SPR represents the Coalition for Buzzards Bay in the suit, which has been widely reported in the news media.  Read more on the suit from the Associated Press, Washington Post, and Boston Globe.  A copy of the Complaint can be accessed here (pdf).  For more information, contact Steven Russo.

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Management Design Manual’s technical standards for post-construction stormwater is unlawful because that manual is outdated, and does not sufficiently reduce pollutant discharges to the “maximum extent practicable.”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.

[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.

Clean Water Act § 316(b) requires EPA to promulgate regulations to ensure that the location, design, construction, and capacity of CWIS reflect the best technology available (“BTA”) to protect aquatic organisms from being killed or injured by impingement or entrainment.  EPA divided this rulemaking into three phases.  The first of these, the so-called “Phase I Rule,” governs all new industrial facilities that propose to withdraw 2 million gallons per day (“MGD”) of water with 25 percent or more of the water to be used for cooling.[1] In July 2004, EPA promulgated its “Phase II Rule,” which applied only to existing CWIS at “electric generating plants” and then only to those that are designed to withdraw at least 50 MGD and use at least 25 percent of their withdrawn water for cooling.  However, EPA suspended the Phase II Rule on July 9, 2007 following a decision by the United States Court of Appeals for the Second Circuit holding that EPA had improperly interpreted BTA as “best technology available commercially at an economically practicable cost” and so engaged in cost-benefit analysis not allowed under § 316(b).[2] In 2009, however, the U.S. Supreme Court held EPA had permissibly relied on cost-benefit analysis in developing the Phase II rule.[3] EPA now anticipates combining Phases II and III into one rulemaking covering all existing facilities.

As explained by the Agency, the proposed survey “will allow EPA to estimate total benefits for the proposed regulatory options and fulfill Executive Order 12866 which requires the estimation of the potential benefits and costs to society of the rulemaking.”  The proposed survey would ask respondents whether or not they would vote for policies that would increase their cost of living in exchange for specified changes in: (a) impingement and entrainment losses of fish; (b) commercial fish sustainability; (c) long-term fish populations; and (d) conditions of aquatic ecosystems.   The intended sample size for the survey is 2,000 households.

Comments on the proposed information collection request will be accepted until September 20, 2010.

[2] Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007) (“Riverkeeper II”).

[3] Entergy Corp. v. Riverkeeper Inc., __ U.S. __, 129 S.Ct. 1498 (Apr. 1, 2009).

The majority of facilities in New York State that use cooling water intakes employ a once-through process whereby water is withdrawn from a waterway, converted to steam used to spin turbines and then later discharged back into the waterway at high temperatures. The draft BTA standards requiring a closed-cycle process have already been used by NYSDEC to support a permit denial for the Indian Point Nuclear Power Plant.[1] Indian Point requested a hearing on matters of law regarding the permit denial and Administrative Law Judge Villa will be presiding over the hearing July 20 with an issues conference schedule for July 21.

All facilities designed to withdraw 20 million or more gallons of water per day and require State Pollution Discharge Elimination System (“SPDES”) permits would be subject to the proposed new BTA standard, with certain exceptions. If an operator can demonstrate that closed-cycle cooling technology can not be physically implemented at a particular location, NYSDEC will require other measures to achieve equivalent reductions in entrainment and impingement.  Such measures could include physical barriers, fish return systems, deterrent systems, and possible flow reductions and outages.[2] NYSDEC indicated in the Indian Point decision that cylindrical wedgewire screens would not be sufficient alone to meet this requirement, but wedgewire technology in addition to other modifications could achieve a 90% reduction in entrainment and impingement in lieu of adopting closed-cycle technology.

In determining what technology is feasible for reducing environmental impacts, the Supreme Court held that costs may be considered at the discretion of EPA or EPA’s designee, overturning a Second Circuit decision barring cost-benefit analysis under CWA §316(b).[3] Referencing that Supreme Court decision in its draft policy, NYSDEC defines feasible technology as “not wholly disproportionate to environmental benefits.”[4] The test places the burden on permit applicants who must show that relative costs are unreasonable.  In addition, the draft policy states that the only environmental benefits to weigh in a cost-benefit analysis for BTA are reductions in entrainment and impingement.[5]

Comments on the draft policy should be submitted before 5 p.m. on July 9 and sent via mail to: BTA Policy Comments, NYS DEC – Division of Fish, Wildlife and Marine Resources, Bureau of Habitat, 625 Broadway 5th Floor, Albany, NY 12233-4756; or via email through the NYSDEC website.

Maggie Macdonald is a summer associate at Sive, Paget & Riesel, P.C.

[2] Draft Policy, Appendix A at 11.

[3] Entergy Corp. v. Riverkeeper, 129 S.Ct. 1498 (2009).

[4] Id.

[5] Draft Policy, Appendix A at 15.

NYSDEC’s decision focused on Indian Point’s cooling water intake structures, which draw up to 2.5 billion gallons of water daily from the Hudson River.  It based its denial on the “significant adverse impact upon aquatic organisms” caused by these structures, on the leakage of radioactive material into the river, and thermal discharges into the river.  The Hudson River’s cold water is critical to the steam-powered process, triggered by the heat of nuclear reactions, that generates electricity.

Since the power plant’s inception, fish and other organisms have been killed or injured by the operation of the cooling water intake structures.  The structures use “once through” technology to draw in vast quantities of water – containing fish and organisms, which are discharged back to the river after the water is used.  Larger organisms, such as fish, are “impinged,” or crushed against the cooling water intake structures as they are sucked against the machinery.  Smaller organisms, such as eggs, plankton and larvae, are “entrained,” or drawn into the cooling water intake structures, where they are injured or killed.  In its application for a WQC, Entergy proposed the continued use of once-through technology, combined with the use of cylindrical wedge-wire screens to reduce impingement and entrainment.  

NYSDEC determined that Entergy’s proposal did not represent the “best technology available for minimizing adverse environmental impact,” a standard required by New York regulations, 6 NYCRR § 704.5, and the Clean Water Act, CWA § 316(b), 33 U.S.C. § 1326(b).  NYSDEC stated that the “closed-cycle” cooling system, which recycles cooling water within the plant, represented the best technology to minimize entrainment and impingement and was “available” to Entergy despite being expensive to implement.  In contrast, NYSDEC determined that the addition of cylindrical wedge-wire screens to once-through intake structures not a “reasonable alternative intake technology” because it would only “reduce adverse environmental impacts;” it would not “minimize” them.  Specifically, NYSDEC stated that the utility of the proposed screening technology was not proven at a facility using as much water as Indian Point, and, according to available studies, would not result in sufficient reduction in entrainment. 

In addition to its determinations under the “best technology available” standard, NYSDEC also stated that the Indian Point’s once-through cooling water intake structures do, and would continue to, result in the unlawful “taking,” or harm, to the shortnosed sturgeon (a New York endangered species) and the Atlantic sturgeon (a federally protected species) under state and federal law.  Finally, the dangers posed to fish by impingement and entrainment, thermal discharges, and radioactive leakages would also render the water surrounding Indian Point unsuitable for its designated best purpose under state law – secondary contact recreation and fishing.  See 6 NYCRR § 701.11.     

Industry, environmentalists, and regulators have battled over the environmental damage caused by Indian Point’s once-through cooling system for the nearly four decades since the plant opened.  NYSDEC’s denial letter recites the complex history of the statutory, regulatory, and advocacy factors which resulted in Indian Point’s continued use of once-through cooling technology in the face of state and federal “best technology available” requirements.  By specifically endorsing closed-cycle cooling technology as “available” and “feasible” and rejecting Entergy’s proposed alternative as environmentally inadequate, NYSDEC underscored that it does not interpret its cooling water intake regulations as grounds for traditional cost-benefit analysis.  In contrast, EPA regulations interpreting CWA § 316(b), 40 CFR  § 125.90 – 125.99, are influenced by cost-benefit analysis; they allow less expensive alternatives to closed-cycle technology and allow the agency to issue variances based on cost-benefit analysis. Last year, in Entergy v. Riverkeeper, 129 S. Ct. 1498 (2009), a divided Supreme Court upheld these regulations.  While the Court held that § 316(b) does not bar EPA from using cost-benefit analysis, it noted that the statute does not require cost-benefit analysis, either. 

NYSDEC’s decision has not caused Indian Point’s immediate shutdown because Indian Point’s current operating licenses have not yet expired.  Furthermore, Entergy may appeal the decision administratively by requesting a hearing within 30 days.  According to the New York Times, Entergy may lobby Congress to repeal the Nuclear Regulatory Commission’s requirement that licensees hold a state water quality certificate.  The result for Entergy and Indian Point will likely have national repercussions in light of the Obama Administration’s greater emphasis on nuclear energy as a non-fossil fuel source of electricity.

Relatively new stormwater regulations—known as Phase II regulations for MS4s—required certain small regulated municipalities to develop and implement stormwater management plans by 2008.  Generally enforcement of these requirements takes place at the state level, but EPA retains certain authority to undertake direct enforcement.  Recently, EPA warned the states on lax Clean Water Act enforcement.

Under Phase II regulations, municipalities must implement “minimum control measures,” to demonstrate compliance, including: (1) public education and outreach, (2) public participation/involvement, (3) illicit discharge detection and elimination, (4) construction site runoff control, (5) post-construction runoff control, and (6) pollution prevention/good housekeeping.  Failure to implement these measures effectively will create a risk of enforcement and penalties.

EPA’s willingness to impose penalties on municipalities in Massachusetts and New Hampshire, as well as the significant penalty imposed by Region 2 on noncompliant construction activities, signals that EPA is committed to serious enforcement against stormwater violations.  Federal enforcement may in turn spark additional attention and enforcement from state-level authorities.  Municipalities covered by the MS4 regulations and entities engaged in construction activities are on notice that they need to comply with all stormwater regulations, including Phase II MS4 requirements.

• EPA Orders Village of Port Chester, N.Y. to Fix the Way it Handles Stormwater; Comply with Clean Water Act
• Nine Mass. and N.H. Communities Face Actions to Improve Storm Sewer Pollution
• EPA Fines Companies for Improper Stormwater Management at Construction Site
• Read more on Clean Water Act issues

In a July 2 memo, however, EPA Administration Lisa Jackson warned, “[t]he level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low … We must make sure that strong and effective action is taken when serious violations of law threaten water quality, and we must boost EPA’s enforcement presence against serious violators.”

Following that memo, EPA has posted new data on the status of states’ Clean Water Act enforcement online, along with reports assessing the effectiveness of these delegated programs.  New York had the second largest total number of non-compliant major facilities in 2008 (276), and its major facility non-compliance rate (82%) was higher than the national average (55%).  Many of these violations were technical, however, and the rate of significant non-compliance for major New York facilities (19.5%) was lower than average (24.4%).

Under the Clean Water Act, EPA retains the authority to withdraw a state’s permitting authority “where the state’s enforcement program fails to comply with” federal requirements.  40 C.F.R. § 123.63.  While federal revocation is a rare and extreme step, and Jackson’s memo recognized the critical state role in Clean Water Act permitting, EPA’s increased attention may spur some states to step up their own enforcement efforts.

In 2005, the Army Corps. issued a permit to Coeur Alaska Inc. (“Coeur”) with respect to reopening the Kensington Gold Mine, north of Juneau, Alaska.  Couer’s plans included use of a “froth flotation” technique that churns mined rock in tanks of water, causing gold-bearing materials to float to the surface.  Once the gold is skimmed off the top, a mixture of crushed rock and water is left behind.  This mixture, known as slurry, is typically disposed of in tailing ponds.  Coeur proposed an alternative disposal method that would involve pumping 4.5 million tons of slurry into Lower Salt Lake and then discharging purified lake water into a downstream creek.  The Army Corps approved of Coeur’s plan and issued a fill permit under Section 404 of the Clean Water Act.

Environmental groups challenged the permit by arguing that EPA, and not the Army Corps, had authority to issue the permit.  The environmental groups claimed that the Army Corps permit violated the CWA’s new source performance standards (“NSPS”) which prohibit the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process” for mining gold. 40 CFR §440.104(b)(1).  The U.S. District Court of Alaska found for the Army Corp by holding that the permit was properly issued under the CWA.  The Ninth Circuit Court of Appeals reversed and blocked the permit, holding that the discharge was “prohibited by clearly applicable and specific performance standards.”  486 F.3d 638 (9th Cir. 2007).

In a 6-3 decision, the Supreme Court found that the agencies’ permitting authority under the CWA was mutually exclusive, with the Army Corps’ authority extending over permits for the discharge of “dredged or fill material” and the EPA’s authority applying to permits for the discharge of “any pollutant,” except where the permit is for the disposal of fill material.   Consequently, the Court established that the Army Corps had sole authority to issue permits to discharge slurry because slurry is a type of “fill material.”   Both agencies define “fill material” as material changing the bottom elevation of water and “discharge of fill material” to include “placement of … slurry, or tailings or similar related materials.” 40 CFR § 232.2.

The dissent touted the CWA’s “text, structure, and purpose” as a mandate to adhere to EPA’s pollution-control requirements.  It argued that the pollution-control mandate was intended to be read throughout the CWA and adherence to the mandate was one of the main reasons the EPA and not the Army Corps, should have jurisdiction over the permit process to dispose of slurry.

• Further reading: Justices Say Waste Can be Dumped in Lake (NYTimes)

Section 404 of the Clean Water Act regulates the discharge of dredged or fill material into “navigable waters,” defined as “the waters of the United States, including the territorial seas.” The Environmental Protection Agency and Army Corps of Engineers, which issues wetlands fill permits, had historically interpreted “navigable waters” to cover a broad range of lakes, rivers, streams, and wetlands that were not navigable in fact – limited by the constraints of the Constitution’s Commerce Clause. In SWANCC, however, the Supreme Court suggested that the Clean Water Act covers only those wetlands with a “significant nexus” to waters that were actually navigable, rejecting the Army Corps’ more expansive interpretation. A divided Supreme Court further muddied the waters in Rapanos, with the plurality opinion limiting Clean Water Act jurisdiction to wetlands with a surface connection to navigable waterways or seasonal tributaries, and a key concurrence by Justice Kennedy retaining SWANCC’s significant nexus test.

Appellate courts have struggled to reconcile Rapanos’s multiple standards, and earlier this year the Obama administration called on Congress to clarify the Clean Water Act’s scope. The Environment and Public Works Committee responded with a bill that replaces the phase “navigable waters” with “waters of the United States” and “reaffirms Federal Jurisdiction over all waters of the United States, as the [Clean Water Act] was applied and interpreted” prior to SWANCC and Rapanos.” An amendment by Sen. Max Baucus (D-MT) at yesterday’s mark-up excludes “prior converted cropland” and “waste treatment systems,” including agricultural waste ponds and lagoons.

While the bill passed out of the Senate Committee 12-7, Sens. Jim Inhofe (R-OK) and Mike Crapo (R-ID) have already announced their plans to put a hold on it, meaning 60 votes would be needed to bring the legislation to a floor vote.

In 2007, Sotomayor authored the Second Circuit opinion in Riverkeeper v. EPA, holding that the Environmental Protection Agency could not rely on cost-benefit analysis in determining the “best available technology” required to minimize nuclear power plants’ cooling towers’ impacts on aquatic life.  475 F.3d 83 (2007).  Riverkeeper arose under the Clean Water Act, but it follows a diverse line of cases on whether agencies can base environmental decisions on cost-benefit analysis when the underlying statute is silent.  Last year, the Supreme Court reversed this opinion, with Justice Souter in the three-member dissent.

In US v. Giordano, a non-environmental case, Sotomayor rejected an attempt to limit Congress’s regulatory power under the Commerce Clause, holding that a national telephone network was an instrumentality of interstate commerce even if the calls in question occurred within a single state.  442 F.3d 30 (2006).  In recent years, a number of federal environmental laws, including the application of the Clean Water Act to “isolated” wetlands and the use of the Endangered Species Act to protect purely intrastate species, have been challenged as exceeding Congress’ commerce powers, leading to a 2007 Supreme Court opinion that set forth a new test for federal wetlands protections.  The Obama administration recently expressed support for legislative clarification of the scope of CWA jurisdiction.

If her opinions in Riverkeeper and Giordano are any guide, it is likely that Sotomayor, if confirmed, will bring to the Supreme Court a deference to Congressional determinations requiring environmental protection, even in the face of potentially high economic costs.  She also may hold a relatively broad view of Congress’ interstate commerce authority, which may stymie further attempts to challenge environmental statutes on those grounds.

• Further reading: Obama Supreme Court Pick Has Small but Solid Record on Environmental Rulings (Grist)