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.

The DEP rules amend Chapter 31 of Title 15 of the Rules of the City of New York, which regulates the construction, permitting, and inspection of sewer connections.  For a new development, the performance standard establishes a “stormwater release rate” equal to the greater of 0.25 cubic feet per second (“cfs”) or 10% of the new development’s “allowable flow,” the stormwater flow that can be released into a storm or combined sewer based on existing sewer design criteria.  In no case, however, will the new release rate exceed allowable flow. 

For medium and large sized lots, these changes would effectively require a significant increase in stormwater detention on site.  Lots smaller than 5,000 square feet are not likely to have a release rate that exceeds 0.25 cfs, so they will probably only need to comply with existing sewer availability and connection application process requirements.

Redevelopment projects in combined sewer areas may also need to meet new performance requirements.  If a redevelopment requires an alteration permit from the Department of Buildings (“DOB”) and will increase existing impervious surfaces (including building footprints) by more than 20%, the release rate for the altered area must be proportional to the ratio of the altered area to the total site area.  Moreover, on such projects, no new points of stormwater discharge are permitted.  Proposed redevelopments that increase im­pervious surfaces or building footprints by 20% or less are exempt from the stormwater per­formance standard unless an additional sewer connection is proposed.

In addition to the new performance standard, the DEP and DOB have developed new “Guidelines for the Design and Construction of Stormwater Management Systems” (the “Design Manual”) which the City hopes “will ease the development community’s transition to stricter stormwater release rates when connecting to the City’s combined sewer system.”  The stormwater performance standard and Design Manual are key elements of the broader New York City “Green Infrastructure Plan” unveiled by Mayor Bloomberg on September 28, 2010, which aims to reduce combined sewer overflows (“CSOs”) into the City’s waterways by 40% by 2030.

Finally, because the City expects more stringent federal and state Mu­nicipal Separate Storm Sewer Systems (MS4) requirements to be published within the next year, the City expects to revisit the stormwater performance standard and the Design Manual to add stormwater management requirements in separately sewered areas.  The City will then also re­visit the adequacy of the stormwater management program in combined sewer areas.

 For more information on the new stormwater performance standard, contact Michael Bogin.

Shale gas extraction involves hydraulic fracturing or “fracking” – the injection of large amounts of water mixed with sand and chemicals known as “frac fluids” at high pressures.  This high-pressure injection breaks up the shale, releasing natural gas which can then be recovered.  At most wells, however, a significant fraction of the injected water returns to the surface as “flowback” or “produced water.”  Some industry data suggests that up to one million gallons of flowback may be produced from a well in the month following fracturing.

Produced water generally contains not only sand and frac fluids, but also other contaminants, including metals, organic pollutants such as benzene, naturally occurring radioactive material (“NORM”) such as radium, and very high levels of dissolved salts like chlorine and bromine.  In fact, produced water is often several times saltier than sea water.

Existing regulations already prohibit direct discharges of wastewater from shale gas extraction to surface waters.  Some produced water is re-used to fracture additional wells, and a significant portion is disposed of deep underground in brine injection wells.  Some produced water, however, is discharged to sewage treatment plants, which are generally ill-equipped to treat water as salty as shale gas wastewaters.  Discharge of shale gas wastewaters to treatment plants has raised concerns that contaminants could pass through those plants without being effectively treated or interfere with the operation of the plants.  EPA’s existing pretreatment regulations already include a general prohibition on discharges to sewage treatment plants that would either pass through or interfere with such plants; however, sewage treatment plants do not typically test their discharges for organic pollutants, NORM, or salts,  making it difficult to determine whether they are effectively treating fracking contaminants before discharging them to rivers and streams.

In response to these concerns, EPA is considering proposing regulations requiring that shale gas wastewaters undergo some form of pretreatment before being discharged to sewage treatment plants.  EPA is now gathering data on shale gas extraction wastewater, and expects to propose a regulation in 2014.  Additional details on this proposal can be found in EPA’s  2010 Effluent Guidelines Program Plan, which was published in the Federal Register on October 26, 2011. Comments on the plan are due on or before November 25, 2011.

New York has also proposed its own pretreatment regulations for shale gas wastewater. These regulations would require sewage treatment plants to show that they are capable of removing contaminants expected to be present in flowback – including organic pollutants, NORM, and salts – before accepting any shale gas wastewater.  Comments on these and otherNew York fracking regulations, are due before 5 p.m. on December 12, 2011.

For additional information on the proposed wastewater standards, contact Ed Roggenkamp or Steven Barshov.

CSOs are common in older cities where the sewer system was designed to convey both wastewater and stormwater runoff in the same pipes.  In dry periods, wastewater – which includes both washwater and sewage – flows by a combination of gravity and pumps to municipal treatment facilities where it is treated before being discharged into a waterbody.  Problems can arise during heavy rainfalls, as treatment facilities are not equipped to handle the increased volume of wastewater and stormwater runoff.  During CSO events, wastewater and stormwater bypass the treatment facility and are released, untreated, directly into the waterbody. 

Municipal stormwater discharges are regulated under Clean Water Act (“CWA”) Section 402(p), 33 U.S.C. § 1342(p) and 40 CFR § 122.26(a)(3), and by DEC pursuant to its delegated CWA authority.   Under the terms of a 2005 Consent Order with DEC, DEP is required to reduce water quality impairment caused by CSOs.  The new agreement would amend that Order by including new, and more cost-effective, “green infrastructure” compliance options, such as blue and green roofs to slow water from draining too quickly, porous pavement that infiltrates stormwater, the planting of tree pits and streetside swales, and increased use of rain barrels. All of these green infrastructure initiatives are designed to reduce stormwater runoff in order to decrease the volume entering the combined sewer system during a heavy rainfall.  Under the revised agreement, the City also agreed to fund $5.15 million in Environmental Benefits Projects, including provision of additional grants for green instrastructure projects on private property.

DEP has estimated that it will invest $187 million in green infrastructure projects by 2015 in an effort to meet its first milestone for reductions in stormwater entering the combined sewer system.  If DEP fails to achieve its 2015 milestone, it would be required to submit a contingency plan and could face penalties under the Consent Order. 

DEC and DEP will hold a public meeting to discuss the CSO Consent Order modification on November 9, 2011 starting at 6:00 pm at the DEC Region 2, Annex, 11-15 47th Avenue, Long Island City, NY 11101.

The petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction.  The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties. 

The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.  

EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible.  The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.

It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act.  The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law. 

Mark Lebel is a Summer Associate at Sive, Paget & Riesel, P.C.

Background

The Clean Water Act applies to “waters of the United States,” a term that has been regulatorily defined by both EPA and ACOE[1], and which has been extensively litigated – particularly in regard to the extent to which this term encompasses wetlands.  In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court held that wetlands adjacent to a traditional navigable water were properly considered to be “waters of the United States.”  In Solid Waste Agency of Northern Cook County v. ACOE, 531 U.S. 159 (2001), the Court addressed the question of federal jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that such jurisdiction could not be based solely on the presence of migratory birds.  In Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”), the Court addressed the question of CWA jurisdiction over wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters located 11-20 miles away from the wetlands.  The Court failed to reach a majority on this question.  Four justices, led by Justice Scalia, rejected the ACOE’s assertion of jurisdiction, Justice Kennedy concurred in the judgment, and four dissenting justices led by Justice Stevens deferred to the agency’s assertion of jurisdiction.  Since Rapanos, courts have applied both the plurality’s view and Justice Kennedy’s approach, which are described in greater detail below.

• The plurality opinion authored by Justice Scalia stated that, in addition to traditional navigable waters, “waters of the United States” are “relatively permanent, standing or flowing bodies of water,”[2] and that “only those wetlands with a continuous surface connection to [such water bodies], so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”[3]
• Justice Kennedy concluded that “waters of the United States” included wetlands that had a significant nexus to traditional navigable waters, and that wetlands could possess such a nexus if they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” [4]

The Court’s fractured opinion left much confusion in its wake, including over which standard to apply.  In a 2008 guidance document aiming to clarify the scope of CWA jurisdiction, EPA and ACOE took the position that regulatory jurisdiction under the CWA exists over a water body if either the plurality’s or Justice Kennedy’s standard is satisfied. The new guidance, which would supersede the 2008 guidance, is the agencies’ most recent attempt to clarify the evolving and elusive definition of “waters of the U.S.” as pronounced by the Supreme Court.

The 2011 Draft Guidance

As compared to the 2008 guidance, the new guidance places a greater emphasis on Justice Kennedy’s “significant nexus” test, providing an extensive description of how the test is to be applied and discussing a broader range of situations where this test would be dispositive.  In another departure from existing guidance, the new guidance explicitly describes interstate waters as categorically jurisdictional.  Furthermore, the new guidance modifies the agencies’ positions concerning swales, erosional features, and upland-draining ditches characterized by infrequent or low volume flow.  While the 2008 guidance states that these bodies are not jurisdictional, the new guidance only excludes them if they are not tributaries or wetlands, and discusses how to determine if they are tributaries or wetlands.  Finally, as compared to the 2008 guidance, the new proposed guidance provides a more explicit and extensive list of waters over which the agencies would generally not assert jurisdiction, thus providing greater certainty that activities affecting these waters would not trigger federal jurisdiction.

The following table compares selected key features of the 2008 guidance and the 2011 Draft Guidance:

Public Participation and Future Regulations

EPA and ACOE have opened the draft to public comment.  Comments are due July 1, 2011 and may be submitted here (click on the “What Do You Think” tab in the middle of the page).  While borrowing the notice-and-comment procedures applicable to rulemaking, the Guidance explicitly states that it is “not a rule, and hence is not binding and lacks the force of law.”[5] The agencies have indicated their intent to commence rulemaking after the guidance is finalized.[6] However, the American College of Environmental Lawyers (“ACOEL”) has pointed out that certain aspects[7] of the 2011 Draft Guidance are identified as subject to future rulemaking, but other issues are not, “leav[ing] open the question of how much of the Proposed Guidance ultimately will be covered by a proposed rule.”

The purpose of the rule is to protect aquatic species from injury and death sustained when they are drawn against (i.e., impinged) or sucked into (i.e., entrained) a facility’s CWIS.  To accomplish this the proposed Phase II rule has three main components:

• First, the Phase II rule would subject most facilities to an upper limit on how many fish can be killed by the facility through impingement.  The facility would determine which technology would be best suited to meeting this limit, including whether to reduce its intake velocity to 0.5 feet per second.  EPA has proposed this option because studies have shown that at this withdrawal rate most fish can swim away from the CWIS.

• Second, the Phase II rule would require that facilities that withdraw very large amounts of water—125 million gallons per day or more—to conduct specified entrainment mortality studies.  For all other facilities subject to the Phase II rule, however, no such studies are required, and the regulatory agency will determine on a case-by-case basis what type of site-specific entrainment mortality controls to require.  This process would include public input.

• Third, new electric generating units at existing facilities would be required to reduce the intake flow to a level similar to a closed cycle recirculation system by incorporating a such a system into the new unit design, or by making other design changes equivalent to closed-cycle cooling reductions.

These three components implement the mandate in Section 316(b) of the Clean Water Act (“CWA”) seeking to ensure that the “design, construction and capacity of cooling water intake structures reflect the best technology available [“BTA”] for minimizing adverse environmental impact.”   This BTA requirement has been the subject of extensive litigation since the 1970’s. The heart of the debate has been whether power plants should be required to implement costly closed-cycle cooling technology, which re-circulates cooling water and consequently requires relatively little water withdrawal, resulting in the lowest rates of impingement and entrainment.  In the absence of final regulations defining BTA, permitting authorities had been directed to determine BTA for each facility on a case-by-case basis. (Proposed Phase II rule, prepublication version, 14 of 413.)

EPA’s proposed approach to entrainment reduction continues the practice of case-by-case BTA determinations based on regulatory agency discretion.  Although EPA acknowledged that closed-cycle cooling, “reduces impingement and entrainment mortality to the greatest extent,” this requires the construction of large cooling towers that are “not practically feasible” in a number of circumstances when “energy reliability, air emissions permits, land availability, and remaining useful plant life” are considered.  (Proposed Phase II rule, prepublication version, 132-33 of 413.)  Accordingly, the BTA determination for entrainment under the proposed Phase II rule will be based on balancing myriad site-specific factors including the number and types of organisms entrained, social benefits and costs of available entrainment technologies, and impacts on the reliability of energy delivery within the immediate area. (Proposed 40 CFR §§ 125.94(c), 125.98.)

The uncertainty inherent in the case-by-case approach to entrainment BTA is likely to provoke strong opinions from both environmentalists and the regulated community.  Some environmentalists have already voiced their disapproval; in a joint statement, NRDC and Riverkeeper have asserted, “EPA will leave it up to state agencies to figure out requirements for plants, but decades of experience have shown that states lack the resources and expertise to make these decisions on a case-by-case basis and have complained to EPA of the extreme burden of having to do so.”  The Edison Electric Institute, an association of U.S. shareholder-owned electric companies, has not yet issued a press statement regarding the proposed rule.

EPA will accept comments on the proposed Phase II rule for 90 days following its publication in the Federal Register.  Instructions for submitting comments are provided on page 2-4 of the prepublication version of the proposed rule.

The subject site, which is adjacent to the Newtown Creek Superfund site, has been home to heavy industry since the mid-1860’s and has a long history of contamination.  According to the New York State Department of Environmental Conservation, (“DEC”) approximately 17 million gallons of petroleum products have been released, over time, to the subsurface of the northeastern area of Greenpoint, resulting in a spill area that extends over 52 acres.  The spill was discovered in 1978, and product recovery systems have been in place since 1979.  Currently, cleanup operations are being conducted by ExxonMobil, BP, and Texaco under DEC supervision.

The State has long played a role in seeking to spur efforts to clean up the spill.  In 1990, ExxonMobil’s predecessor, Mobil, and the New York State Department of Environmental Conservation (“DEC”) entered into two consent orders whereby Mobil agreed to investigate and remediate petroleum-related “free product” – contaminated petroleum material that floats on top of groundwater – associated with a former Mobil refinery.  In 2007, the State filed in Federal court the action which has now been settled, alleging that ExxonMobil was liable for response, remediation, and other costs incurred by the State in connection with the entire spill.  These claims were brought pursuant to the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA), the Oil Pollution Act, the New York State Navigation Law, the New York State Environmental Conservation Law, and the New York common law of public nuisance, indemnification, and restitution.

Key features of the consent order include the following:

• ExxonMobil is presumptively responsible for the investigation and remediation of “contamination in all media” at the Site, delineated by an attached map, within ExxonMobil’s “Historic Footprint” (the portion of the Site formerly or currently owned or operated by ExxonMobil or its predecessors).  The obligation extends not only to free product, but also to contaminated groundwater, soil, and soil vapors.
• ExxonMobil is presumptively responsible for the investigation of contamination within the Site where DEC has a technically reasonable basis to conclude that existing contamination emanated from the Historical Footprint and followed a preferential pathway such as a utility or pipeline.
• In portions of the Site outside of the Historical Footprint, ExxonMobil is presumptively responsible for the investigation and remediation of petroleum-related groundwater contamination, petroleum-related soil vapor contamination, and petroleum-related contamination in media located in an area specified as the “Retention Zone.”  ExxonMobil’s obligation to investigate and remediate soil contamination is limited to the historic extent of the mapped free product plume.
• To ensure an expeditious cleanup, ExxonMobil must adhere to a schedule and meet specific milestones in its operations.
• ExxonMobil must pay a total of $25 million to the State, to be allocated as follows:
  • $19.5 million to fund Environmental Benefit Projects to improve the environment in Greenpoint.  Projects should address issues that include, but are not limited to, water quality, groundwater, open space, reduction of toxic pollution, and air quality.
  • $1.5 million to compensate the State for past cleanup costs related to the spill.
  • $3.5 million to fund future oversight costs.
  • $250,000 in penalties to be deposited in New York’s Oil Spill Cleanup Fund and Marine Resources Account.
  • $250,000 in damages, which will be used to fund projects to compensate for damaged natural resources in Greenpoint.

The consent order is also notable for the items it does not address or require, including the following:

• The consent order does not address ExxonMobil’s obligations with respect to Newtown Creek, which is now listed as a federal Superfund site. The State reserves all of its rights with respect to Newtown Creek in the consent order.
• The consent order limits to some extent ExxonMobil’s responsibility for the investigation and remediation of those contaminated properties at the Site identified as the “BP Property”, the “Peerless Property”, the “100-120 Apollo St. Property” and the “Metro Property.”

For more information, visit the following links:

• Consent Decree
• New York Attorney General’s Press Release
• New York Times article on the settlement.

New Hope owns and operates a renewable energy facility in the EAA, an area of the Florida Everglades that was formerly wetlands but has been hydrologically managed through pumps and drainage systems since the mid-20^th century to allow for agriculture.  New Hope’s facility, constructed on former sugarcane fields, generates electric power through the burning of non-usable portions of sugarcane as well as wood waste.  New Hope recently obtained state and local permits to construct a monofill on neighboring land, currently farmed for sugarcane, where it could place ash from the waste-burning operations, and thereby avoid trucking the ash to a distant landfill.

Existing ACOE regulations under the Clean Water Act provide that a permit is needed to conduct certain activities within wetlands.  However, exempt from the definition of wetlands are lands that do not support wetlands vegetation under normal circumstances.  The ACOE had in past rulemaking documents explained that “normal circumstances” was not to be read to include properties that had been transformed into dry land.  Also exempt from regulations are “prior converted croplands,” lands formerly wetlands but converted to agricultural use.  Rulemaking documents previously issued by the ACOE provided that a prior converted cropland could only lose such designation if wetland vegetation returned.  In 1993, the ACOE had determined that the land on which New Hope’s power facility is built was prior converted cropland. In addition, the ACOE’s Wetlands Delineation Manual provides that in order to be a regulated wetland, land must exhibit both wetlands hydrology and vegetation, unless one of three types of “atypical situations” apply: (1) an unauthorized activity resulting in the loss of one of these characteristics; (2) man-made creation of a wetland; or (3) natural events.

However, in 2009, the ACOE issued internal memoranda interpreting “normal circumstances” in hydrologically managed lands to mean “pumps off,” and stating that prior converted croplands lost such designation upon a change to non-agricultural use.  Based on these memoranda, the ACOE informed New Hope that it would likely need a permit to construct the proposed monofill.  New Hope filed a lawsuit challenging the memoranda as legislative rules that the ACOE had failed to promulgate in accordance with the APA.  The court agreed, holding that the memoranda extended the ACOE’s regulatory jurisdiction beyond that provided for in existing regulations, and diverged from the Wetlands Manual in deeming lands hydrologically managed with ACOE authorization an “atypical situation” to which the general delineation rules did not apply.  The court therefore enjoined the ACOE from applying these new rules.

New Hope Power Company was represented in the litigation by Daniel Riesel, Dan Chorost and Elizabeth Knauer of Sive, Paget & Riesel and Neal McAliley of White & Case.

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.