On June 28, 2010, a coalition of environmental groups[1] (“Petitioners”) filed an Article 78 Petition (“Petition”) in court challenging the New York State Department of Environmental Conservation’s (“NYSDEC”) April 2010 issuance of a State Pollution Discharge Elimination System (“SPDES”) General Permit that sets forth requirements applicable to municipal separate storm sewer systems (“MS4s”).[2] The General Permit authorizes discharges of stormwater from “small MS4s,” those municipal storm water systems serving communities with a population between 10,000 to 100,000 people.[3] New York regulates MS4s via its SPDES program, which implements the Clean Water Act (“CWA”) pursuant to delegated authority.[4]

In New York a permit is required for stormwater discharges (i.e., runoff over land or impervious surfaces into water bodies) from MS4s and the permit must include “controls to reduce the discharge of pollutants to the maximum extent practicable.”  33 U.S.C. § 1342(p)(3)(B).  For small MS4s, one such control is the development and implementation of a Storm Water Management Plan (“SWMP”).

Petitioners challenged the 2010 MS4 General Permit, alleging it fails to achieve state water quality standards because it would allow stormwater pollution to continue at existing levels instead of reducing pollution.  Petitioners alleged four causes of action:

1. NYSDEC’s issuance of the General Permit was unlawful because it does not require MS4s to reduce their discharges of pollutants to the “maximum extent practicable.”  Petitioners alleged that NYSDEC’s reliance on the State Stormwater Management Design Manual’s technical standards for post-construction stormwater is unlawful because that manual is outdated, and does not sufficiently reduce pollutant discharges to the “maximum extent practicable.”  Additionally, Petitioners alleged that the General Permit authorization of an optional “banking and credit system” – allowing off-site stormwater pollution reductions to satisfy on-site requirements – would “violate the CWA’s mandate that post-construction stormwater discharges from new development and redevelopment be reduced to the maximum extent practicable” because the banking and credit system is not limited to instances where on-site compliance is impracticable.  (Petition, ¶¶ 65-69.)
2. NYSDEC issuance of the General Permit was unlawful because it does not ensure compliance with State total maximum daily loads (“TMDL”) (a kind of pollution loading allocation) for water bodies where MS4 discharges contribute to violations of the water body’s water quality standards.  Petitioners alleged that the General Permit does not include limitations necessary to meet water quality standards, does not implement a TMDL wasteload allocation, and does not include a compliance schedule ensuring that permittees will achieve compliance with water quality standards “within the shortest reasonable time” if permittees cannot immediately comply with water quality standards.  Additionally, Petitioners alleged that the General Permit does not ensure that sufficient measures will be taken to meet pollution reduction targets set for bodies of water that the State has prioritized for cleanup (e.g., Long Island Sound).  (Petition, ¶¶ 71-78.)
3. NYSDEC issuance of the General Permit was unlawful because it does not “include requirements to take samples and measurements representative of the quantity and character of the monitored discharge” as required by State and federal law.  (Petition, ¶¶ 80-81.)
4. Because the General Permit authorizes MS4s to develop their own effluent limitations (including SWMPs and a banking and credit system), which “are not subject to substantive DEC review and approval, public comment to DEC, and/or the opportunity for a hearing before a hearing [sic] before DEC,” Petitioners allege the permit creates a scheme of self regulation prohibited by the Clean Water Act.  (Petition, ¶¶ 83-90.)

As a practical matter this challenge to the MS4 General Permit could have State-wide impacts, as the MS4 General Permit applies to MS4 municipalities across New York State—not just those on Long Island Sound.  If successful, this litigation could ultimately result in significant new pollution control mandates for already financially strapped municipalities.  Enhanced requirements for pollution reduction in TMDL watersheds could mean reduced development opportunities in those MS4 communities, some of which are already struggling with a shrinking tax base.

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[1] Natural Resources Defense Council, Riverkeeper, Waterkeeper Alliance, Soundkeeper, Save the Sound, Peconic Baykeeper, Hudson-Raritan Baykeeper, and Hackensack Riverkeeper.

[2] GP-0-10-002, effective May 1, 2010.  An MS4 is a conveyance or system of conveyances owned or operated by a State, municipality, association, public body (including special districts under State law), Indian tribe or authorized Indian tribal organization, or designated and approved management agency that discharges into waters of the United States; which is “designed or used for collecting or conveying storm water;” and is not a combined sewer or part of a Publicly Owned Treatment Works.  40 C.F.R. § 122.26(b)(8).

[3] NYSDEC classifies all MS4s as small MS4s except for those in New York City.  (Petition, ¶ 46.)

[4] The CWA prohibits the discharge of pollutants to surface waters unless the discharge is pursuant to a National Pollutant Discharge Elimination System (“NPDES”) permit.  33 U.S.C. § 1342.  In New York, NYSDEC has assumed MS4 permitting authority through the State Pollutant Discharge Elimination System (“SPDES”) General Permit program.  See ECL §§ 17-0801 et seq.