In a significant blow to New York’s stormwater pollution control program, last month a state court invalidated the Clean Water Act general permit covering discharges from urban and suburban municipalities’ separate storm sewer systems.
The January 10, 2012 decision from Judge Joan Lefkowitz of the Supreme Court, Westchester County held that the 2010 General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (“MS4 General Permit”) violated the Clean Water Act (“CWA”) and the provisions of New York law that implement it.
The MS4 General Permit replaces individual State Pollutant Discharge Elimination System (“SPDES”) permits for hundreds of municipal storm sewer outfalls outside of New York City. Because these outfalls share common characteristics, the Department of Environmental Conservation (“DEC”) issued a general permit that governs the discharge of stormwater by municipalities across the state.
To obtain coverage under the MS4 General Permit, municipalities must submit a Notice of Intent (“NOI”) to DEC and comply with the General Permit terms. NOIs must propose an initial Stormwater Management Plan (“SWMP”) to effectuate pollution reductions, which must be developed and implemented within three years of gaining permit coverage.
Judge Lefkowitz struck down the MS4 General Permit on three grounds.
First, the Court held that the MS4 General Permit fails to require a reduction of pollutant discharge to the “maximum extent practicable”, as required by the Clean Water Act and its New York equivalent, because it “creates an impermissible self-regulatory system.” Relying heavily on a 9th Circuit decision which declared NOIs to be “functionally equivalent to detailed applications for individual NPDES permits,” the Court emphasized that the MS4 General Permit does not require DEC to review a municipality’s SWMP prior to approving coverage. Thus, “the initial determination of what particular control measures would be implemented and whether those measures would in fact reduce pollutant discharge to the level mandated by the applicable statute or regulation were left to each operator to make after it had already been authorized to discharge.”
Applying the same “functional equivalent” rationale, the Court also held that the NOI is effectively a permit application without an opportunity for a “public hearing,” as required for CWA permit applications. The Court acknowledged that the MS4 General Permit itself was subject to extensive public review prior to issuance, but this was insufficient because, under the permit, neither the public nor DEC is able to review the specific pollution reduction measures contained in a municipality’s SWMP until after the municipality obtains coverage allowing it to discharge.
Finally, the Court held that the MS4 General Permit is unlawful because, while it requires MS4s to reduce pollutant loads to water bodies that violate State water quality standards, the permit does not mandate compliance within the nine month timeframe required by law.
While the plaintiff environmental groups in this case have proclaimed a victory, DEC’s time to appeal has not yet expired. If it is ultimately upheld, Judge Lefkowitz’s decision may have repercussions not only for municipalities, but also for construction sites and industrial activities covered by DEC’s Construction Stormwater General Permit and Multi-Sector General Permit. SPR will be tracking developments related to this decision and will provide updates as applicable.
For more information about stormwater permitting, please contact Michael Bogin.
