defendants provide high quality water to more than nine million residents of New York State, including eight million people who live in New York City and approximately one million people who live in Westchester, Putnam, and Rockland Counties. Defendant NYCDEP conducts and oversees operation of the Shandaken Tunnel.

The Catskill water supply system provides approximately forty percent of New York City's daily drinking water needs under normal operating conditions. This system consists of two reservoirs, the Ashokan and the Schoharie. The Shandaken Tunnel began operating in 1924. The water in the Schoharie Reservoir is diverted to the Esopus Creek, the main tributary to the Ashokan Reservoir, through the Shandaken Tunnel. The Shandaken Tunnel has a flow capacity of up to 650 million gallons per day. When the Shandaken Tunnel is in operation, water from the Schoharie Reservoir enters the Shandaken Tunnel through an intake channel on or in the bed of the Schoharie Reservoir. The Shandaken Tunnel runs approximately eighteen miles from the intake structure at the Schoharie Reservoir to the portal from which it discharges into the Esopus Creek eleven miles upstream of the Ashokan Reservoir. The Catskill aqueduct, which moves water from the Ashokan Reservoir to New York City's Kensico Reservoir in Westchester County, has a capacity of up to 610 million gallons per day. Two aqueducts bring water from the Kensico Reservoir into New York City.

The Catskill Mountains are characterized by extensive deposits of silts and clays that are continuous for miles in the valleys through which streams tributary to the Catskill reservoirs now flow. The Ashokan Reservoir is designed to provide settling time to minimize the turbidity of Catskill water by the time it enters the Catskill aqueduct on its way to New York City so that the water entering New York City's distribution system meets drinking water standards. The water discharged through the Shandaken Tunnel into the Esopus Creek is frequently substantially, visibly more turbid and higher in suspended solids than the receiving water because of the system design and the geology of the Schoharie drainage basin. The suspended solids present in the Schoharie Reservoir are caused, at least in part, by erosion in the Schoharie Watershed, including erosion resulting from land disturbance from human activities.

The New York State Department of Environmental Conservation ("DEC") has designated the Esopus Creek, between the outlet of the Shandaken Tunnel and the inlet of the Ashokan Reservoir, as a class A(T) stream. The water quality standard for discharges of turbidity to a class A(T) stream is "no increase that will cause a substantial visible contrast to natural conditions." N.Y. Comp. Codes R. & Regs. tit. 6, § 703(2) (2002).

Pursuant to 33 U.S.C. § 1342, the Administrator of the EPA has delegated to the State of New York the authority to issue State Pollutant Discharge Elimination System ("SPDES") permits to dischargers in this State. DEC is the state agency that administers the SPDES program in New York. Defendants do not have a CWA permit or a SPDES permit for the operation of the Shandaken Tunnel, and, until the Second Circuit's decision on October 21, 2001, they maintain that they believed that they did not need a SPDES permit to operate the Shandaken Tunnel. Defendants operated the Shandaken Tunnel without a permit and, thus, in violation of the CWA on a total of 2,326 days from February 1, 1995 to December 31, 2002. See Defendants' Exhibit "D-17;" Letter to Court dated January 23, 2003.*fn3

B. Conclusions of Law

1. Standing

An organization has standing to bring an action on behalf of its members if it can establish that "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citation omitted). To establish individual standing a person must show

(1) [that he/she] has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 180-81.

In the present case, the testimony of Bert Darrow, Ron Urban, Bruce Duffy, and Brother John Farrow establishes that Plaintiffs have standing to bring this suit on behalf of their members. Each of these individuals testified that, at least since 1996, Defendants' discharge of water through the Shandaken Tunnel into the Esopus Creek has interfered with their enjoyment of the Esopus Creek — both aesthetically and in their ability to fish safely in the Esopus Creek — and, in the case of Bert Darrow, has interfered with his business as a flyfishing guide. Such injury is both concrete and particularized as well as fairly traceable to Defendants' actions. In addition, a decision in Plaintiffs' favor — i.e., requiring Defendants to reduce the turbidity of the water that flows through the Shandaken Tunnel into the Esopus Creek — will redress their injuries.

Accordingly, based upon the testimony of Plaintiffs' members, the Court concludes that Plaintiffs have standing to bring suit against Defendants under ...

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