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In re Application of Natural Resources Defense Council Inc.

Supreme Court, Westchester County

January 10, 2012

In the Matter of the Application of Natural Resources Defense Council, Inc., RIVERKEEPER, INC., WATERKEEPER ALLIANCE, INC., SOUNDKEEPER, INC., SAVE THE SOUND, PECONIC BAYKEEPER, INC., HUDSON-RARITAN BAYKEEPER, INC. (d/b/a NY/NJ BAYKEEPER), and HACKENSACK RIVERKEEPER, INC., Petitioners,
v.
The New York State Department of Environmental Conservation, Respondent.

LAWRENCE M. LEVINE Attorney for petitioner, Natural Resources Defense Council, Inc.

REED W. SUPER Attorney for petitioners, Riverkeeper, Inc., Waterkeeper Alliance, Inc., Soundkeeper, Inc.,

Save the Sound, Peconic Baykeeper, Inc., Hudson-Raritan Baykeeper, Inc., and Hackensack Riverkeeper, Inc.

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for respondent Attn: Kevin G. W. Olson, A.A.G.

Hon. Joan B. Lefkowitz, Justice of the Supreme Court

The following documents numbered 1 to 95 were read on this petition for judgments pursuant to article 78 and section 3001 of the of the Civil Practice Law and Rules:

Notice of Petition - Verified Petition (hereafter, "Petition") - Exhibits - Memorandum of Law........................1 - 11
Affirmation - Exhibits................................................................................................................................12 -19
Affidavits................................................................................................................................................ 20 - 27
Verified Answer - Affirmation - Exhibits - Memorandum of Law..............................................................28 - 33
Reply - Affirmation - Exhibits - Affidavit - Memorandum of Law ............................................................34 - 40
Certified Record ...................................................................................................................................41 - 95

Upon consideration of all of the foregoing, and for the following reasons, the Petition is granted in part and denied in part.

Factual and Procedural Background

Federal and State Pollutant Discharge Elimination Permits

The Federal Water Pollution Control Act (also known as the Clean Water Act [hereafter, "CWA"]) (see 33 USC § 1251, et seq.), inter alia, created the national pollutant discharge elimination system (hereafter, "NPDES") (33 USC § 1342), whereby the point source discharge of water pollution to surface waters was prohibited except in compliance with a permit therefor issued by the Administrator of the United States Environmental Protection Agency (hereafter, "EPA") or by a state agency authorized to do so by the EPA.

Article 17 of the Environmental Conservation Law, create[d] a state pollutant discharge elimination system (SPDES) to insure that the State of New York shall possess adequate authority to issue permits regulating the discharge of pollutants from new or existing outlets or point sources into the waters of the state, upon condition that such discharges will conform to and meet all applicable requirements of the [CWA], and rules, regulation, guidelines, criteria, standards and limitations adopted pursuant thereto..., and to participate in the [NPDES] created by the [CWA].

ECL 17-0801. In 1975, EPA authorized New York to issue such permits through the state's SPDES program, which is administered by respondent, New York State Department of Environmental Conservation (hereafter, "DEC").

The CWA contemplates the issuance of an individual permit for each applicant who seeks permission to discharge pollutants. However, due to the vast number of separate point sources from which pollutants may be discharged into the nation's waterways and water bodies, and the intolerable task that would be involved in considering and determining an individual application for each one, EPA regulations also provide for the issuance of a "[g]eneral permit[, which is] an NPDES permit' issued under [40 CFR] § 122.28 authorizing a category of discharges under the CWA within a geographical area. " 40 CFR § 122.2; see also Natural Resources Defense Council, Inc. v Costle, 568 F.2d 1369, 1380-1382 (D.C. Cir. 1977) (holding that EPA's use of general permits is allowed under the CWA as a necessary alternative to outright exemptions from NPDES permit requirements). The provisions of section 122.28 are applicable to state NPDES programs, such as New York's SPDES program, "[p]rovided that States which do not seek to implement the general permit program under § 122.28 need not do so." 40 CFR § 123.25(a)(11).

New York has chosen to implement the general permit program.

Thus, pursuant to ECL 70-0117(6), (a) Under the [SPDES] program, [DEC] may issue a general permit... to cover a category of point sources of one or more discharges within a stated geographical area which (i) involve the same or substantially similar types of operations, (ii) discharge the same types of pollutants, (iii) require the same effluent limitations or operating conditions, (iv) require the same or similar monitoring, and (v) which will result in minimal adverse cumulative impacts. (b) General permits can only be issued... if, by virtue of their nature and location, [DEC] determines such discharges are more appropriately controlled under a general permit than under individual permits.

The CWA requires a NPDES permit, and therefore the ECL requires a SPDES permit, for the discharge of storm water from a municipal separate storm sewer system (hereafter, "MS4") (see 33 USC § 1342[p]; ECL 17-0808), and CWA rules authorize a permitting agency to issue general permits for such discharges (see 40 CFR § 122.26[a][5]; 40 CFR § 122.28[a][2][i]).

The Instant Proceeding

In January 2003, DEC issued the first statewide "SPDES General Permit For Stormwater Discharges from Municipal Separate Storm Sewer Systems (MS4s), Permit No. GP-02-02, " ([hereafter, the "2003 MS4 Permit"], a copy of which has not been provided to the Court). By its terms, the 2003 MS4 Permit became effective on January 8, 2003, and was to expire in 2008. DEC commenced the renewal process in 2007. The permit was renewed for two years in 2008 (see "SPDES General Permit For Stormwater Discharges from Municipal Separate Storm Sewer Systems [MS4s], Permit No. GP-0-08-002, Effective Date: May 1, 2008, Expiration Date: April 30, 2010" [hereafter, the "2008 MS4 Permit"], a copy of which is reproduced at pages S2450-S2541of the Certified Record [1]), then for five years in 2010 (see "SPDES General Permit For Stormwater Discharges from Municipal Separate Storm Sewer Systems [MS4s], Permit No. GP-0-10-002, Effective Date: ...


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