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Natural Resources Defense Council v. New York State Department of Environmental Conservation 

The New York Court of Appeals issued a ruling pdf button on May 5, 2015 that dismissed challenges to the state general stormwater permit program and endorsed arguments pdf button made by NACWA and other municipal advocates in the case. The decision in Natural Resources Defense Council, et al. v. New York State Department of Environmental Conservation upholds the current approach used by New York (and, by extension, many other states) in implementing general stormwater permits under EPA's Phase II stormwater regulations, but also sets the stage for future legal battles over the Phase II program.

Background
This case involved a challenge by the Natural Resources Defense Council (NRDC) to New York's General Municipal Separate Storm Sewer System (MS4) Permit, which typically covers smaller sized communities.  Most fundamentally, this case raised the question of whether the explicit standard in the Clean Water Act (CWA) for MS4s to "reduce the discharge of pollutants to the maximum extent practicable" (also known as the MEP standard) supersedes the requirement that CWA permits ensure strict compliance with water quality standards – including the possibility of numeric effluent limits.

In particular, the case addressed whether general MS4 permits must require monitoring of stormwater, as well as what kinds of public notice and comment procedures should be required when communities adopt stormwater management plans under a general MS4 permit.  These issues go to the heart of what kinds of requirements are appropriate in general MS4 permits for small communities, as opposed to requirements that are appropriate in individual MS4 permits for larger cities.

While all stakeholders recognize that stormwater runoff from urban areas is a source of water quality impairment, municipal utilities across the country are concerned that extensive retrofits to capture and treat stormwater, which would likely be necessary if MS4 discharges were required to comply with water quality standards and numeric effluent limits, are impractical and would be extraordinarily costly.

The lower court ruled pdf button in the case that the MEP standard does not require strict compliance with water quality standards in stormwater permits, marking an important win for municipal clean water interests.

The decision was appealed to the New York Court of Appeals but was dismissed by the court in January 2015 on procedural grounds.  In early February 2015, the court allowed NRDC to refile the appeal.

The Ruling
In making its decision, the New York Court of Appeals agreed with NACWA and its partners in the case that municipal stormwater is unique from other regulated CWA discharges in some important ways, including that:

  • Precipitation is naturally occurring, intermittent and variable and cannot be stopped;
  • Although municipalities operate sewer systems, stormwater contamination results from the often unforeseen or unpredictable choices of individual residents and businesses, as well as decisions made long ago about the design of roads, parking lots and buildings; and,
  • Because stormwater runoff flows into surface waters through tens of thousands of individual outfalls, each locality's contribution to the pollution of a particular river or lake is difficult to ascertain or allocate through numeric limitations.

The court further rejected challenges brought by environmental activists to the state general stormwater permit program, agreeing with NACWA and others that the general permit does not establish an "impermissible self-regulatory system," nor does it violate the public participation requirements of the CWA.

The court acknowledged, however, that legal questions have been raised regarding whether EPA and states must provide greater regulatory and public review of Notices of Intent (NOIs) and Stormwater Management Programs (SWMPs) under EPA's Phase II regulations.

The court noted a split on this question among federal appellate courts, and highlighted a current case addressing the issue pending before the U.S. Court of Appeals for the Ninth Circuit where NRDC is seeking to make changes to EPA's Phase II stormwater regulations requiring more individualized reviews of NOIs. The New York court further suggested that the legal questions surrounding the Phase II program will ultimately have to be resolved by EPA and the federal courts – which could possibly include the U.S. Supreme Court. NACWA has already been in discussions with EPA about potential changes to the Phase II program as a result of the ongoing Ninth Circuit case, and will be closely involved in developments moving forward.

NACWA's Involvement/Position

NACWA joined with other groups to file a revised brief pdf button in the case on February 19, 2015 supporting the lower court's decision and presenting a strong defense of the MEP standard.

NACWA has long argued that the CWA MEP standard for MS4 permits does not require strict compliance with water quality standards or the use of numeric effluent limits.  NACWA has litigated multiple cases on this issue over the years, including most recently in litigation before the Maryland Court of Appeals.

Continued NACWA legal advocacy to defend the MEP approach is especially important since, in the absence of a national stormwater rule, environmental activist groups now appear to be pursuing a strategy to challenge MS4 permits at the state level across the nation in an effort to undermine the MEP standard.  Success by activist groups in any one of these state challenges will provide them with a model to use for new cases in other parts of the country.

 

Related Documents (posted in PDF pdf button )