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Court Finds New York State's Program to Stem Biggest Source of Water Pollution Too Lax

Larry Levine

Posted January 24, 2012 in Curbing Pollution, U.S. Law and Policy

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A state court has ruled that New York State is failing to take legally required steps to clean up one of the biggest sources of pollution in its waterways -- stormwater runoff

The January 10th decision of the Westchester County Supreme Court comes in a lawsuit NRDC filed in 2010, which challenged a statewide “general permit” for stormwater discharges from municipal sewers.  The court ordered the agency to fix several major flaws in the permit, to ensure all Clean Water Act requirements are met. 

Every time it rains, pollution from developed areas -- such as city and suburban streets, parking lots, driveways, rooftops, and chemically-treated lawns -- is washed into rivers, streams, lakes, and coastal waters across New York state. Polluted stormwater is channeled through municipal separate storm sewer systems (a.k.a. “MS4s”) directly into local waterways, without any treatment. 

The so-called “MS4 General Permit” at issue in the court case regulates stormwater runoff that flows into, and out of, these sewer systems, in hundreds of municipalities across the state -- from Albany to Amityville, Buffalo to Binghamton, Syracuse to Saratoga Springs.  (You can see the full list of covered municipalities here and a map here.  Note that almost all of New York City’s stormwater runoff is regulated under separate permits; exceptions include MTA and state Department of Transportation property within the city, which is covered by the MS4 General Permit.) 

In nearly 300 water bodies in New York -- from Atlantic beaches to Great Lakes beaches, Long Island Sound to the Great South Bay, Onondaga Lake to Lake George, the Hudson, Niagara, and Mohawk Rivers, and many others adjacent to or downstream of developed areas -- stormwater runoff contributes to pollution so severe that it prevents the safe use of public waters for fishing, swimming, drinking, shellfish harvesting, or other recreational and ecological uses.  Reversing this trend will take a lot of work:

  • For several dozen of these polluted waters, the state has developed a pollution budget, known as a Total Maximum Daily Load (“TMDL”), which assigns pollution reduction targets to pollution sources, including urban and suburban stormwater runoff.  These include (see maps here) eight New York City drinking water reservoirs in Westchester and Putnam Counties; Long Island Sound, Oyster Bay, Peconic Bay, and 27 small bays along the north and south shores of Long Island; and Onondaga Lake.  The state’s timelines for cleanup range up to 12 years or more.   
  • Another 250+ on the list (see here) -- which include at least 70 water bodies where stormwater runoff is the sole identified pollution source -- are still waiting for the state to develop a pollution budget to return them to health. 

Increased precipitation and more frequent, intense storms due to climate change will only make this problem worse in the years and decades to come, if we do not address it now.  And the costs of inaction accrue not only to our environment, our health, and our quality of life, but to our economy as well.  For example, NRDC’s annual beachwater quality report, Testing the Waters, consistently finds urban runoff as the primary cause of beach closings and advisory days in the state – costing Long Island more than $60 million in 2007.

As NRDC detailed in our recent Rooftops to Rivers II report, cities across the country are using green infrastructure -- like green roofs, street trees, and porous pavement that soak up urban runoff -- to clean up local waterways and create healthier cities.  That report highlights many stormwater permits around the country that promote or require the use of these cost-effective solutions.

Following years of advocacy by NRDC and its coalition partners, New York has made some important advances in promoting these smarter water practices, especially for new development projects.  But troubling loopholes in the MS4 General Permit -- most of which the court has now ordered the state to close -- would have undercut the effectiveness of these practices.

The court affirmed that the state Department of Environmental Conservation (“DEC”) is responsible, under the federal Clean Water Act and state law, for ensuring that stormwater pollution is reduced “to the maximum extent practicable” -- and reduced to low enough levels that it no longer puts hundreds of water bodies out of compliance with state water quality standards. 

Specifically, the court ordered DEC to re-write the MS4 General Permit to correct three fatal flaws:

          1.    Lack of DEC oversight:  The permit abdicated DEC’s responsibility to review municipalities’ stormwater pollution control measures, to ensure they are sufficient to meet Clean Water Act standards.  Instead, the permit allowed municipalities to self-certify their own plans, creating unchecked opportunities for “misunderstanding, misrepresenting, or misapplying” the applicable requirements.

          2.    Missing compliance schedules:  For cities and towns that send their runoff into water bodies where DEC has established pollution reduction budgets (i.e., TMDLs), the permit failed to establish “compliance schedules” to reduce runoff.  These compliance schedules must include both interim and final deadlines, to ensure steady progress towards meeting the state’s long-term pollution reduction targets.  

          (Unfortunately, the court also ruled that, for the majority of waterways polluted by stormwater, where DEC has not yet developed a TMDL, the permit need not require that MS4s take any immediate steps to decrease their pollution; the court upheld a provision that merely prohibits MS4s from increasing pollution levels in those waterways, until a TMDL is developed.  Given the state’s slow pace of developing TMDLs, and a waiting list that is hundreds of water bodies long (and growing), any cleanup efforts for these remaining waters may be delayed indefinitely, unless DEC chooses to strengthen this provision when it issues a revised permit.)

          3.    Excluding public participation:  The permit denied the general public the right to participate in a DEC hearing, in connection with the agency’s review of each municipality’s proposed stormwater pollution control measures, at which concerned citizens may object to proposals that fail to meet state and federal standards.  Citizen groups often use such Clean Water Act permit hearings to introduce expert testimony -- or even their own data and observations drawn from community-based sampling and knowledge of local conditions -- in support of stronger water quality protections. 

NRDC spearheaded the lawsuit, joined by a coalition of environmental groups throughout the state, including Riverkeeper, Waterkeeper Alliance, Soundkeeper, Save the Sound, Peconic Baykeeper, NY/NJ Baykeeper and Hackensack Riverkeeper.  Working with our coalition, we’ll be following up on this court victory to ensure that DEC promptly corrects the defects in the permit, and sets the state on the right path to reducing stormwater pollution.

Of course, proper oversight by the state, and necessary investment in stormwater infrastructure at the local level, require not only political will, but also the resources to act.  DEC’s budget has been decimated over the last decade -- even more so that other state agencies that have faced budget cuts in lean years.  This case highlights the critical need to restore funding and staffing levels at DEC, so the agency can effectively fulfill its role as the protector of our precious water, air, and natural resources.  It also highlights the importance of funding for cities to implement green infrastructure solutions -- such as the state’s Green Innovation Grant Program

Moreover, as highlighted in a new NRDC report set to be released next week, there is a huge, as-yet-untapped potential for municipalities to stimulate private investment in stormwater retrofits, by coupling stormwater utility fees -- structured to provide “credit” for managing runoff on-site -- with innovative financing mechanisms that are currently being used to fund energy efficiency retrofits.  Stay tuned to this blog next week for more details.

And stay tuned for details on how DEC responds to the court decision.  We are hopeful that the agency will promptly implement the court’s ruling, rather than delay by filing an appeal.  The legal debate has gone on long enough.  The time for real progress to protect our waters is now.

Epilogue

Finally, a few words about two broader implications of this case. 

--> NYC compliance schedule for reducing combined sewer overflows:  In the MS4 permit case, the court squarely rejected DEC’s contention that “compliance schedules” to meet water quality standards are optional in permits.  But, in a separate proceeding, DEC continues to resist calls -- from NRDC and our coalition partners, as well as from the U.S. EPA -- to include, in New York City’s Clean Water Act permits, a compliance schedule for reducing combined sewer overflows that foul local waterways with 30 billion gallons of untreated sewage and polluted runoff annually.  A DEC decision on the New York City matter appears imminent, and the agency should heed the judgment of the court in the MS4 permit case.  (Indeed, in another NRDC case decided last year, which specifically concerned the NYC permits, a state court in Manhattan found that the city’s permits must incorporate compliance schedules, which the state and city had originally negotiated as a side agreement, separate from the permits.  But the state is, so far, refusing to accept the ruling of that court, and seems prepared to flout the law yet again.  DEC has negotiated a new compliance schedule with the city, and now seeks to insulate the negotiated agreement from public participation and citizen enforceability, by unlawfully keeping its provisions separate from the city’s Clean Water Act permits.)

--> EPA’s national stormwater rulemaking: The basic principle in the MS4 permit case -- that municipalities cannot self-certify compliance without oversight by environmental regulators, and that the public has important rights to participate in decisionmaking on these matters -- should be entirely uncontroversial by now.  The Westchester County court merely followed the 9-year-old ruling of a federal appeals court, which rejected portions of EPA’s stormwater regulations for having precisely the same flaws.  That federal court directed EPA to revise the rule and fix the defects, but EPA still hasn’t done so.  In fact, while EPA has promised a wholesale revision to its rules on stormwater runoff, to adopt green infrastructure best practices recommended by the National Research Council, the schedule for that rulemaking has been repeatedly delayed.  The MS4 permit case in New York highlights the need for a national rule, to provide clarity and consistency among states in implementing the Clean Water Act.  EPA must follow-through on its commitment to a much-needed stormwater rulemaking.

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Comments

Jeff ZimmermanJan 25 2012 12:09 PM

Larry, do you have a link to the court's opinion that you can share, or is there one in your memo that I overlooked? Thanks, Jeff

LauraJan 25 2012 02:27 PM

Jeff, The word 'decision' in the 2nd paragraph is hyperlinked - click it and you will be taken to the Jan 10 Opinion.

Ashley Cotter-CairnsJan 29 2012 08:11 PM

Isn't this just typical? There's plenty of solutions for SSO events and overflows. One such is offered by a Quebec-based company, MaidLabs Inc. http://www.municipal-water-flow-meters.com/wastewater-flow-meter.html and these things are not six-figure fixes. We're talking a couple of thou for the future of cleaner, safer drinking water. Time for governments to pony up.

DeanFeb 1 2012 01:55 PM

Ashley, one statement you make is true: "these are not six-figure fixes." The truth is, these are 7-plus-figure fixes. Your flow meter that you are promoting merely measures flow quantity. To fix the problem, very sizeable investments will be needed, and a paradim shift in engineering and construction practices...not to mention the manner in which you and I manage stormwater on our own lots. I too want to see our waters improved, and agree that not enough is being done. But at the same my response is tempered by the reality of the costs to attack the problem, especially in tough economic times. Let's get some creative discussion going on how to go about the changes, and not ignore the real and complicated implications of such changes.

Larry LevineFeb 1 2012 11:22 PM

Great comment Dean -- and very timely too. Check out my latest blog today, for a new NRDC report on how cities can stimulate private investment to help meet the enormous needs: http://switchboard.nrdc.org/blogs/llevine/new_report_us_cities_can_save.html

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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