New York Law Review

Tag: Stormwater Runoff

  • Natural Resources Defense Council, Inc. v. New York State Dept. of Environmental Conservation, 25 N.Y.3d 376 (2015): SPDES General Permits, the “Maximum Extent Practicable” Standard, and Municipal Stormwater Runoff

    25 N.Y.3d 376 (2015)

    Under New York’s State Pollutant Discharge Elimination System (SPDES), the Department of Environmental Conservation (DEC) has broad discretion to issue general permits for municipal stormwater discharges, provided they meet the “maximum extent practicable” standard, even if the process does not involve comprehensive review and public hearings as with individual permits.

    Summary

    The Natural Resources Defense Council (NRDC) challenged the New York State Department of Environmental Conservation’s (DEC) 2010 General Permit for municipal stormwater discharges, arguing that the process of authorizing such discharges without in-depth review or public hearings violated federal and state law. The Court of Appeals of New York affirmed the Appellate Division’s decision, holding that DEC’s procedures, which complied with the EPA’s regulations and used the “maximum extent practicable” standard, were reasonable and permissible. The court emphasized that the DEC was empowered to issue general permits for administrative efficiency, streamlining, and flexibility, and that the public was adequately informed via the NOIs and annual reports submitted by permittees.

    Facts

    Municipal stormwater runoff carries pollutants into New York’s surface waters. Under federal and state law, discharges from municipal separate storm sewer systems (MS4s) require authorization under a State Pollutant Discharge Elimination System (SPDES) permit. As an alternative to individual permits, small MS4s (serving under 100,000 people) may seek coverage under a SPDES general permit. The 2010 General Permit required these MS4s to develop and implement a Stormwater Management Program (SWMP). NRDC challenged the 2010 General Permit, arguing that it created a “self-regulatory system” that failed to reduce pollutant discharges to the “maximum extent practicable” as required by law.

    Procedural History

    NRDC initiated a combined Article 78 proceeding/declaratory judgment action against DEC in Supreme Court. The Supreme Court granted partial relief to NRDC, but the Appellate Division rejected NRDC’s challenges to the 2010 General Permit. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the DEC’s authorization of small MS4s to discharge stormwater under the 2010 General Permit without a more rigorous review of their Notice of Intent (NOI) and SWMP violated the Clean Water Act.

    2. Whether the 2010 General Permit and the associated procedures, including the completeness review of the NOI and public comment process, were consistent with New York’s Environmental Conservation Law.

    Holding

    1. No, because the EPA’s regulations, which the DEC followed, allowed authorization of discharges upon submission of NOIs, without more extensive review and public hearings.

    2. Yes, because DEC’s procedures fell within the scope of the Environmental Conservation Law, which granted the agency discretion to use general permits and provided reasonable public participation and the “maximum extent practicable” standard.

    Court’s Reasoning

    The court’s decision hinged on a combination of federal and state law, as well as deference to agency expertise. The court referenced the federal Clean Water Act, which allows states to administer the NPDES permit program. The court acknowledged a split among federal circuit courts on whether the Clean Water Act requires permitting authorities to conduct an in-depth review of NOIs, but noted that New York’s SPDES program was required to comply with the EPA’s existing regulations, which allowed for the existing procedures. The court also emphasized that the New York Environmental Conservation Law authorized DEC to issue general SPDES permits for administrative efficiency, streamlining, and for the DEC to use its own expertise in judging what was required to reduce pollution to the “maximum extent practicable.” The court found that the DEC’s chosen procedures, including a completeness review of NOIs and public participation requirements, were reasonable and within its discretionary powers. The court also noted that there was no need for more public participation where the general permit had already gone through a detailed public comment process. The court deferred to DEC’s expertise in managing the SPDES program and ensuring compliance with environmental standards.

    Practical Implications

    This case affirms the broad discretion of state environmental agencies in New York to regulate municipal stormwater discharges through general permits. This decision gives agencies flexibility in structuring permitting processes and reinforces the importance of complying with both state and federal regulations. The decision also gives DEC considerable discretion in deciding what constitutes the “maximum extent practicable” in reducing pollutants. It reinforces the use of general permits as a way to streamline permitting for similar discharges. Attorneys representing environmental groups need to be aware of the deference given to agency interpretations of laws and regulations. Those practicing environmental law must also be aware of the current split in the federal courts. This case also highlights the importance of reviewing public notices and comment periods associated with permitting processes.

  • Nilsson v. Department of Environmental Protection, 8 N.Y.3d 398 (2007): Limits on DEP’s Variance Authority in Watershed Regulations

    Nilsson v. Department of Environmental Protection, 8 N.Y.3d 398 (2007)

    A New York City Department of Environmental Protection (DEP) variance decision is arbitrary and capricious if it demands mitigation measures outside its regulatory authority, but DEP can reasonably request information about contiguous property holdings when assessing hardship.

    Summary

    Nilsson sought a variance from regulations limiting fill for a subsurface sewage treatment system (SSTS) on his property within the NYC Watershed. DEP denied the variance, citing inadequate mitigation of stormwater runoff from the proposed residence and Nilsson’s failure to provide information on other real estate holdings. The New York Court of Appeals held that DEP acted improperly by requiring mitigation measures for stormwater runoff because these measures were outside the scope of its regulatory authority. However, the Court also stated that DEP could reasonably request information about Nilsson’s contiguous property holdings. The case was remitted for reconsideration of the hardship claim.

    Facts

    Nilsson applied for a permit to build an SSTS on vacant land in Putnam County, within the NYC Watershed. The application was denied because it exceeded fill limits set by DEP-PCDOH standards. Nilsson sought a variance, arguing compliance was impossible due to shallow soil and that denial would cause substantial hardship. DEP requested mitigation measures for potential contamination and stormwater runoff, also seeking information about Nilsson’s other property holdings. Nilsson proposed mitigation for the SSTS itself but refused to provide information on other real estate holdings. DEP denied the variance citing inadequate stormwater mitigation and lack of information to substantiate hardship.

    Procedural History

    Nilsson initiated a CPLR article 78 proceeding to overturn DEP’s decision. The Supreme Court denied the petition, finding DEP’s requirements rational and Nilsson’s hardship claim unsubstantiated. The Appellate Division reversed, holding that DEP exceeded its authority by considering stormwater runoff issues and that noncontiguous real estate holdings were irrelevant. The Court directed DEP to grant the variance. The Court of Appeals granted DEP leave to appeal.

    Issue(s)

    1. Whether DEP acted within its authority by requiring mitigation of stormwater runoff as a condition for granting a variance from fill requirements for an SSTS.

    2. Whether DEP properly denied the variance application based on Nilsson’s failure to provide information about his other real estate holdings.

    Holding

    1. No, because DEP cannot extend its jurisdiction to otherwise unregulated sources of degradation or contamination of the New York City water supply, simply because they might potentially arise from the granting of a variance.

    2. No, because the request for information regarding real estate holdings was too broad; however, DEP may reasonably request information about contiguous holdings.

    Court’s Reasoning

    The Court of Appeals found that DEP properly required Nilsson to propose measures to reduce potential contamination related to the excessive fill, pursuant to 15 RCNY 18-61 (a) (1) (iii), which requires an applicant seeking a variance from the requirements of the Watershed Regulations to “[demonstrate that the activity as proposed includes adequate mitigation measures to avoid contamination to or degradation of the water supply which are at least as protective of the water supply as the standards for regulated activities set forth in these rules and regulations.” However, DEP abused its discretion by demanding mitigation of stormwater runoff, as these regulations (15 RCNY 18-39) did not apply to Nilsson’s property. The Court reasoned that DEP cannot expand its regulatory reach simply because a variance might allow for potentially unregulated pollution sources, stating that, “DEP…cannot extend its jurisdiction to otherwise unregulated sources of degradation or contamination of the New York City water supply, simply because they might potentially arise from the granting of a variance.” The Court also held that the request for information about real estate holdings “in the immediate vicinity” was overly broad. While the regulations require a showing of “substantial hardship due to site conditions or limitations” (15 RCNY 18-61 [a] [1] [iv]), this does not mandate evidence of financial loss like a zoning use variance. DEP can, however, request information about contiguous property holdings, as combining lots may minimize hardship. The Court remitted the case to DEP for reconsideration of Nilsson’s hardship claim, given his failure to provide information about contiguous holdings.