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In re Town of Brunswick

Supreme Court of New York, Third Department

July 27, 2017

In the Matter of TOWN OF BRUNSWICK, Appellant,
COUNTY OF RENSSELAER et al., Respondents.

          Calendar Date: June 1, 2017

          Tuczinski, Cavalier & Gilchrist, PC, Albany (Andrew W. Gilchrist of counsel), for appellant.

          Stephen A. Pechenik, County Attorney, Troy, for County of Rensselaer, respondent.

          Whiteman, Osterman & Hanna, LLP, Albany (Philip H. Dixon of counsel), for Rensselaer County Sewer District No. 1 and others, respondents.

          Eric T. Schneiderman, Attorney General, Albany (Joshua M. Tallent of counsel), for New York State Department of Environmental Conservation, respondent.

          Before: McCarthy, J.P., Lynch, Devine, Clark and Aarons, JJ.


          Aarons, J.

         Appeal from a judgment of the Supreme Court (Elliot III, J.), entered April 8, 2016 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint.

         Respondent Rensselaer County Sewer District No. 1 (hereinafter the County sewer district) acts as an administrative agency of respondent County of Rensselaer. The County created the County sewer district to provide sewage transportation, treatment and disposal services, as well as to, among other things, operate and maintain a sewage interceptor system and waste water treatment plant. Under a sewer rental agreement, the County sewer district leases respondent City of Troy's combined sewer system, which collects both sanitary sewage and storm water from within the City. The combined sewer system is utilized to convey sewage and storm water to the County sewer district's sewage interceptor system and treatment facilities. Certain areas of petitioner discharge their sewage into the County sewer district sewer interceptor system, which then conveys it to the County sewer district's wastewater treatment plant. Pursuant to a long term agreement, petitioner agreed to pay the City an annual rate to use its sewer system as operated by the County sewer district.

         During times of heavy precipitation, the amount of sewage and precipitation entering the City's combined sewer system exceeds its capacity and creates combined sewer overflows (hereinafter CSOs). The CSOs are then discharged into the Hudson River pursuant to a State Pollutant Discharge Elimination System (hereinafter the SPDES) permit. The City holds a SPDES permit issued by respondent Department of Environment Conservation (hereinafter DEC). The SPDES permit contains, among other things, a best management practice for CSOs (hereinafter BMP No. 9), which addresses sewer extensions.

         Petitioner commenced this combined CPLR article 78 proceeding/declaratory judgment action challenging, among other things, BMP No. 9 and clauses in the sewer rental agreement that require petitioner to pay for sewer extensions. Petitioner also sought relief in the form of a writ of mandamus to compel against the County sewer district and a writ of prohibition against the County sewer district, DEC and the City. Respondents separately moved to dismiss the petition/complaint. Supreme Court granted the motions. Petitioner now appeals [1]. We affirm.

         Turning first to petitioner's claim for a writ of prohibition against DEC, assuming, without deciding, that petitioner has legal capacity to sue DEC, we nonetheless conclude that Supreme Court properly granted DEC's motion to dismiss on the basis that petitioner lacked standing. To establish standing, petitioner is required to demonstrate that it suffered an "injury in fact, which harm falls within the zone of interests or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted" (Matter of Colella v Board of Assessors of County of Nassau, 95 N.Y.2d 401, 409-410 [2000] [internal quotations marks and citation omitted]; see Lancaster Dev., Inc. v McDonald, 112 A.D.3d 1260, 1261 [2013], lv denied 22 N.Y.3d 866');">22 N.Y.3d 866 [2014]). In order to establish an injury in fact, petitioner must show that it "will actually be harmed by the challenged administrative action... [and that] the injury [is] more than conjectural" (New York State Assn. of Nurse Anesthetists v Novello, 2 N.Y.3d 207, 211 [2004]).

         Petitioner's claimed injury in fact is that it has been hampered in its ability to determine when to form or extend its own sewer districts within its territory. Petitioner rests this claim on the notion that DEC, through BMP No. 9, delegated its authority to make the final determinations with regard to any sewer extensions to the City. The record, however, does not support such notion. DEC is authorized, pursuant to federal and state statutes (see 33 USC § 1342 [b]; ECL 17-0808 [3]; 17-0701 [5], [6]; see Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation, 25 N.Y.3d 373, 383 [2015]), to issue an SPDES permit to the City - which assesses the effect that potential sewer extensions would have on its CSOs (see 6 NYCRR 750-2.10 [a]-[c]). DEC is also required to set forth the conditions that apply to the discharge as authorized by the SPDES permit (see ECL 70-0117 [5] [c]; [6] [c]). According to BMP No. 9, in the event that the City's sewer system needs to be extended, the City is required to "demonstrate the ability of the sewage system to convey the increased dryweather flows" and to assess the effect that the increased flow of sanitary sewage has on the strength of its CSOs.

         In view of this regulatory scheme, DEC required the City to conduct a study to determine whether its sewage system had the capacity to handle an increase in sewage and the effect the increase flow of sewage would have on CSOs. Although a December 2013 letter from DEC advised petitioner that, pursuant to BMP No. 9, DEC's final approval of sanitary sewer extensions in petitioner would be "contingent, " in part, on the City's assessment of the effects of extending the sewer system, nothing in BMP No. 9 stated that the City's assessment would be binding upon DEC's ultimate determination or that DEC was relinquishing its decision-making authority [2]. Moreover, a July 2014 letter from the City to petitioner explained that the City's study was only part of DEC's approval process. Notably, the City stated in this letter that it was not making any approvals by virtue of preparing a study. Based on the foregoing, petitioner has not established that DEC improperly empowered the City with the authority to make the final determination with regard to any sewer extensions. Accordingly, we conclude that petitioner has not suffered an injury in fact that is sufficient ...

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