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New York Appellate Court Issues Important Decision for Municipal Stormwater Regulation

On November 13, 2013, the Appellate Division’s Second Department of the Supreme Court of New York issued an important decision relating to municipal stormwater control programs and the use of general permits under the Clean Water Act in Natural Resources Defense Council v. New York State Dept. of Environmental Conservation, Nos. 2012-02913 and 2012-06330 (N.Y. App. Div.2d Nov. 13, 2013).  The Second Department upheld the New York General Permit for discharges from a “municipal separate storm sewer system” (“MS4”) and reversed a lower court’s decision that would have increased the administrative burden on projects requiring MS4 permits.

The Federal Clean Water Act (“CWA”) requires that dischargers to surface waters obtain a permit under the national pollution discharge elimination system (“NPDES”) or a federally-approved state pollution discharge elimination system (“SPDES”).  The United States Environmental Protection Agency delegated to the New York State Department of Environmental Conservation (“DEC”) the authority to issue these permits individually or by general permits, in which individuals can enroll.  DEC issued a General Permit for MS4s, which set forth the requirements for permitting of storm water discharges from municipalities’ storm sewer systems.

The plaintiffs alleged that DEC’s program violated various federal and state laws.  The lower court issued an order striking down the General Permit, in part, and upholding the General Permit, in part.  The lower court held that the General Permit created an impermissible self-regulatory regime, failed to specify compliance schedules with respect to effluent limitations and water quality standards, and that the General Permit unlawfully failed to provide an opportunity for a public hearing on proposed notices of intent before they were submitted to DEC.  The decision, though stayed pending appeal, would have nullified the DEC General Permit and required the agency to revise it in accordance with the ruling.

The order also held that the General Permit for MS4 General Permit ensured that small municipalities complied with state water quality standards, ensured that small municipalities monitored their storm water discharges, and provided for public hearings on proposed stormwater management plans and proposed watershed improvement strategies, all of which complied with the requirements of the CWA.

The Appellate Division reversed the order inasmuch as it required revision to the General Permit, and upheld the lower court’s holding that the General Permit complied with state and federal laws.  Importantly, the decision means that municipalities need not go through onerous notice and hearing procedures each time they file a notice of intent to enroll in the General Permit for MS4.  The Appellate Division saved DEC and the municipalities from a ruling of the lower court that would have essentially eviscerated the General Permit scheme for stormwater control in New York.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume III, Number 318


About this Author

Steven Russo, Greenberg Traurig Law Firm, New York, Environmental and Real Estate Litigation Attorney

Steven C. Russo chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, environmental permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, toxic tort litigation, environmental crimes, Brownfields redevelopment, government, energy and the environmental aspects of land use and real estate law. Steven is equally experienced litigating in federal and state courts, as well as counseling his clients with regard to environmental liability risk and due diligence,...