Court declares New York State—s program to stem stormwater pollution inadequate

 NEW YORK — Forty years after the passing of the Clean Water Act, the Westchester County Supreme Court ruled Jan. 10, 2012, 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 decision comes after a lawsuit filed by the Natural Resources Defense Council, Waterkeeper organizations in the region, and other partners, challenging the 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.

The lawsuit, filed in 2010, sought to address stormwater pollution concerns in nearly 300 water bodies in New York, including those under scrutiny in Westchester County. The court rejected the state’s contention that compliance schedules to meet water quality standards are optional in permits, following the precedent of a previous ruling of a federal appeals court rejecting the U.S. Environmental Protection Agency’s (EPA) stormwater regulations for the same reasons.

“The faults in New York’s stormwater permits are emblematic of nationwide deficiencies in addressing stormwater pollution under the Clean Water Act,” said Marc Yaggi, executive director of the Waterkeeper Alliance. “Waterkeeper Alliance and our Waterkeeper organizations across the country seek improved oversight by environmental regulators and meaningful participation in decision-making that affects the quality of our waterways and health of the communities that depend on them."

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:

• 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.

• 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.

• 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.

“We are pleased that the Court agreed with us that DEC is responsible, under both state and federal law, for ensuring that stormwater pollution is reduced to the maximum extent possible. DEC is now required to correct fatal flaws in its plan to clean up stormwater runoff, one of the biggest sources of pollution in our waterways,” said Paul Gallay, president of Hudson Riverkeeper. “The stakes couldn’t be higher, as stormwater runoff threatens our water quality and negatively impacts our economy and the ecosystems of our waterways. We will continue to work with our partner groups to make certain that DEC implements the court’s ruling and makes the changes necessary to enable us to protect our waters.”