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

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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 48

In the Matter of Natural

Resources Defense Council, Inc.,

et al.,

Appellants,

v.

New York State Department of

Environmental Conservation,

Respondent.

Lawrence M. Levine, for appellants.

Barbara Underwood, for respondent.

Nadia B. Ahmad et al.; Citizens Campaign for the

Environment; East of Hudson Coalition; City of New York et al.,

amici curiae.

READ, J.:

Runoff from rain and snow melt courses over roofs,

roads, driveways and other surfaces, picking up pollutants along

the way. It then passes through municipal storm sewer systems

into rivers and lakes, adding the pollutants accumulated during

its journey to those bodies of water. These municipal storm

sewer systems thus differ from other entities that discharge

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effluents into our State's surface waters (for example,

industrial or commercial facilities and sewage treatment plants)

in three major ways: 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 (for example, to let litter

pile up or to use certain lawn fertilizers), 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.

Federal and state law prohibit discharges of stormwater

from New York's municipal separate storm sewer systems in

urbanized areas (referred to as MS4s) without authorization under

a State Pollutant Discharge Elimination System (SPDES) permit.

As an alternative to an individual SPDES permit, municipal

separate storm sewer systems that serve a population under

100,000 (or small MS4s) may seek to discharge stormwater under a

SPDES general permit. The 2010 General Permit -- the subject of

this lawsuit -- requires these municipal systems to develop,

document and implement a Stormwater Management Program (SWMP) in

compliance with detailed specifications developed by the New York

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State Department of Environmental Conservation (DEC or the

Department) to limit the introduction of pollutants into

stormwater to the maximum extent practicable. To obtain initial

coverage (i.e., authorization to discharge) under the terms of

the 2010 General Permit, small MS4s must first submit a complete

and accurate notice of intention (NOI) to DEC.

After the 2010 General Permit took effect on May 1st of

that year,1 the Natural Resources Defense Council, Inc. (NRDC)

and seven other environmental advocacy groups (collectively,

NRDC) brought this hybrid CPLR article 78 proceeding/declaratory

judgment action against DEC to challenge certain aspects of the

2010 General Permit. NRDC claims generally that by allowing

small MS4s to gain coverage under the 2010 General Permit based

upon an NOI reviewed only for completeness and not subject to an

opportunity for a public hearing, DEC has created an

"impermissible self-regulatory system" that fails to force local

governments to reduce the discharge of pollutants to the maximum

1

DEC issued the first General Permit in 2003 for a five-year

period, and in 2008 issued a revised two-year General Permit,

which expired on April 30, 2010. The five-year 2010 General

Permit expired on April 30, 2015. A substantively identical new

two-year General Permit took effect on May 1, 2015 and expires on

April 30, 2017. Almost all the 500 plus small MS4s authorized to

discharge stormwater under the challenged 2010 General Permit

were initially covered by the 2008 (or, before that, the 2003)

General Permit. The 2010 General Permit authorized them to

discharge stormwater on an interim basis for up to 180 days after

May 1, 2010. These small MS4s gained coverage under the 2010

General Permit by submission of their Annual Reports (discussed

later in more detail) due in June 2010; they were not required to

and did not submit NOIs.

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extent practicable -- the statutory standard -- and violates

federal and state law.2 Equating NOIs with applications for

individual SPDES permits, Supreme Court granted partial relief to

NRDC (35 Misc 3d 652 [Sup Ct Westchester County 2012]). The

Appellate Division, as relevant here, rejected NRDC's federal and

state law challenges to the 2010 General Permit (120 AD3d 1235

[2d Dept 2014]). We granted NRDC leave to appeal (23 NY3d 901

[2014]), and now affirm.

I.

Background

The NPDES and SPDES Programs

The Federal Water Pollution Control Act Amendments of

1972 (Pub L No 92-500, 86 Stat 816-904 [codified as amended at 33

USC §§ 1251-1388 [2014]), popularly known as the Clean Water Act,

ushered in the modern era of water pollution control whereby

discharges of pollutants from "point sources" (i.e., "any

discernible and confined discrete conveyance" [33 USC § 1362

(14)]) into the waters of the United States are prohibited except

as authorized by a National Pollutant Discharge Elimination

2

As previously observed (see n 1, supra), virtually all the

small MS4s in the State achieved coverage under the 2010 General

Permit by virtue of NOIs that they submitted to DEC for initial

coverage under the 2003 or 2008 General Permits, and their 2009

Annual Reports. As a result, the practical effect of a ruling in

favor of NRDC is not self-evident, and threatens to create

considerable confusion; i.e., would these small MS4s be required

to resubmit an NOI, or would they be grandfathered? (see 6 NYCRR

750-1.21 [d] [3]).

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System (NPDES) permit issued by the Administrator of the United

States Environmental Protection Agency (EPA or the Agency).

"Generally speaking," the statute envisaged site-specific

individual NPDES permits that "place[d] limits on the type and

quantity of pollutants that can be released into the Nation's

waters" (South Florida Water Mgmt. Dist. v Miccosukee Tribe of

Indians, 541 US 95, 102 [2004]).

Although the federal government plays the dominant role

in water pollution control under the Clean Water Act, states may

continue their own water pollution control regulations as long as

they are at least as stringent as federal law demands (33 USC §

1370). And importantly, states are allowed to administer the

NPDES permit program for discharges into navigable waters within

their borders, subject to the Administrator's approval (33 USC §

1342 [b]). To attain this approval, a state must demonstrate

that its permit program meets the requirements of the Clean Water

Act and that the state possesses adequate legal authority to

implement it (id.). In 1973, the Legislature amended the

Environmental Conservation Law to create SPDES, New York's

version of NPDES (see L 1973, ch 801 [adding a new title 8 to

article 17 of the Environmental Conservation Law and amending

other provisions of article 17 to bring them into conformity with

new title 8]). EPA approved New York's SPDES program, which is

administered by DEC, in 1975.

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EPA's Stormwater Exemption

In its 1973 regulations implementing the NPDES program,

EPA excluded discharges from a number of classes of point sources

from the permit requirement, including separate storm sewers

containing only storm runoff uncontaminated by any industrial or

commercial activity (see 38 Fed Reg 18000 [July 5, 1973] [40 CFR

former 124.11 (f)]). EPA justified the exclusion as necessary to

conserve its regulatory resources for more significant polluters.

The United States Circuit Court for the District of Columbia

ruled that the Clean Water Act did not give EPA this option, but

interpreted the statute to grant the Agency considerable leeway

in setting permit terms (see Natural Res. Def. Council v Costle,

568 F2d 1369, 1377 (DC Cir 1977]). Noting its "sensitiv[ity] to

EPA's concerns of an intolerable permit load," the D.C. Circuit

suggested that area or general permits would be a permissible and

"well-established" device for coping with the avalanche of NPDES

permit applications anticipated in the wake of its decision (id.

at 1380-1381; see also Natural Res. Def. Council v Train, 396 F

Supp 1393, 1402 [DDC 1975] [EPA has "substantial discretion to

use administrative devices, such as area permits," to make its

burden of permit issuance "manageable"]).

The Water Quality Act

In the Water Quality Act of 1987 (Pub L No 100-4, 101

Stat 7 [codified as amended in scattered sections of 33 USC])

(the Water Quality Act), Congress endorsed permits for municipal

stormwater discharges "issued on a system- or jurisdiction-wide

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basis" (33 USC § 1342 [p] [3] [B] [i]). These permits were

mandated to "include a requirement to effectively prohibit non-

stormwater discharges into the storm sewers," and

"controls to reduce the discharge of pollutants to the

maximum extent practicable, including management

practices, control techniques and system, design and

engineering methods, and such other provisions as the

Administrator or the State determines appropriate for

the control of such pollutants" (id. at § 1342 [p] [3]

[B] [ii], [iii] [emphasis added]).

The Water Quality Act did not define "maximum extent

practicable," but section 1342 (p)'s text and legislative history

indicate that Congress had in mind something other than

conventional end-of-pipe control techniques and numeric effluent

limits (see 132 Cong Rec 32, 381 [1986] [remarks of Sen.

Stafford, then Chairman of the Senate Environment and Public

Works Committee] ["These permits will not necessarily be like

industrial discharge permits. Often, an end-of-pipe technology

is not appropriate for this type of discharge"]; see also

Defenders of Wildlife v Browner, 191 F3d 1159, 1164-1165

[recognizing that Congress "chose not to include" provisions

(like effluent limitations under 33 USC § 1311) for municipal

storm-sewer discharges], amended on denial of rehrg, 197 F3d 1035

[9th Cir 1999] [emphasis added]).

The Water Quality Act established a timetable for EPA

to issue NPDES permitting regulations and for EPA and states to

issue permits for certain categories of stormwater discharges,

principally discharges associated with industrial activity and

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discharges from large municipal separate stormwater sewer systems

(those systems serving a population of 100,000 or more) (see 33

USC § 1342 [p] [2], [4]). But for the many small municipal

systems (those serving a population under 100,000), the Water

Quality Act embraced a different approach.

The statute directed the Administrator, in consultation

with the states, to conduct studies and report the results to

Congress before developing a program to regulate stormwater

discharges from these systems (see 33 USC § 1342 [p] [5]). The

study was meant to identify sources or classes of stormwater

discharges for which NPDES permits were not required by the Clean

Water Act; determine, to the maximum extent practicable, the

extent and nature of their pollution; and develop procedures and

methods to mitigate the effect of these discharges on water

quality (id.). Congress then directed EPA to "issue regulations

(based on the results of the studies . . . ) which designate

stormwater discharges . . . to be regulated to protect water

quality and [to] establish a comprehensive program to regulate

such designated sources" (id. § 1342 [p] [6]). This program was

to be designed, "at a minimum," to

"(A) establish priorities, (B) establish requirements

of State stormwater management programs, and (C)

establish expeditious deadlines. The program [might]

include performance standards, guidelines, guidance,

and management practices and treatment requirements, as

appropriate" (id. [emphasis added]).

New York's 1988 Legislation

By chapter 360 of the Laws of 1988, the Legislature

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amended the Environmental Conservation Law to authorize DEC to

issue general SPDES permits, as allowed by the Water Quality Act.

To this end, new section 17-0808 specified at subdivision three

that

"[p]ermits for discharges from municipal storm sewers:

"a. May be issued on a system or jurisdiction-wide

basis, pursuant to paragraph (a) of subdivision seven

of section 70-0117 of this chapter;

"b. Shall include a requirement which regulates non-

storm-water discharges into the storm sewers; and

"c. Shall require controls to reduce the discharge of

pollutants to the maximum extent practicable, including

management practices, control techniques and system

design and engineering methods, and such other

provisions as the commissioner determines appropriate

for the control of such pollutants" (Environmental

Conservation Law § 17-0808 [3] [emphasis added];

compare 33 USC 1342 [p] [3] [B] [iii], the cognate

federal provision).

Additionally, the Legislature amended existing section

70-0117 of the Environmental Conservation Law to include a new

subdivision 7 to provide as follows:

"(a) Under the [SPDES] program . . ., the

department may issue a general permit, upon application

or on its own initiative, to cover a category of point

sources of one or more discharges within a stated

geographical area which (i) involve the same or

substantially similar types of operations, (ii)

discharge the same types of pollutants, (iii) require

the same effluent limitations or operating conditions,

(iv) require the same or similar monitoring, and (v)

which will result in minimal cumulative impacts.

"(b) General permits can only be issued for the

following categories of discharges, if, by virtue of

their nature and location, the department determines

such discharges are more appropriately controlled under

a general permit than under individual permits:

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"(i) separate storm sewers or stormwater

conveyance systems; . . .

"(c) Any general permit under this subdivision

shall set forth the conditions which shall apply to any

discharge authorized by such general permit.

"(d) The department may require any person

authorized by a general permit to apply for and obtain

an individual permit and the department shall adopt

rules and regulations specifying circumstances under

which an individual permit may be required.

"(e) General permits shall be governed by the

procedures set forth in this article [70] for the

issuance of major permits" (former Environmental

Conservation Law § 70-0117 [7], renumbered

Environmental Conservation Law § 70-0117 [6] [L 1994,

ch 170, § 202]).

The bill that became chapter 360 was drafted by and

introduced at the request of DEC, which sought general permitting

authority in order to avoid "issuance of thousands of individual

SPDES permits covering discharges of heat, stormwater and non-

industrial waste as well as . . . discharges of a minor nature[,

which] do not require the individual attention the statute

currently demands" (Bill Jacket, L 1988, ch 360 at 9 [emphasis

added]). Similarly, DEC explained that general permitting would

"reduce the amount of paperwork and resources dedicated

to permitted discharges which do not warrant technical

case review. Past regulation of such discharges has

created substantial administrative burdens without

corresponding increases in environmental protection.

Staff time spent on processing these types of permits

detracts from time that could be spent on major and

toxic discharges" (id. [emphases added]).

The bill's Senate and Assembly sponsors repeated these rationales

(id. at 18, 23, 29).

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EPA's Final Rule

EPA promulgated its final rule regulating stormwater

discharges from small municipalities' separate stormwater sewer

systems on December 8, 1999, effective February 7, 2000 (64 Fed

Reg 68722 [Dec 8, 1999] codified at 40 CFR pts 9, 122, 123 and

124]). These so-called Phase II regulations expanded the

existing NPDES Phase I stormwater program.3 The record to

support the regulation of small MS4s included the studies and

reports to Congress mandated by the Water Quality Act, as well as

EPA's evaluation of comments and considerable additional research

and studies. Based on this record, EPA determined that surface

water contamination from wet-weather discharges from these

systems was best controlled by means of measures designed to

reduce the quantity of pollutants introduced into stormwater and

the volume of stormwater flow rather than end-of-pipe numeric

limits (id. at 68753). Accordingly, the regulations required

small MS4s to develop and implement a SWMP that identified best

management practices to attain "minimum control measures" in six

key areas: public education and outreach; public involvement;

3

As the first step in carrying out the requirements of the

Water Quality Act, the Phase I program covered NPDES permitting

of stormwater discharges from MS4s serving a population of 100,00

or more and stormwater discharges associated with industrial

activity, including construction activities involving five or

more acres (33 USC § 1342 [p] [2], [4]; see also 55 Fed Reg 47990

[Nov 16, 1990]). In addition to small MS4s, the Phase II

regulations also addressed construction sites that disturb one to

five acres and additional sources that might be designated on a

case-by-case basis (64 Fed Reg at 68722).

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illicit discharge detection and elimination; construction site

runoff control; stormwater management in new development and

redevelopment; and pollution prevention and good housekeeping of

municipal operations (id. at 68736; 68754-68762).

EPA determined that if small MS4s carried out best

management practices in accordance with their SWMPs, they would

comply with the statutory standard to reduce pollutants to the

maximum extent practicable (id. at 68754; see also id. at 68843

[40 CFR 122.34 (a)]); and "[a]bsent evidence to the contrary, . .

. presume[d] that a small MS4 program that implements the six

minimum measures . . . does not require more stringent

limitations to meet water quality standards" (64 Fed Reg at

68753). EPA recommended that small MS4s include the public in

developing, implementing and reviewing the SWMP (id. at 68844 [40

CFR 122.34 (b) (2) (ii)]);4 and required that all records,

including a description of the SWMP, must be made available to

the public for review and copying at reasonable times during

regular business hours (64 Fed Reg at 68846 [40 CFR 122.34 (g)

4

The 2010 General Permit requires small MS4s to provide the

public with the opportunity to participate in the development,

implementation, review and revision of the SWMP. In this context,

"development" means the "period after initial authorization under

[the 2010 General Permit] when [the small MS4] creates, designs

or develops activities, BMPs, tasks or other measures to include

in [its] SWMP"; and "implementation" means the "period after

development of [the] SWMP, where the [small MS4] puts into effect

the practices, tasks and other activities in [its] SWMP."

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(2)]).5

EPA interpreted the Water Quality Act as authorizing it

to develop a stormwater program for small municipalities either

as part of the NPDES permit program or as a stand-alone non-NPDES

program, such as a self-implementing rule. EPA settled on the

use of NPDES permits instead of a rule for several reasons,

including a desire to maintain consistency with its Phase I

program for stormwater control; to capitalize upon the existing

government infrastructure for administration of the NPDES program

and the regulated community's understanding of how the NPDES

program works; and to provide flexibility in order to facilitate

watershed planning and sensitivity to local conditions (id. at

68739). EPA did note, however, that "[k]ey provisions" of the

rule "promot[ed] a streamlined approach to permit issuance by,

for example, using general permits" (id. at 68740; see also id.

at 68762 [although the permit to authorize a small MS4's

discharges might take the form of either an individual NPDES

permit issued to one or more facilities as co-permittees or a

general NPDES permit that applied to a group of small MS4s, EPA

"expect[ed]" that most discharges would be authorized or

"covered" under general permits for reasons of administrative

efficiency and reduced paperwork burdens]). In fact, EPA

recommended using general permits, rather than individual

5

The 2010 General Permit directs small MS4s to ensure that

copies of SWMPs and Annual Reports are available for public

inspection.

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permits, for all stormwater sources newly regulated under its

rule (id. at 68737).

A small MS4 that seeks coverage under a general NPDES

permit for its stormwater discharges is required to submit an NOI

to the permitting authority. The NOI must specify the best

management practices to be implemented for each of the six

required minimum control measures along with measurable goals for

the development and implementation of each best management

practice (id. at 68762-68764). Although "[s]everal commenters

suggested that EPA require permitting authorities to approve or

disapprove the submitted BMPs and measurable goals[,] EPA

disagree[d] that formal approval or disapproval by the permitting

authority [was] needed" (id. at 68764).6

EPA afforded small MS4s up to five years to fully

develop and implement their SWMPs,7 with annual reports required

to document progress (id. at 68770, 68846 [40 CFR 122.34 (g)

6

EPA allows a small MS4 that submits a complete and timely

NOI to discharge upon receipt of the NOI by the state permitting

authority, after a waiting period specified in the general

permit, on a date specified in the general permit or upon

receiving notice of inclusion from the state permitting authority

(see 40 CFR 122.28 [b] [2] [iv]). By contrast, the 2010 General

Permit requires DEC to publish a notice in the Environmental

Notice Bulletin when an NOI is received from a small MS4. These

notices provide a web link to the actual NOI, and inform the

public of the physical location of the NOI and SWMP, which are

available for public inspection. The NOI is subject to a 28-day

public comment period prior to DEC's authorization of the small

MS4's discharges.

7

DEC reduced the time period from five to three years for

the New York program.

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(3)]). The Agency stated that "[t]he permitting authority will

use the reports in evaluating compliance with permit conditions

and, where necessary, will modify the permit conditions to

address changed conditions" (64 Fed Reg at 68770).

The 2010 General Permit

The 2010 General Permit is a 97-page document, with

appendices, which requires small MS4s to develop, document and

implement a SWMP that includes 44 mandatory best management

practices grouped into the six program components, or minimum

control measures. Many of the mandatory best management

practices afford small MS4s little or no choice about what they

must do to comply with the 2010 General Permit; others afford

more freedom in implementation. As an example of the latter,

under the minimum control measure addressing public outreach,

small MS4s must develop and implement an ongoing public education

and outreach program, but enjoy flexibility to decide how best to

accomplish this in light of local conditions or considerations

(e.g., a media campaign, presentations to community groups,

outreach to commercial entities, a webpage, printed materials,

posters and/or 13 other suggested ways or management practices to

raise the public's awareness and engage its participation in

reducing pollution of stormwater runoff).

At the other end of the spectrum, the 2010 General

Permit imposes highly prescriptive requirements for small MS4s to

develop, implement and enforce a program to detect and eliminate

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non-stormwater (i.e., illicit) discharges. The small MS4s must

develop and maintain maps showing the location of all outfalls,

verify each of them in the field and conduct an outfall inventory

in accordance with detailed guidance published on EPA's website.

Further, each small MS4's program must include procedures to

identify areas that are of greatest concern and describe those

areas, available equipment, staff and funding; identify and

locate illicit discharges; eliminate illicit discharges; and

document the steps the small MS4 has taken to implement its

program.

The NOI and Annual Reports Provided for

by the 2010 General Permit

The NOI is currently a 19-page document that sets out

the six minimum control measures, listing the mandatory and

optional best management practices for each. The small MS4 must

commit to each mandated and any optional best management practice

initially identified in the SWMP;8 describe initially identified

measurable goals for each of the required or chosen best

management practices, with start and end dates, including work to

be done by partners. And finally, either a principal executive

or ranking elected official must sign the NOI, certifying that

the information submitted is, to the best of the signer's

8

Small MS4s in specified watershed improvement strategy

areas must identify the additional best management practices that

they will implement in order to reach specified pollutant load

reductions.

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knowledge and belief, true, accurate and complete, and

acknowledging awareness of the significant penalties for

submitting false information, including the possibility of fines

and imprisonment for knowing violations. As noted previously

(see n 6, supra), the NOI is made available to the public for

comment for a 28-day period. Small MS4s that submit an NOI are

authorized to discharge stormwater upon written notification from

DEC that a complete NOI has been received. DEC, however, may

also choose to require the small MS4 to submit an application for

an individual SPDES permit or an alternative SPDES general

permit. DEC annually audits up to 10% of all municipal storm

sewers, makes site inspections, reviews citizen complaints and,

where necessary, takes enforcement action.

The vast majority of New York's 500 plus small MS4s

achieved initial authorization to discharge stormwater prior to

the effective date of the 2010 General Permit; they were able to

maintain coverage under the 2010 General Permit by submitting

their 2009 Annual Reports (see n 1 and 2, supra). The 2010

General Permit directs small MS4s to make Annual Reports and

SWMPs available for public review; provides for notice of receipt

of 2009 Annual Reports to be published in the Environmental

Notice Bulletin;9 and requires small MS4s to present draft Annual

Reports to the public and to include its responses to any public

9

The 2010 General Permit states that "[f]or public

participation purposes, the [2009] Annual Report will be

considered equivalent to an NOI."

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comments (including, as appropriate, any modifications of the

SWMP) when they submit these reports to DEC. The Annual Report

summarizes the activities performed by the small MS4 during the

reporting period and those planned for the next year, and

includes, among other things, an assessment of compliance with

permit conditions; the appropriateness of the identified best

management practices; and progress toward meeting the measurable

goals for each minimum control measure and achieving the

statutory goal of reducing the discharge of pollutants to the

maximum extent practicable. DEC's review of Annual Reports

allows the Department to keep tabs on small MS4s and to require

any necessary refinement of best management practices. DEC

refers to these contemplated successive rounds of reviewing and,

as necessary, finetuning and refocusing best management practices

as the "iterative process" that is the hallmark of the flexible

"maximum extent practicable" standard, which Congress

deliberately chose as best suited for regulating small

municipalities' stormwater discharges.

II.

Discussion

The Clean Water Act

There is no doubt that the 2010 General Permit complies

with EPA's 1999 regulations, which allow permitting authorities

to authorize small MS4s to discharge stormwater under a general

NPDES permit upon receipt of an NOI –- i.e., without any

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regulatory review, public notice and comment or opportunity for a

public hearing. There is likewise no doubt that the 2010 General

Permit affords more generous regulatory review and public

participation than EPA's 1999 regulations require. But NRDC

contends, and the dissent agrees, that the federal courts have

held that the regulatory review and public participation features

of EPA's 1999 regulations, on which the 2010 General Permit is

necessarily modeled, constitute an "impermissible self-regulatory

system" in contravention of the Clean Water Act, and that New

York courts are bound to follow suit with respect to the New York

program. Stated slightly differently, NRDC and the dissent

assert that federal court decisions make clear that the Clean

Water Act does not allow DEC to authorize a small MS4's

stormwater discharges under the 2010 General Permit without first

engaging in an undefined more detailed review of the NOI (and,

apparently, the SWMP) and providing the public an opportunity to

request a hearing.

After EPA promulgated its 1999 regulations, various

environmental, municipal and industry groups brought petitions

for review, which were consolidated in the United States Court of

Appeals for the Ninth Circuit (see Environmental Defense Ctr.,

Inc. v EPA, 344 F3d 832 [9th Cir 2003] [EDC]). The environmental

petitioners argued that, by allowing permitting authorities to

authorize small MS4s to discharge stormwater on the basis of

"unreviewed NOIs," the regulations created an "impermissible

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self-regulatory system," and additionally "fail[ed] to provide

for public participation as required by the Clean Water Act,

because the public receive[d] neither notice nor opportunity for

hearing regarding an NOI" (id. at 854, 856). A divided panel

agreed.

Applying Chevron analysis,10 the EDC majority first

determined that the Clean Water Act unambiguously expressed

Congress's intent that "EPA issue no permits to discharge from

municipal storm sewers unless those permits require[d] controls

to reduce the discharge of pollutants to the maximum extent

practicable" (id. at 854 [internal citations omitted]), and that

EPA's 1999 regulations did not fulfill this plain command. This

was the case, the majority reasoned, because absent a permitting

agency's "meaningful review" of the minimum control measures

selected by a small MS4,11 the municipal operator might

10

The United States Supreme Court held in the seminal case

of Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc.

(467 US 837 [1984]) that federal courts will accept a federal

agency's reasonable interpretation of the ambiguous statutory

language of statutes that the agency administers.

11

As pointed out earlier, EPA's 1999 regulations did not

require any review of NOIs. DEC takes the position that its

review of NOIs for completeness is "meaningful review";

specifically, DEC does not authorize a small MS4's stormwater

discharges until after examining the NOI to make sure that the

system operator has committed to carrying out a SWMP that

comprehends, at a minimum, 44 mandatory best management practices

(clearly identified in the NOI as "required"), and has

established measurable goals by which to assess how successfully

these best management practices, as implemented, control

stormwater discharges to the maximum extent practicable.

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"misunderstand[] or misrepresent[] its own stormwater situation

and propos[e] a set of minimum measures for itself that would

reduce discharges by far less than the maximum extent

practicable" (id. at 854-856). The EDC majority also concluded

that NOIs (unlike NRDC and the dissent, the court did not mention

SWMPs) are "functionally equivalent" to NPDES permit

applications, and therefore are subject to the same public

availability and public hearing requirements (id. at 857).

The dissenting judge considered the "central issues" in

the case to be whether the Clean Water Act allowed EPA to use a

general permit system to administer the NPDES program and whether

NOIs should properly be regarded as "permits." Citing Chevron,

he noted that "resolution of these issues require[d] a

complicated weighing of policies (e.g., administrative

streamlining vs. robust inquiry) that is precisely what agencies

are designed to do and courts are without the resources or

experience to do" (id. at 881 [Tallman, J., dissenting]).

In the dissenting judge's view, although the majority

correctly recognized that EPA was allowed to use a general permit

system, it

"ignore[d] the effects of the general permit. By

filing an NOI, a discharger obligates itself to comply

with the limitations and controls imposed by the

general permit under which it intends to operate. EPA

mandates that all permits (including general permits)

condition their issuance on satisfaction of pollution

limitations imposed by the Clean Water Act[;

t]herefore, the general permit imposes the obligations

with which the discharger must comply (including

applicable Clean Water Act standards), and EPA's

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decision not to review every NOI is not a failure to

insure compliance with the [statute]" (id. at 882).

As for the majority's objection that EPA's general

permit system did not allow for sufficient public participation,

the dissenting judge chided his colleagues for "fail[ing] to give

deference to EPA and impos[ing] the majority's own wishes

instead" (id.). He added that where "an agency promulgates rules

after a deliberative process, it is incumbent upon [the federal

courts] to respect the agency's decisions or else risk

trivializing the function of that agency"; and that "[i]n this

case, EPA made a permissible decision to create a general permit

program supported by NOIs" (id.).12

In Texas Indep. Producers & Royalty Owners Assn. v EPA

(410 F3d 964 [7th Cir 2005] [Tex. Indep. Producers]), the United

States Court of Appeals for the Seventh Circuit agreed with the

dissenting judge in EDC that NOIs are not subject to the Clean

Water Act's public participation requirements for NPDES permit

applications. As mentioned earlier (see n 3, supra), EPA's Phase

I stormwater regulations addressed construction activities

involving five or more acres, and its Phase II stormwater

regulations addressed construction sites that disturb one to five

acres (as well as small MS4s). EPA eventually promulgated a

12

The dissent comments that the Supreme Court "has chosen

not to take up EDC," citing Texas Cities Coalition on Stormwater

v EPA (541 US 1085 [2004])(dissenting op at 34-35). The Texas

Cities Coalition sought Supreme Court review of its challenge to

EPA's 1999 regulations, primarily on Tenth Amendment grounds.

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general permit for stormwater discharges from both large and

small construction sites in those jurisdictions where it had not

authorized the state or an Indian tribe to administer the NPDES

program. This general permit required operators to submit an NOI

to acquire coverage; a responsible corporate officer to certify

the basis for eligibility for coverage; creation, maintenance and

implementation of a site-specific Storm Water Pollution

Prevention Plan (SWPPP), also to be certified by a corporate

official; and implementation of best management practices

necessary to comply with water quality standards, assure weekly

site inspections and document those inspections, including

detailing weather conditions.

In its petition for review, NRDC attacked the general

permit's failure to make NOIs and SWPPPs available to the public

and afford the opportunity for a public hearing, citing 33 USC §§

1342 (j) and 1342 (a) (1).13 EPA responded that these provisions

did not apply to NOIs and SWPPPs because NOIs and SWPPPs were not

permits or permit applications. The Seventh Circuit concluded

that because the Clean Water Act spoke only of permits and permit

13

Section 1342 (j) of the Clean Water Act provides that "[a]

copy of each permit application and each permit issued under this

section shall be available to the public. Such permit

application or permit, or portion thereof, shall further be

available on request for the purpose of reproduction"; section

1342 (a) (1) authorizes the EPA "after opportunity for public

hearing, [to] issue a permit for the discharge of any pollutant,

or combination of pollutants" (see Environmental Conservation Law

§ 17-0805 [1] for the cognate provisions in state law).

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applications, not NOIs or SWPPPS, the statute was silent or

ambiguous for purposes of Chevron analysis. Accordingly, the

court was called upon to decide whether EPA had reasonably

construed the relevant provisions of the Clean Water Act.

In support of its interpretation, EPA "stressed" that

general NPDES permitting did not "make use of a permit

application"; rather, general permits were proposed through a

notice in the Federal Register to solicit public comment, and

"[i]t [was] at that time that the public [had] the opportunity to

request a public hearing" (id. at 978). Once EPA issued the

general permit as a final rule, a discharger intending to operate

under the general permit's authority was required to comply with

that permit's already established terms; therefore, "there [was]

no need for additional public comment or a notice period," and

potentially requiring a public hearing for individual NOIs and

SWPPPs risked "eviscerat[ing] the administrative efficiency

inherent in the general permitting concept, in effect making the

general permit scheme no different from the process for obtaining

individual permits[, which] would be inconsistent with Congress'

intent to allow for the use of general permits" (id. [internal

citations omitted]).

Calling these rationales "eminently reasonable," the

Seventh Circuit concluded that "EPA's interpretation of the terms

'permit application' and 'permit' as not including NOIs and

SWPPPs is a permissible construction" (id.). In so holding, the

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court acknowledged that it disagreed with the EDC majority and

agreed with the dissenting judge in that case, thus creating a

split between the circuits (id. at 978, n 13).14

In sum, then, the federal circuit courts are split on

the question of whether EPA has permissibly interpreted the Clean

Water Act to mean that an NOI is not a "permit application."15

And we obviously may not engage in Chevron analysis to review

14

The parties disagree about the relevance of a third

federal case, Waterkeeper Alliance, Inc. v EPA (399 F3d 486 [2d

Cir 2005] [Waterkeeper Alliance]), which the United States Court

of Appeals for the Second Circuit handed down after EDC and

before Tex. Indep. Producers. This decision invalidated portions

of EPA's 2003 regulations governing NPDES permitting for

concentrated animal feeding operations (CAFOs), which are

variously-sized but large-scale enterprises that raise animals

like cows and pigs in confined quarters. Waterkeeper Alliance,

however interpreted, does not eliminate the circuit split.

15

We recognize that at least one statement in EPA's 1999

regulations does not appear facially consistent with its position

in the EDC and Tex. Indep. Producers lawsuits. The EDC majority

remarked that "[t]he text of [EPA's] Rule itself acknowledges

that a Phase II NOI is a permit application that is, at least in

some regards, functionally equivalent to a detailed application

for an individualized permit" (EDC, 344 F3d at 853 [emphasis

added]). In support of this proposition, the EDC majority (and

the dissent; see dissenting op at 42, n 10) cite 40 CFR 122.34

(d) (1), which starts out by stating "[i]n your permit

application (either a notice of intent for coverage under a

general permit or an individual permit application)." Section

122.34 is written in a "readable regulation" format as an answer

to the question "As an operator of a regulated small MS4, what

will my NPDES storm water permit require?" It is the task of the

federal courts, not this Court, to figure out whether section

122.34 (d) (1) or anything else in EPA's 1999 regulations is

inconsistent with the Agency's litigation posture in EDC and Tex.

Indep. Producers and, if so, the significance of the

inconsistency.

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EPA's interpretation, which underlies the corresponding, although

not identical, parts of the 2010 General Permit to which NRDC

objects. The federal courts and EPA will have to sort this

out.16 In that regard, NRDC has recently filed a petition for a

writ of mandamus in the Ninth Circuit in the EDC case, asking

that court to order EPA to amend its 1999 regulations within six

months to provide individualized review of NOIs with notice and

opportunity for public hearings. This is all the more reason,

DEC argues, to reject "NRDC's attempt to litigate an underlying

dispute with EPA by ordering relief against DEC for complying

with EPA's regulations." We agree. Unless and until EPA revises

its 1999 regulations, DEC's SPDES general permitting program for

16

The dissent protests that our "'hands-off' approach would

leave this court with no authority to consider the legality of

state agency conduct, [which is] most certainly not the law, as

made plain by [our] administrative law jurisprudence" (dissenting

op at 42). The dissent then cites four cases, only one of which

-- Seittelman v Sabol (91 NY2d 618 [1998]) -- involves federal

law, and in Seittelman, the issue was whether we owed deference

to a State agency's interpretation of a federal statute. Here,

NRDC is asking us to decide that a federal agency -- EPA -- has

improperly interpreted the statute it is tasked with

administering. This is quite different from Seittelman. DEC

operates the SPDES program as EPA's NPDES delegee, and is bound

to follow EPA's interpretation of the Clean Water Act, here

expressed, as challenged, in EPA's 1999 regulations. Federal law

vests exclusive jurisdiction to review those regulations in the

federal circuit courts (see 33 USC § 1369; see also Amer. Frozen

Food Inst. v Train, 539 F2d 107, 124 [DC Cir 1976]). Under the

dissent's view and notwithstanding section 1369 of title 33, the

highest court in every state that administers the NPDES permit

program would be empowered to second-guess EPA's governing

regulations, creating an obvious impediment to implementation of

a coherent nationwide NPDES permitting scheme.

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small MS4s must comply with them (as it concededly does), and DEC

need not go beyond the specifications of those regulations unless

New York law requires it to do so.

The Environmental Conservation Law

A SPDES general permit covers multiple entities with

similar characteristics and minimal impacts (see Environmental

Conservation Law § 70-0117 [6] [a]). SPDES general permitting

allows DEC to avoid detailed review where it is not warranted and

thereby frees up finite regulatory resources for the individual

SPDES permitting of entities with greater impact on the

environment. These were the reasons that DEC gave the

Legislature when it sought SPDES general permitting authority in

1988, after Congress endorsed NPDES general permitting in the

Water Quality Act, and the explanations that the legislation's

sponsors gave when the Environmental Conservation Law was amended

to empower DEC to issue SPDES general permits.

The Legislature has exhibited a continuing willingness

to simplify and streamline the SPDES permitting process to reduce

or eliminate administrative complexities that burden DEC and the

regulated community alike in ways that do not benefit the

environment. For example, in 1994 the Legislature amended the

Environmental Conservation Law to expand general permitting and

require DEC to develop a priority ranking system for individual

SPDES permits in order to carry out an "Environmental Benefit

Permit Strategy" (EBPS) (see L 1994, ch 701). Broadly described,

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the EBPS prioritizes SPDES permits for full technical review and,

when necessary, modification, in order to insure that those point

source discharges presenting the greatest risk to the environment

receive the most expedient and detailed regulatory attention (see

generally TOGS 1.2.2 [Administrative Procedures and the

Environmental Benefit Permit Strategy for Individual SPDES

Permits," issued June 2003; revised Jan. 2012]; see also

Environmental Conservation Law § 17-0805 [1] [b] [making a SPDES

permit's priority ranking subject to an opportunity for a public

hearing]).

NRDC and the dissent blur the distinction between SPDES

general and individual permits by seeking to require DEC to

undertake an undefined more comprehensive review of NOIs (and,

apparently, to review SWMPs), and to provide an opportunity for a

public hearing on NOIs/SWMPs. Thus, NRDC would like DEC to treat

an NOI as though it were, or at least more like, an application

for an individual SPDES permit to be issued rather than what it

really is –- a request for coverage under a general SPDES permit

that has already been issued pursuant to the full panoply of

article 70 procedures (see Environmental Conservation Law § 70-

0117 [6] [e]; 6 NYCRR part 621).17 But the Environmental

17

In fact, the public enjoyed opportunities to participate

in the development of the 2010 General Permit which exceed

article 70's requirements. In the Fact Sheet issued with the

2010 General Permit, DEC explained that, in response to

"significant public interest" in the 2008 General Permit, it

limited that Permit's term to two years and embarked on an 18-

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Conservation Law does not obligate DEC to conduct SPDES general

permitting for small MS4s in accordance with NRDC's and the

dissent's policy preferences. SPDES general and individual

permits represent alternative ways for small MS4s to obtain

authorization for their stormwater discharges. To the extent the

courts force DEC to apply the same or similar procedures for both

alternatives, the resource-conserving benefits sought by the

Legislature when it enacted the 1988 legislation are compromised,

if not altogether lost.

Here, DEC has determined that examining NOIs for

completeness constitutes a sufficient level of technical

regulatory review to qualify a small MS4 for initial coverage

under the 2010 General Permit; and that the 2010 General Permit's

public participation requirements for NOIs (i.e., notices in the

Environmental Notice Bulletin to let the public know when a small

MS4's NOI has been submitted to DEC and where the NOI and SWMP

are physically located and may be inspected; making the NOI,

month post-issuance review process. All commenters on the 2008

General Permit were invited to participate, and DEC conducted

nine monthly topic meetings to address Green Infrastructure,

Intermunicipal Cooperation, Stormwater Retrofits, Public

Participation, Numeric Effluent Limits, MS4 Funding, Steep

Slopes, Riparian Buffers, Total Maximum Daily Loads and Impaired

Waters. Following these meetings, working drafts of a revised

general permit and revised chapters of DEC's Stormwater

Management Design Manual were reviewed with the participants.

Meetings were held to discuss proposed changes to the Design

Manual and the general permit; participants were invited to

submit comments on the working drafts. DEC incorporated

beneficial provisions identified during this 18-month review in

the 2010 General Permit.

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which DEC posts on its website, subject to a pre-authorization

28-day public comment period) are sufficient. These are

reasonable judgments that DEC possesses the discretion and

expertise to make in furtherance of its responsibilities under

the Environmental Conservation Law to regulate stormwater

discharges from small MS4s (see Matter of Howard v Wyman, 28 NY2d

434, 438 [1971] ["It is well settled that the construction given

statutes and regulations by the agency responsible for their

administration, if not irrational or unreasonable, should be

upheld"]; Matter of Davis v Mills, 98 NY2d 120, 125 [2002]

["(T)his Court treads gently in second-guessing the experience

and expertise of state agencies charged with administering

statutes and regulations"]).

We have reviewed NRDC's other challenges to the

lawfulness of the 2010 General Permit and consider them likewise

to be without merit. Accordingly, the order of the Appellate

Division, insofar as appealed from, should be affirmed, with

costs.

- 30 -

Matter of Natural Resources Defense Council, Inc., et al. v New

York State Department of Environmental Conservation

No. 48

RIVERA, J.(dissenting in part):

Petitioners are nine organizations or corporations,

including lead petitioner, the not-for-profit Natural Resources

Defense Council, Inc., whose several members use and enjoy New

York State water bodies. Petitioners challenge New York's

statewide general permit which allows storm water pollutant

discharges from small Municipal Storm Sewer Systems. I concur

with the majority to the extent it affirms dismissal of

petitioners' claims as related to the "no net increase" provision

and monitoring. However, because I conclude that the State's

general permit as currently implemented fails to comply in

several respects with federal and state statutory and regulatory

mandates, I dissent.

I.

A. Water Pollution Control and the Clean Water Act

Long-standing concerns over contamination of New York's

and the nation's waters have led to over a century of

governmental controls and prohibitions on water pollution. As

far back as 1903, New York State prohibited sewage and waste

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discharge into public waters (see L. 1903, ch. 468). There was

also early federal concern with contamination of New York's

water, as reflected by Congressional passage of laws in 1886 and

1888 prohibiting discharges of certain pollutants and refuse into

New York Harbor (see L. 1886, ch. 929, § 3).

The Rivers and Harbors Appropriation Act of 1899 was

the first statute to consolidate these and other prior federal

prevention efforts, in order to establish nationwide water

pollution controls. The Act prohibited discharge of "any refuse

matter of any kind or description whatsoever," into any navigable

water of the United States without approval or a permit form the

United States Army Corps of Engineers (see William L. Andreen,

The Evolution of Water Pollution Control in the United

States-State, Local, and Federal Efforts, 1789-1972: Part II, 22

Stan Envtl LJ 215, 220 [2003]; Section of Natural Resources,

Energy, and Environmental Law, American Bar Association, The

Clean Water Act Handbook, at 1 [3d Edition] [hereinafter "Clean

Water Act Handbook"]).

Water pollution, however, remained unabated and

continued to present serious public health issues (see Andreen at

222; 9 N.Y.Prac., Environmental Law and Regulation in New York §

6:2 [2d ed.]). Congress eventually passed the Federal Water

Pollution Control Act in 1948 (FWPCA) to address stream pollution

which, as a result of World War II, had intensified due to

"increased industrial activity and dramatically lower

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expenditures on wastewater treatment" (Andreen at 235). Under

the FWPCA, the states bore primary responsibility for water

pollution within their jurisdictions, and federal enforcement was

limited (see Andreen at 238; see also 80 Cong. Ch. 758, June 30,

1948, 62 Stat. 1155). Over time, Congress amended the FWPCA to

provide financial assistance to municipalities in the form of

grants to construct sewage treatment plants and to shore up

federal enforcement (see Andreen at 240; 62 Stat. 1158).

As national concern increased over environmental

degradation and the adverse impacts of water pollution on society

and the economy, Congress established the Federal Water Pollution

Control Administration (see Water Quality Act of 1965, Pub. L.

No. 89-234, 79 Stat. 903), and the Environmental Protection

Agency (EPA) (see 42 USC § 4321 [Reorganization Plan No. 3 of

1970 establishing the EPA]). It also enacted the Water Quality

Act of 1965 and the Water Quality Improvement Act of 1970. This

administrative and regulatory framework was intended to ensure

the adoption and enforcement of appropriate water quality

standards and pollution controls.

After these efforts failed to protect the nation's

waters from dangerous levels of contamination, or to halt the

continued decline of water quality, Congress passed a

comprehensive revision and recodification of the FWPCA in 1972

(see Pub. L. No. 92-500, October 18, 1972 86 Stat. 816 [codified

as amended at 33 USC §§ 1251-1376 (2000)]). These amendments

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form the basis for what is best known as the Clean Water Act.

B. The Clean Water Act and the National Pollutant

Discharge Elimination System

The Clean Water Act (CWA) heralded the modern era of

federal water pollution control, with the stated objective to

"restore and maintain the chemical, physical, and biological

integrity of the Nation's waters" and the goal of eliminating

water pollution (see 33 USC § 1251 [a]). It provided for more

robust federal enforcement of pollution controls and the

development and implementation of waste treatment programs (see

Andreen at 239-24). It also declared unlawful "the discharge of

any pollutant by any person," to "navigable waters" from a "point

source" (see 33 USC § 1311 [a]) unless authorized by federal

permit, in accordance with the newly established national

pollutant discharge elimination system (NPDES) (see 33 USC § 1342

[a]).1

This federal permit scheme, central to the CWA and

administered by the EPA, subjects permit holders to pollutant

discharge limitations as well as mandatory monitoring and

1

The CWA defines point sources as "any discernible, confined

and discrete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure,

container, rolling stock, concentrated animal feeding operation,

or vessel or other floating craft, from which pollutants are or

may be discharged" (33 USC § 1362 [14]; see also 40 CFR 122.2).

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reporting requirements (see 33 USC § 1311 [b] [1] [A]; 33 USC §

1342 [b] [1] [A] [requiring SPDES permits to comply with § 1311];

see also Andreen at 261; Jeffrey M. Gaba, Generally Illegal:

Npdes General Permits Under the Clean Water Act, 31 Harv Envtl L

Rev 409, 410 [2007]). While the NPDES permit "authoriz[es] some

water pollution, [it] place[s] important restrictions on the

quality and character of that licit pollution" (Waterkeeper

Alliance, Inc. v U.S. E.P.A., 399 F3d 486, 491 [2d Cir 2005]).

The CWA imposes effluent limitations, which are

"restriction[s]... on [the] quantities, rates, and concentrations

of chemical, physical, biological, and other constituents which

are discharged from point sources into navigable waters" (id.,

citing South Florida Water Mgt. Dist. v Miccosukee Tribe of

Indians, 541 US 95, 100 [2004]). The CWA defines effluent

limitations as "any restriction established by a State or the

Administrator on quantities, rates, and concentrations of

chemical, physical, biological, and other constituents which are

discharged from point sources into navigable waters, the waters

of the contiguous zone, or the ocean, including schedules of

compliance" (33 USC § 1362 [11]). Certain effluent limitations

are technology based, meaning they are "established in accordance

with various technological standards that the [CWA] statutorily

provides and that . . . vary depending upon the type of pollutant

involved, the type of discharge involved, and whether the point

source in question is new or already existing" (Waterkeeper, 399

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F3d at 491). The CWA also provides for more stringent water

quality-based effluent limitations when necessary to ensure state

water quality standards (see 33 USC § 1311 [b] [C]). The

technology-based and water quality-based limitations are

generally represented as numerical limits on specific pollutant

discharges (see Waterkeeper, 399 F3d at 491).

A permit is issued "upon condition that such

[pollutant] discharge will meet . . . all applicable requirements

including the effluent limitations statutorily required" by the

CWA (id. at 498 [brackets omitted]). Thus, under the CWA's NPDES

permit structure, "a discharger's performance is now measured

against strict technology-based effluent limitations specified

levels of treatment to which it must conform, rather than against

limitations derived from water quality standards to which it and

other polluters must collectively conform" (Environmental

Protection Agency v California ex rel. State Water Resources

Control Bd., 426 US 200, 204-05 [1976] [hereinafter "EPA"). As

described by the United States Supreme Court

"[a]n NPDES permit serves to transform

generally applicable effluent limitations and

other standards including those based on

water quality into the obligations (including

a timetable for compliance) of the individual

discharger, and the Amendments provide for

direct administrative and judicial

enforcement of permits . . . In short, the

permit defines, and facilitates compliance

with, and enforcement of a preponderance of a

discharger's obligations under the [Clean

Water Act] Amendments"

(id. at 205 [internal citations omitted]).

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The CWA itself "imposes only limited procedural

obligations on the issuance of NPDES permits" (Gaba at 417). The

process for obtaining a permit is specifically set forth in EPA

regulations (see 40 CFR 122.21, et seq.). As a general matter,

an applicant must file an EPA permit application form (see 40 CFR

122.21 [a] [2]). The application must be submitted at least 180

days before the applicant intends to commence discharging (see 40

CFR 122.21 [c] [1]), and no permit will issue if an application

is deemed incomplete by the EPA (see 40 CFR 122.21 [e] [1]).

The CWA anticipates and requires certain opportunities

for public participation. As prominently set forth in the CWA

Declaration of Goals and Policy, "[p]ublic participation in the

development, revision, and enforcement of any regulation,

standard, effluent limitation, plan, or program established by

the [EPA] or any State . . . shall be provided for, encouraged,

and assisted by the [EPA] and the States" (33 USC § 1251 [e]).

The EPA may issue a NPDES permit only "after opportunity for

public hearing" (33 USC § 1342 [a] [1]), and "a copy of each

permit application and permit issued . . . shall be available to

the public" (33 USC § 1342 [j]). In addition, the EPA

regulations provide for public participation in the issuance of

NPDES permits, including requiring notice and opportunity for

comment on the denial of permit applications or the issuance of

draft permits (see 40 CFR 124.10 [a] [i], [ii]), and the

opportunity for a public hearing at the request of interested

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parties (see 40 CFR 124.11). The Administrator of the EPA shall

hold a hearing where the Administrator "finds, on the basis of

requests, a significant degree of public interest in a draft

permit(s)" (40 CFR 124.12 [a] [1]), or "at [the Administrator's]

discretion, whenever, for instance, such a hearing might clarify

one or more issues involved in the permit decision" (40 CFR

124.12 [a] [2]).

Maximization of public involvement as a federally

recognized goal is illustrated not only by the CWA's public

participation requirement, but also by its statutory provisions

authorizing private civil suits (see 33 USC § 1365). Under the

CWA, a person may commence a civil suit against individual

polluters as well as federal and state government entities for

failure to act in accordance with the law (see 33 USC §§ 1365 (A)

(1),(A) (2). Private actors have actively litigated the proper

enforcement of the CWA and compliance with NPDES permits (see

e.g. Los Angeles County Flood Control Dist. v Natural Resources

Defense Council, Inc., 133 S Ct 710 [2013] [environmental

organizations brought action against California municipal

entities, alleging that they were discharging urban stormwater

runoff into navigable waters in violation of the CWA]; Decker v

Northwest Envtl. Defense Ctr., 133 S Ct 1326 [2013]

[environmental organization brought action against Oregon

officials and timber companies, alleging that they violated the

CWA by discharging stormwater from ditches alongside logging

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- 9 - No. 48

roads in state forest without NPDES permits]).

C. State Pollutant Discharge Elimination System

The CWA also allows for a federally-authorized, EPA-

approved state to issue permits "for discharges into navigable

waters within" the state's jurisdiction (33 USC § 1342 [b]).

Currently, a majority of states are EPA-approved to operate their

own state pollutant discharge elimination system (SPDES). The

laws of such state must "provide adequate authority to carry out

the [permit] program" (33 USC § 1342 [b]), and the permits issued

pursuant to this EPA authorization, must "apply, and insure

compliance with, any applicable [CWA effluent limitations and

standards]" (33 USC § 1342 [b] [1] [A]).

In 1975, the EPA authorized New York to issue permits

under the state's SPDES, established pursuant to Article 17 of

New York's Environmental Conservation Law. Thus, discharges or

pollutants from point sources into the waters of the state are

prohibited, unless authorized under New York's SPDES permit

program (see ECL 17-0803; see also 33 USC § 1311 [a]). In

accordance with the ECL, any discharges allowed by these permits

shall

"conform to and meet all applicable

requirements of the [CWA] ... and rules,

regulations, guidelines, criteria, standards

and limitations adopted pursuant thereto

relating to effluent limitations, water

quality related effluent limitations, new

source performance standards, toxic and

pretreatment effluent limitations, ocean

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discharge criteria, and monitoring, and to

participate in the [NPDES] created by the

[CWA]"

(ECL § 17-0801). In addition to applicable federal requirements,

such permits are also subject to regulations issued by DEC (see 6

NYCRR 750, et seq.).

In New York, in order to obtain a permit, an interested

party must file an application (see ECL § 17-0803; 6 NYCRR

750-1.4 [a]). The applicant must secure the permit prior to

actual discharge of any prohibited pollutant (ECL § 17-0803 ["it

shall be unlawful to discharge . . . without a SPDES permit"]; 6

NYCRR 750-1.4 [a] ["no person shall discharge . . . without a

SPDES permit"]). As required by law, DEC reviews and, where

appropriate, approves the permit and issues a draft permit

setting forth the effluent limitations and other conditions

applicable to the discharger (ECL § 17-0809 [1]; 6 NYRR 750-1.10

[a]).

Public participation under New York's SPDES permit

program is advanced through public notice requirements and an

opportunity for public hearing on the permit application (see ECL

§ 17-0805 [b]; see also 6 NYCRR 750-1.12 [a] [requiring notice]).

The DEC must provide notice of every draft SPDES permit,

describing its terms and conditions, and must allow for a minimum

30-day public comment period (ECL § 17-0805 [b]). During the

comment period, "[t]he department may, in its discretion, provide

an opportunity for the applicant or any interested agency, person

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or group of persons to request or petition for a public hearing"

(id.).

D. General Permits

As an alternative to the NPDES permit established by

the CWA, the EPA passed regulations allowing the issuance of

general permits "to cover one or more categories or subcategories

of discharges . . . within a geographical area" (40 CFR § 122.28

[a] [1]). A general permit "is a single NPDES permit that covers

a number of individual discharges that would otherwise require

individual NPDES permits" (Ohio Val. Envtl. Coalition v Horinko,

279 F Supp 2d 732, 758 [SDW Va 2003], citing 40 CFR 122.28; see

also Environmental Defense Ctr., Inc. v U.S. E.P.A., 344 F3d 832,

853 [9th Cir 2003] ["A general permit is a tool by which EPA

regulates a large number of similar dischargers"][Hereinafter

EDC]). Unlike the single-applicant NPDES permit process, under

the general permit scheme, the permitting authority may issue a

general permit "containing a common set of effluent limitations

and other permit conditions that will apply to a potentially

large number of point sources" (Gaba at 419). As such, it

provides for certain efficiencies and reduces the administrative

burdens associated with an individual permit process (see Natural

Resources Defense Council, Inc. v Costle, 568 F2d 1369, 1381 [DC

Cir 1977] ["Area-wide regulation is one well-established means of

coping with administrative exigency"]).

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With the exception of the CWA's authorization for

general permits allowing discharges of "dredged or fill material"

(see 33 USC § 1344 [e] [1]), the CWA contains no special

provisions for a category of "general permits," thus leaving the

procedures and substantive contours of a general permit scheme to

the EPA (see 40 CFR 122.28 [b]).2 Those EPA regulations allow

states to issue general permits through their SPDES programs, in

accordance with federal regulatory provisions (see 40 CFR 123.1

[c] ["The (EPA) Administrator will approve State programs which

conform to the applicable requirements of this part"]). All

general permits, whether issued by the EPA or by an authorized

state, must comply with the CWA and federal regulations (see 40

CFR § 123.25 [a]).

Since under a general permit program the permit is not

issued for individual dischargers, but rather sets forth

requirements that all applicants must satisfy in order to

lawfully discharge pollutants, public participation under this

scheme is provided through a notice and comment period directed

at soliciting public comments on the contents of the general

2

Hence, explaining 1991 legislation wherein Congress

mandated that the EPA "issue final regulations with respect to

general permits for stormwater discharges associated with

industrial activity on or before February 1, 1992" (Pub. L. No.

102–240, December 18, 1991, 105 Stat 1914). In response, EPA

implemented a general permit system for stormwater discharges

from industrial activities (see National Pollutant Discharge

Elimination System General Permits and Reporting Requirements for

Storm Water Discharges Associated With Industrial Activity, 56 FR

40948-01).

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permit (see 40 CFR 124.10 [requiring notice]; 40 CFR 124. 11

[allowing comment and requests for a hearing]). Once the general

permit is finalized and approved, applicants for whom the general

permit is designed may submit a Notice of Intent (NOI) to comply

with the permit and thus acquire coverage thereunder (see 40 CFR

122.28 [b] [2] [i]).

New York State implements a general permit program (see

6 NYCRR 750-1.21 [a]). As defined in the ECL, a general permit

"cover[s] a category of point sources of one or more discharges

within a stated geographical area which (i) involve the same or

substantially similar types of operations, (ii) discharge the

same types of pollutants, (iii) requires the same effluent

limitations or operating conditions, (iv) require the same or

similar monitoring, and (v) which will result in minimal adverse

cumulative impacts" (ECL 70-0117 [6][A]; see also 6 NYCRR

750-1.21).

II.

A. Stormwater Pollutant Discharges

Congress amended the CWA in 1987 to provide for

regulation of municipal and industrial stormwater discharges

under the NPDES program (see 33 USC § 1342 [p]). Stormwater,

from rain and snow, is a highly significant source of water

pollution, because it flows across all types of surfaces and

washes various contaminants into municipal storm sewer systems

which then drain into local water bodies. According to the EPA,

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"[s]torm water runoff continues to harm the

nation's waters. Runoff from lands modified

by human activities can harm surface water

resources in several ways[,] including by

changing natural hydrologic patterns and by

elevating pollutant concentrations and

loadings. Storm water runoff may contain or

mobilize high levels of contaminants, such as

sediment, suspended solids, nutrients, heavy

metals, pathogens, toxins, oxygen-demanding

substances, and floatables"

(40 CFR 122.30 [c]). Regulation of stormwater discharges are

particularly challenging because of the ever present rain and

snow that lead to stormwater runoff, and the fact that

third-parties may be the source of illicit discharges to storm

sewer systems (see 64 Fed Reg 68, 789 ["EPA acknowledges the need

to devise a regulatory program that is both flexible enough to

accommodate the episodic nature, variability and volume of wet

weather discharges and prescriptive enough to ensure protection

of the water resource"]).

As provided under the CWA, the NPDES permit for

municipal storm sewer discharges "shall require controls to

reduce the discharge of pollutants to the maximum extent

practicable, including management practices, control techniques

and system, design and engineering methods, and such other

provisions the [EPA] Administrator or the State determines

appropriate for the control of such pollutants" (see 33 USC §

1342 [p] [3] [B] [iii]). The CWA does not define the maximum

extent practicable standard. However, it appears to provide

broad authority to agencies to control stormwater pollution.

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In 1990 and 1999, the EPA adopted rules regulating

Municipal Separate Storm Sewer Systems ("MS4s"), which are

systems designed to carry stormwater (see 40 CFR 122.26 [b] [8]).

The problems associated with regulating small MS4s are complex

because of these municipalities' limited resources, the sheer

numbers and diversity of the localities impacted by the general

permit system, and the opportunity for an MS4 drainage system to

cross geographic boundary lines, thus implicating multiple

government entities.

The federal regulations authorize state agencies to

issue general permits for such discharges (see 40 CFR 122.26 [a]

[5], 122.28 [a] [2] [i]). According to the EPA regulations, the

state general permit must require that the MS4 "develop,

implement and enforce a storm water management program designed

to reduce the discharge of pollutants from [the] MS4 to the

maximum extent practicable (MEP), to protect water quality, and

to satisfy the appropriate water quality requirements of the

[CWA]" (see 40 CFR 122.34 [a]). Further, the MS4's stormwater

management program (SWMP) "must include the minimum control

measures" set forth in the EPA regulations (id.). The EPA has

also concluded that with respect to MS4s

"narrative effluent limitations requiring

implementation of best management practices

(BMPs) are generally the most appropriate

form of effluent limitations when designed to

satisfy technology requirements (including

reductions of pollutants to the maximum

extent practicable) and to protect water

quality. Implementation of best management

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practices consistent with the provisions of

the storm water management program required

pursuant to this section and the provisions

of the permit required pursuant to § 122.33

constitutes compliance with the standard of

reducing pollutants to the 'maximum extent

practicable'"

(40 CFR 122.34 [a]).

B. New York State's MS4 SPDES Stormwater Discharges

General Permit

In 2003, DEC issued a General Permit For Stormwater

Discharges for MS4s ("General Permit"), which applies to small

municipalities as defined in the federal regulations (see 40 CFR

122.26 [16]). The General Permit was renewed for two years in

2008, and renewed again for five years in 2010.3 This single

General Permit currently covers 559 municipal separate storm

sewer systems, statewide.

The General Permit authorizes stormwater discharges by

small MS4 operators covered by the permit. Coverage is effective

once the MS4 submits, and the State accepts as complete, an NOI

(see NYS DEC SPDES General Permit, Permit No. GP-0-10-002, at 2,

[hereinafter "General Permit"] ["Authorization under this SPDES

General Permit is effective upon written notification from the

[DEC] of the receipt of a complete NOI"]). The New York NOI is a

form document filled out by an MS4. It contains the MS4's

3

In anticipation of the General Permit's expiration on

April 30, 2010, DEC sent a public notice of an interim draft

renewal, effective for two years.

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affirmances that it will comply with the general permit

requirements, and that it has developed an initial SWMP to be

implemented in accordance with the terms of the General Permit.

Under the General Permit scheme, an MS4

"must develop (for newly authorized MS4s,

implement), and enforce a SWMP designed to

reduce the discharge of pollutants from small

MS4s to the maximum extent practicable

("MEP") in order to protect water quality and

to satisfy the appropriate water quality

requirements of the ECL and the CWA. The

objective of the permit is for the MS4s to

assure achievement of the applicable water

quality standards"

(General Permit, "Part IV. Stormwater Management Program (SWMP),"

Subsection A, "SWMP Background," at 14). The General Permit

requires the SWMP contain the six mandatory minimum control

measures set forth in the General Permit, and which mirror those

contained in the EPA regulations. These control measures are

titled: (1) public education and outreach on stormwater; (2)

public participation in the development, implementation and

review of the MS4's SWMP; (3) development of a program for

detecting and eliminating "illicit discharges"; (4) development

of a program to control construction site stormwater runoff; (5)

post-construction stormwater management; and (6) pollution

prevention for municipal operations (General Permit, "Part VIII.

Minimum Control Measures - Traditional Non-land Use and Non-

traditional MS4s," at 49-67; see also CFR §§ 122.34 [b] [1]-[6]).

Also, DEC has identified for each minimum control,

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certain mandatory "best management practices," to be utilized by

the MS4 "to prevent or reduce the pollution of waters of the

state" (General Permit, "Part X. Acronyms and Definitions," at

88). The MS4's SWMP must specifically set forth "measurable

goals" for each management practice (see id. at 95). An MS4

documents the developed, planned, and implemented SWMP elements

in a SWMP Plan (Plan),4 which "describe[s] how pollutants in

stormwater runoff will be controlled" (id. at 96).

In addition to the minimum controls and management

practices identified by the DEC, an MS4 "must comply with all

applicable technology-based effluent standards or limitations

promulgated by EPA pursuant to" the CWA (General Permit, "Part

VI. Standard Permits and Conditions," Subsection E. "Technology

Standards," at 22). Further, "[i]f an effluent standard or

limitation more stringent than any effluent limitation in the

SPDES general permit or controlling a pollutant not limited in

the permit is promulgated or approved after the permit is issued,

the SWMP plan shall be promptly modified to include that effluent

standard or limitation" (id.)

The ECL further requires that SPDES permits "insure

compliance with water quality standards adopted pursuant to state

4

The Plan may be created individually or with a group of

covered municipalities, and is a separate document, not to be

submitted with the NOI (see General Permit, "Part X. Acronyms and

Definitions," at 96).

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law" (ECL § 17-0811 [5]). The EPA regulations also prohibit

issuance of SPDES permits that do not "ensure compliance with

applicable water quality requirements of all affected States"

(see 40 CFR §§ 122.4 [d], 123.25 [a] [1], 122.44 [1], 123.25 [a]

[15]).

The CWA requires a state to establish, as effluent

limitations, water quality standards for the state's water bodies

by designating uses for every waterway and the amount of

permissible pollutants that may be present without impairing

those designated uses (see 33 USC § 1313 [c] [2] [A]). Where

current technology-based pollution controls are ineffective to

attain or retain water quality standards for a water body, then

that body is considered "impaired" (see 33 USC § 1311 [d]). The

CWA requires that the states priority rank these impaired waters,

"taking into account the severity of the pollution and the uses

to be made of such waters" (see 33 USC § 1311 [d] [1] [A]), and

calculate for each the total maximum daily load (TMDL) for the

relevant pollutants that the water body may receive from all

sources while still maintaining its water quality standards for

any particular pollutant (id.). The states must set reductions

for sources responsible for discharging pollutants in order for

the dischargers to meet the TMDL (see 33 USC § 1311 [d] [1] [C]).

As petitioners and the state recognize, it can take years to

determine a TMDL.

For those impaired waters in New York that do not have

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a TMDL, the state's General Permit has established interim

measures to address stormwater discharges pending designation of

the applicable TMDL. In particular, effective the date the MS4

attains permit coverage, the MS4 must ensure "no net increase" in

its discharge for certain pollutants, referred to as "pollutants

of concern" and which are identified in the General Permit (see

General Permit, "Part III. Special Conditions," Subsection B.,

"Impaired Waters," at 11, 101-108). The General Permit includes

pollutant load reductions for various water bodies in the state

(General Permit, "Part IX. Watershed Improvement Strategy

Requirements," Subsection C., "Pathogen Impaired Watershed MS4s,"

at 78). Further, the MS4 must take all necessary actions to

ensure future discharges do not cause or contribute to any

existing violation of water quality standards. In other words,

the General Permit requires the MS4 maintain the pollutant level

at status quo. With respect to those water bodies for which New

York has established a TMDL, the General Permit requires that the

MS4 comply with the discharge reduction as "defined by the TMDL

program" (General Permit, "Part III. Special Conditions,"

Subsection B "Impaired Waters," Subpart 2, "Watershed Improvement

Strategies," at 12).

The MS4's affirmative agreement to comply with the

General Permit requirements is represented in the NOI form, which

consists mainly of a simplified checklist of the minimum control

measures and management practices. In other words, the MS4

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selects from a "menu" of required and optional management

practices, and thus indicates which items the MS4 will employ to

meet a given minimum control measure.5 In order to select from

5

For example, with respect to the minimum control measure

"Illicit Discharge Detection and Elimination," the NOI form

requires the MS4 include in its SWMP the following management

practices:

• "Develop, implement and enforce a program to detect and

eliminate illicit discharges to the MS4"

• "Outfall and storm sewershed boundary mapping"

• "field verify outfalls"

• "outfall reconnaissance inventory"

• "prohibit illicit discharges"

• "Public, employees, business informed of hazards of

illicit discharge"

• "Adopt and enforce local law to prohibit illicit

discharges"

• "Adopt available mechanisms for to prohibit illicit

discharges"

(see NYS DEC Phase II SPDES General Permit for Storm Water

Discharge from MS4s Notice of Intent, at 8 [hereinafter "NOI"]).

In addition to the required practices, the NOI lists, by short

phrases, several optional management practices for the applicant

to consider adopting:

• "System mapping"

• "address exempt non-stormwater discharges as necessary"

• "Dye testing"

• "shoreline surveys"

• "system surveys"

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the list, the MS4 need only fill in the circle corresponding to

each management practice. The NOI form also provides for a

narrative description of "measurable goals," with start and end

dates "that will be used for each best management practice for

each of the minimum control measures" (NOI at 12-13).

III.

Petitioners filed this hybrid CPLR article 78

proceeding and declaratory judgment action challenging portions

of the General Permit as inconsistent with federal and state law.

Petitioners requested the court remand the General Permit to DEC,

with instructions that DEC modify the permit to conform with all

applicable legal requirements.

Our scope of review requires that we determine whether

DEC's issuance of the General Permit "was made in violation of

lawful procedure, was affected by an error of law or was

arbitrary and capricious or an abuse of discretion" to the extent

that the permit's requirements violate state and federal law

(CPLR 7803 [3]). Contrary to the majority, I conclude that DEC

is in violation of applicable mandatory statutory and regulatory

requirements on two grounds. First, DEC improperly grants

coverage under the General Permit to an MS4, without a pre-

coverage substantive review of the MS4's intended storm water

discharge control measures. Second, the state's General Permit

scheme fails to provide members of the public with an opportunity

(id. at 8).

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to request a hearing on the contents of a MS4's NOI and SWMP.

A. New York's Small MS4 General Permit

Petitioners allege that the General Permit relies on an

impermissible self-regulatory system, one that is dependent on

the MS4 implementing pollution controls unverified by DEC for

compliance with federal and state requirements. Specifically,

petitioners claim that under federal law, the General Permit must

contain effluent limitations that reduce pollutant discharges to

the "maximum extent practicable," and also ensure compliance with

water quality standards. Petitioners explain that New York's

General Permit scheme fails to ensure the adoption of legally

sufficient pollution controls because DEC authorizes an MS4 to

develop and implement a stormwater discharge management program,

without DEC first making an administrative determination that the

specific measures chosen by the MS4 will satisfy statutory

pollutant reduction standards.

DEC responds that by requiring an MS4 to adopt the six

minimum control measures and certain best management practices,

DEC has set the benchmark for compliance with the CWA's "maximum

extent practicable" standard. According to DEC, so long as the

MS4 agrees to the minimum control measures and management

practices, the MS4 has chosen a course of action that meets legal

requirements.

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The majority concludes that the General Permit is in

compliance with the CWA and ECL, and that the petitioners merely

seek for this Court to hold the SPDES General Permit to the same

standards applicable to a SPDES individual permit, in

contravention of the state legislature's intent (see majority op

at 27-29). Essentially, the majority adopts DEC's position that

the stormwater general permit scheme is lawful because it

complies with EPA stormwater regulations and ECL requirements,

and reflects the legislative preference for a streamlined

regulatory process which reduces or eliminates administrative

burdens (see id. at 27).

I agree with the majority that the General Permit is

designed to reduce the administrative burdens associated with the

SPDES individual permit program, and that our analysis of

petitioners' claims must consider that these are different

permitting schemes. Where I disagree with the majority is with

its conclusion that the state's stormwater General Permit

complies with the CWA and ECL when it does no more than allow

those who seek to discharge pollutants to determine for

themselves the pollution controls that satisfy the federal

standard, and as a consequence insulate themselves from liability

should they fall short of the federal mandate to reduce

discharges to the "maximum extent practicable."

DEC's own description of the General Permit and its

regulatory efforts establishes that DEC has created an

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impermissible scheme that allows pollution without first ensuring

that the MS4s' pollution controls comply with the CWA and ECL.

While the General Permit sets forth certain control measures and

management practices that every MS4 must incorporate as part of

its pollutant discharge control program, the MS4 is wholly

responsible for the task of identifying, developing and

implementing the activities and measurable goals necessary to

achieve the reduction of stormwater discharges to the "maximum

extent practicable." This is not itself unlawful because DEC

could reasonably conclude there are administrative and

substantive benefits associated with allowing the state's several

hundred municipalities to develop pollution control programs

designed to address local circumstances. However, by leaving to

an MS4 the development and adoption of its pollutant discharge

controls, and granting General Permit coverage without DEC having

reviewed the MS4's program to ensure compliance with the CWA and

ECL, the state has abdicated its essential regulatory role, in

violation of the CWA and ECL.6

The mechanics of the General Permit scheme are

6

DEC contends it reviews every NOI before accepting it.

However, DEC can point to only three instances in which it has

rejected an NOI under the 2010 General Permit. In all three, the

offending MS4 failed to identify certain best management

practices that it is implementing or intends to implement.

Stated differently, DEC has only rejected NOIs where the MS4 left

portions of the NOI's menu blank. Despite DEC's contention to

the contrary, this "review" hardly amounts to anything more than

a "rubber stamp."

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undisputed. The General Permit replaces the individual permit

system with a single permit applicable to a class of dischargers.

New York's General Permit contains the six minimum control

measures identified by the EPA as appropriate to reducing

pollutant discharges to the maximum extent practicable. DEC

contends that it has determined that these measures can be

achieved by application of certain best management practices and

has included those in the General Permit, grouped according to

their corresponding control measure. Thus, the measures, as

expanded by the specified management practices, are the

foundation of the DEC's approach to ensuring an MS4's reduction

of stormwater pollutant discharges within the mandates of the

CWA.

In directing an MS4 to employ these control measures

and management practices in order to achieve compliance with the

"maximum extent practicable" standard, the General Permit does

little to explain the standard, other than to state that if an

MS4 utilizes all the applicable management practices it will

satisfy the federal standard. However, the text of the controls

and management practices lacks the type of quantitative

explication of objective standards which an MS4 can apply to

assess whether its stormwater system's protocols actually reduce

pollutant discharges to a legally sufficient level.

For example, the minimum control measure titled

"Illicit Discharge Detection and Elimination," which refers to

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mixed stormwater discharges such as sanitary sewage, garage drain

effluent, and waste motor oil, requires as a management practice

that an MS4 "develop, implement and enforce a program to detect

and eliminate illicit discharges to the MS4" (see General Permit,

"Part VII. Minimum Control Measures - Traditional Land Use

Control," Subsection A "Traditional Land-Use Control MS4 Minimum

Control Measures," Subpart 3 "Illicit Discharge Detection and

Elimination [IDDE] - SWMP Development/Implementation, at 34-35).

This, of course, says nothing more than that the MS4 must

establish a program to comply with the law. This is but one

example of the vague management practices that provide little by

way of instruction on how an MS4 develops and implements specific

controls to achieve sufficient reduction of discharge levels.

Each and every one of those six control measures

requires that the MS4 "develop (for newly authorized MS4s),

record, periodically assess, and modify as needed, measurable

goals," and also that the MS4 "select and implement appropriate

... [activities or best management practices] and measurable

goals to ensure the reduction of all [pollutants of concern] in

stormwater discharges to the [maximum extent practicable]"

(General Permit, "Part VII. Minimum Control Measures -

Traditional Land Use Control" at 29, 33, 35, 39, 46). As the

General Permit requires, the SWMP "describe[s] the best

management practice/measurable goal, "identif[ies] time

lines/schedules and milestones for development and

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implementation"; includes "quantifiable goals to assess progress

over time"; and describes "how the covered entity will address

pollutants of concern" (General Permit, "Part X, Acronyms and

Definitions," at 95). These are hardly the type of "highly

specific" controls DEC claims them to be.

While the General Permit references other guidance, the

guidance is non-binding. Moreover, it is still the case that the

MS4 could choose to ignore the guidance, believing it has

complied with the maximum extent practicable standard only to

learn later that it has violated the CWA. This is not a merely

speculative assessment of the General Permit structure because as

the permit itself states

"[i]f a covered entity chooses only a few of

the least expensive methods, it is likely

that MEP has not been met. On the other

hand, if a covered entity employs all

applicable BMPs except those where it can be

shown that they are not technically feasible

in the locality, or whose cost would exceed

any benefit to be derived, it would have met

the standard. MEP required covered entities

to choose effective BMPs, and to reject

applicable BMPs only where other effective

BMPs will serve the same purpose, the BMPs

would not be technically feasible, or the

cost would be prohibitive"

(General Permit, "Part X. Acronyms and Definitions," at 91). As

this suggests, something less than adoption of all of the

management practices may comply with the maximum extent

practicable standard, but when that would be the case and under

what circumstances is uncertain and subject to the

particularities of the MS4.

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More significant than the opportunity for an MS4 to

select additional management practices -- or even substitute

mandatory best management practices with management practices the

MS4 determines on its own are better suited or economically

feasible, and yet still designed to ensure achieve reduction to

the maximum extent practicable -- is the fact that, even if the

mandatory management practices were clearer and specific, the

General Permit does not, alone, set the limitations that each MS4

will implement. Instead, DEC delegated that task to the MS4.

The General Permit requires that in order to utilize the measures

and management practices, the MS4 must determine the details and

logistics of the management practices it has selected. Thus, the

General Permit scheme depends on each MS4's determination and

eventual adoption of the most efficacious practices that the MS4

will apply to achieve the statutory goal of pollutant discharge

reductions to the maximum extent practicable.

To that end, the General Permit specifically requires

that the MS4 develop and implement a SWMP "designed to reduce the

discharge of pollutants from the small MS4 to the maximum extent

practicable [], to order to protect water quality, and to satisfy

the appropriate water quality requirements of the ECL and [CWA]"

(see General Permit, "Part IV. Stormwater Management Program

(SWMP) Requirements," Subsection A. "SWMP Background," at 14).

Although the General Permit requires the SWMP contain the six

measures and the mandatory management practices, the SWMP does

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more than merely recite them. Rather, the SWMP expounds upon

them, and thus reflects the MS4's determination of the

appropriate limits necessary to achieve CWA compliance.

That determination is set forth in the "measurable

goals" the MS4 develops for each of the management practices.

These goals are intended to "help the covered entities assess the

status and progress of their program" (General Permit, "Part X,

Acronyms and Definitions," at 95). They "should reflect the

needs and characteristics of the covered entity and the areas

served by its small MS4. Furthermore, the goals should be chosen

using an integrated approach that fully addresses the

requirements and intent of the [minimum control measures]" (id.

at 91).

This is not a static process, because as the General

Permit indicates, "[t]he assumption is that the program schedules

would be created over a 5 year period and goals would be

integrated into that time frame" (id.). Particularly troubling

is the fact that DEC does not review the SWMP or the Plan. In

fact, it appears DEC has gone to great lengths to avoid formal

consideration of both by prohibiting inclusion of the SWMP with

the MS4's NOI, and by allowing up to 3 years after the effective

date of permit coverage for the MS4 to develop and implement the

Plan.

If, as DEC argues, all that is required to result in

discharge reductions sufficient to comply with the CWA is the

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employment of the minimum control measures and the mandatory

management practices, there would be no need for municipal

development and articulation of "activities," "measurable goals"

and "other techniques." In reality, the MS4 is left to details

where none have been provided, and to craft a SWMP and Plan to

guide the implementation of its storm water discharge reduction

efforts. Notably, DEC anticipates that those efforts will change

over time, and thus allows the Plan to be developed and

implemented up to three years after the MS4 gains coverage under

the General Permit.

The majority concludes that "[t]here is no doubt that

the 2010 General Permit complies with EPA's 1999 regulations"

(majority op at 18). However, those very same federal

regulations for small municipal separate storm sewer systems were

deemed to violate the CWA in EDC because they failed to provide

for meaningful administrative review (see 344 F3d 832, 856 [9th

Cir 2003]). In that case, the Ninth Circuit Court of Appeals

considered a challenge to the EPA's Storm Water Phase II Rule,

under which small MS4s were authorized by an NPDES general permit

to immediately commence the discharge of storm water after

submitting an NOI. Unlike the "traditional general permitting

model," the court explained, "the Phase II Rule requires that

each NOI contain information on an individualized pollution

control program that addresses each of the six general criteria

specified in the Minimum Measures" (id. at 853). Under the Rule,

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the EPA was not required to conduct a review of each NOI prior to

discharge authorization, as it is required to conduct before

granting an application for an individual permit (id. at

854-856). The Ninth Circuit held that the permitting scheme

violated 33 USC § 1342 (p) (3) (B) (iii) because "nothing

prevents the operator of a small MS4 from misunderstanding or

misrepresenting its own stormwater situation and proposing a set

of minimum measures for itself that would reduce the discharges

by far less than the maximum extent practicable" (EDC, 344 F3d at

855). Moreover, "in order to receive the protection of a general

permit, the operator of a small MS4 needs to do nothing more than

decide for itself what reduction in discharges would be the

maximum practical reduction. No one will review that operator's

decision to make sure that it was reasonable, or even good faith"

(id.). As a consequence, the "EPA would allow permits to issue

that would do less than require controls to reduce the discharge

of pollutants to the maximum extent practicable" (id. [emphasis

in original]). Accordingly, the court remanded that aspect of

the Rule.

The Second Circuit applied similar reasoning to reject

EPA's NPDES permitting scheme, albeit in a case involving

different water pollutants, namely emissions from concentrated

animal feeding operations (CAFOs) proscribed by the EPA's CAFO

Rule. In Waterkeeper, the Circuit Court concluded that the CAFO

Rule did not require NPDES permitting authorities to review the

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management plans to ensure that the plans were developed and

implemented so as to reduce discharges as required by the federal

regulations (Waterkeeper, 399 F3d at 500).

New York's General Permit similarly fails for the

reasons articulated by the Circuit Courts in EDC and Waterkeeper.

Although the Appellate Division concluded that the General Permit

"includes[s] a variety of enforcement measures that are

sufficient to comply with the maximum extent practicable

standard" (Natural Resources Defense Council, Inc., 120 AD3d at

1243), that is besides the point because the issue is not the

propriety of the measures or the management practices, because

those alone do not establish the details of any particular MS4's

stormwater discharge program. Indeed, petitioners do not

challenge DEC's choice of minimum controls or management

practices. Rather, they challenge DEC's failure to assess for

legal adequacy the pollutant discharge proscriptions actually

developed by the municipalities, and intended to be applied by

the MS4s.

The fact that DEC provides a menu of management

practices cannot save the General Permit scheme because "nothing

requires that the combination of items that the operator of a

small MS4 selects from this 'menu' will have the combined effect

of reducing discharges to the maximum extent practicable" (EDC,

344 F3d 832, n 32). Moreover, it is not the amount of choices

that matters here--as the DEC suggests by arguing that it imposes

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forty four mandatory management practices--because more practices

are meaningless if there is no assessment as to whether the MS4

understands how those practices work and how to apply them to

ensure pollutant discharge reduction to the level required by the

CWA. This is certainly the case here where the CWA's maximum

extent practicable standard is intentionally undefined, and where

DEC's management practices are vague and generalized, often

redundant of the minimum controls.

The majority appears to marginalize the decision in

EDC, characterizing it as part of a Federal Circuit Court split

(see majority op at 25).7 However, in EDC, the Ninth Circuit

vacated the EPA regulations to the extent they did "allow permits

to issue that would do less than require controls to reduce the

discharge of pollutants to the maximum extent practicable" (EDC,

344 F3d at 855-56, citing 64 Fed. Reg. at 68753). Rather than a

division among the Circuit Courts, the Ninth Circuit decision is

the only Circuit decision on the validity of the regulations'

content. While the United States Supreme Court is the final word

on the proper interpretation of the CWA and the EPA regulations,

that Court has chosen not to take up the case (see Texas Cities

Coalition on Stormwater v E.P.A., 541 US 1085 [2004] [denying

petition for writ of certiorari]). Moreover, the Ninth Circuit

decision has affected the EPA's application of the regulations.

7

The majority treats Waterkeeper similarly, relegating it to

a footnote because that decision, "however interpreted, does not

eliminate the circuit split" (see majority op at 25 n 14).

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Indeed, the EPA issued post-EDC guidance to Water Management

Division Directors stating that "[t]he permitting authority will

need to conduct an appropriate review of Phase II MS4s' NOIs to

ensure consistency with the permit."8

Even assuming we could simply ignore that the EPA

regulations have been vacated in relevant part, notwithstanding

the majority's conclusion that the state's General Permit

"concededly" complies with the EPA regulations, the fact is that

the EPA regulations require implementation of best management

practices consistent with the SWMP (see 40 CFR 122.34 [a]

["Implementation of best management practices consistent with the

provisions of the storm water management program required

pursuant to this section and the provisions of the permit

required pursuant to § 122.33 constitutes compliance with the

standard of reducing pollutants to the 'maximum extent

practicable'”]). Therefore, so long as DEC allows General Permit

coverage to an MS4 without ensuring the intended consistency

between management practices and the individualized protocols set

forth in the SWMP, the state is in violation of the CWA (see 33

8

This guidance pre-dates the Seventh Circuit's decision in

Texas Ind. Producers and Royalty Owners Assn. v E.P.A. (410 F3d

964 [7th Cir 2005]) which held, contrary to the Ninth Circuit,

that NOIs are not subject to the CWA public participation

requirements. However, the EPA guidance has not been rescinded

and there is nothing to suggest the obsolescence of the guidance

with respect to agencies ensuring consistency with the permit and

compliance with the CWA.

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USC § 1342 [p] [3] [B] [iii] [providing that MS4 permits "shall

require controls to reduce the discharge of pollutants to the

maximum extent practicable, including management practices,

control techniques and system, design and engineering methods,

and such other provisions as the Administrator or the State

determines appropriate for the control of such pollutants"]).

It is undeniable that DEC has made efforts to adopt a

general permit scheme that complies with the CWA and ECL, and

which provides an administratively feasible approach to the

difficult task of reducing stormwater pollutant discharges.

Nevertheless, DEC's current approach is legally impermissible.

Of course, it is for the state, and not the judiciary, to

establish the state's review and assessment protocols (see Akpan

v Koch, 75 NY2d 561, 570 [1990] ["courts may not substitute their

judgment for that of the agency for it is not their role to weigh

the desirability of any action or to choose among

alternatives”]). It very well may be that the state determines,

as have other jurisdictions,9 that review of the SWMP and the

9

Texas and Mississippi, for example, require the submission

of a full SWMP contemporaneously with the filing of an NOI for

substantive review (see Texas Commission on Environmental

Quality, General Permit to Discharge Under the Texas Pollutant

Discharge Elimination System, § II.E.1 [2013] available at

https://www.tceq.texas.gov/assets/public/permitting/stormwater/tx

r040000_issued_permit.pdf [accessed April 13, 2015]; Mississippi

Department Environmental Quality, Separate Storm Sewer System

(MS4) General Permit, Condition S-1. [2009] available at

http://www.deq.state.ms.us/mdeq.nsf/pdf/epd_MS4PhaseIIStormWater

GeneralPermit/$File/22General.pdf?OpenElement [accessed April 14,

2015]).

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Plan is but one way by which the state may comprehensively and

expeditiously comply with its regulatory mandate. How best to

address this issue should be left to New York.

B. Public Participation Requirements

Petitioners argue that DEC violates statutory public

participation requirements by failing to provide an opportunity

for public comment and to request a public hearing on a MS4's NOI

and SWMP, prior to DEC's authorization of coverage under the

General Permit. DEC currently provides a full public notice and

comment period and an opportunity to request a public hearing on

the General Permit, and DEC also affords an additional 28 day

pre-coverage public comment period with respect to each NOI (see

General Permit, "Part II. Obtaining Permit Coverage," at 8). The

majority concludes this meets all applicable legal requirements.

I disagree and would find that the CWA and ECL require more pre-

coverage public participation. Specifically, because the NOI and

SWMP must contain the MS4s' pollution controls, and the SWMP must

be developed in advance of the NOI, which is then submitted to

obtain coverage under the General Permit, DEC must provide an

opportunity to request a public hearing for any particular NOI

and SWMP.

Congress explicitly sought to encourage public

participation in the development and implementation of the

nation's water pollution control measures, and required that the

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EPA and the states provide for, encourage, and assist with

"public participation in the development, revision and

enforcement of any regulation, standard, effluent limitation,

plan or program established by the [EPA] or any State" (33 USC §

1251 [e]). The intended transparency of the process is reflected

in the CWA requirement that permit applications, and the NPDES

and SPDES permits themselves be made public (see 33 USC § 1342

[j]). With respect to the demand for administrative hearings,

the CWA provides that the EPA may issue a permit "after an

opportunity for public hearing" (see 33 USC § 1342 [A] [1]

[emphasis added]).

The ECL also mandates public participation with respect

to SPDES coverage. State law requires "[p]ublic notice of a

complete application for a SPDES permit" (ECL § 17-0805 [1] [a]),

which shall include "a statement that written comments or

requests for a public hearing on the permit application ... may

be filed by a time and at a place specified" (ECL 17-0805 [a]

[ix]). The public comment shall last "not less than thirty days

following the date of the public notice . . . during which time

interested persons may submit their written views with respect to

the application and the priority ranking of the permit" (ECL §

17-0805 [1] [b]).

Petitioners argue that the public should have the

opportunity to request a hearing on the contents of the NOI and

SWMP because both contain the MS4's pollution controls.

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Petitioners are correct that an MS4 must identify and list in the

NOI its chosen management practices, and it must include in the

SWMP the controls to reduce the discharge pollutants in

accordance with the maximum extent practicable standard. Thus,

the NOI and SWMP not only affirm that the MS4 will comply with

the General Permit's terms, but they also explain how the MS4s

will meet legal requirements, based on the localities' unique

circumstances. Indeed, to ensure for itself that an MS4

understands its duties and obligations, the DEC must refer to the

NOI and SWMP.

Here, DEC issued a General Permit for the specific

purpose of allowing storm water pollutant discharges by a covered

MS4, where an MS4 has agreed to meet conditions set forth in the

CWA, ECL, federal and state regulations, and the General Permit.

A cursory review of the General Permit makes clear that it is not

specific to any particular MS4, but rather it is generic,

intended to set forth the minimum requirements identified by DEC,

which must be complied with by every MS4 seeking coverage under

the General Permit. However, as DEC has vigorously contended,

General Permit coverage is not automatic, but requires that the

MS4 submit an NOI which DEC must then accept as complete.

According to the General Permit, the NOI affirms that a

SWMP has been developed. As the parties concede, the NOI and

SWMP contain what DEC considers to be the mandatory limitations

and measurable goals an MS4 proposes to implement in order to

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ensure stormwater pollutant discharge reduction to the maximum

extent practicable, as required by the CWA. Clearly, then,

submission of a completed NOI, based as it is on an initial SWMP,

is the MS4's entree to the General Permit system, and is a

necessary step to securing authorization to lawfully discharge

pollutants in accordance with the CWA and ECL. If the NOI, and

the prerequisite SWMP, do not constitute a permit application,

then what other avenue does an MS4 have to secure permit coverage

and authorization to lawfully discharge pollutants? The NOI and

SWMP constitute an application in everything but name.

The DEC argues that the CWA and ECL public hearing

requirements apply only to individual permit applications, and

that public participation requirements are satisfied because the

public has the opportunity to submit comments and request a

public hearing regarding the General Permit itself. The EPA

similarly argued in Texas Ind. Producers and Royalty Owners Assn.

v E.P.A. (410 F3d 964 [7th Cir 2005]). In that case, the Seventh

Circuit Court of Appeals agreed with the EPA that the CWA did not

require the agency to provide a comment period or an opportunity

to request a public hearing on NOIs and Storm Water Pollution

Prevention Plans (SWPPP) submitted under the EPA's "Final

National Pollutant Discharge Elimination System General Permit

for Storm Water Discharges From Construction Activities." The

Court concluded that the CWA was ambiguous as to whether NOIs and

SWPPPs are "permits" or "permit applications", and in accordance

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with Chevron, U.S.A., Inc. v Natural Resources Defense Council,

Inc. (467 US 837 [1984]), judicially deferred to the EPA's

interpretation of those statutory terms (see Texas Ind.

Producers, 410 F3d at 978). The Court accepted as reasonable

EPA's argument that individual public hearings for NOIs and

SWMPPPs would eviscerate the administrative efficiency of the

general permit scheme (id.).

In contrast, in EDC, the Ninth Circuit had previously

rejected the EPA's argument that the CWA public hearing

opportunity requirement did not apply to NOIs because they are

not "permits". Instead, the Ninth Circuit held that the "NOI

establishes what the discharger will do to reduce discharges to

the 'maximum extent practicable'" and therefore is "functionally

equivalent to a detailed application for an individualized

permit" (344 F3d at 853).

The majority contends that the federal courts will have

to resolve this "circuit split," and concludes that DEC's general

permit scheme is permissible because it complies with the EPA's

regulations and New York's law does not require more. I disagree

because the majority's conclusion is unsupportable on the record

before us.

Notably, the EPA's position in both cases is counter to

the EPA's own description in its stormwater regulations that a

permit application is inclusive of "a notice of intent for

coverage under a general permit" (40 CFR 122.34). This

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inconsistently alone undermines the state's argument that the NOI

is something other than a permit or permit application.10

Additionally, the majority's "hands-off" approach would

leave this court with no authority to consider the legality of

state agency conduct. That is most certainly not the law, as

made plain by this Court's administrative law jurisprudence (see

Seittelman v Sabol, 91 NY2d 618, 625 [1998] [invalidating state

regulation that was "inconsistent with the controlling Federal

statute it was intended to implement"]; see also Kurcsics v

Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980][the Court

affords an agency no deference if its interpretive regulations

"run[] counter to the clear wording of a statutory provision"];

Raritan Dev. Corp. v.Silva, 91 NY2d 98 [1997] [holding that "when

an [agency] interpretation is contrary to the plain meaning of

the statutory language," the Court may overrule and "decline to

10

The majority holds that while 40 CFR 122.34 "does not

appear facially consistent" with the EPA's position in EDC and

Texas Ind. Producers, that section of the EPA's regulations is

part of a "question and answer" format intended to clarify

requirements applicable to regulated small MS4s (see majority op

at 25 n 15). Therefore, according to the majority, it is for the

federal courts to determine whether the regulations are

inconsistent with the EPA's position in those federal cases.

However, whether the EPA has taken a position at odds with what

DEC now asserts is the correct and intended interpretation of the

federal regulations is, of course, relevant to this Court's

analysis of DEC's defense to petitioners' claims. Turning to the

regulations, it is clear from the text of 40 CFR 122.34 (d) (1)

that a small MS4's NOI is a general permit application.

Notwithstanding the majority's word play, there is no avoiding

that the federal regulations are inconsistent with the EPA's

position in EDC and Texas Ind. Producers.

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enforce an agency's conflicting application thereof"]; Matter of

New York Statewide Coalition of Hispanic Chambers of Commerce v

New York City Dept. of Health & Mental Hygiene, 23 NY3d 681

[2014] [striking down the New York City Board of Health's

restriction on soda portions as exceeding its regulatory

authority given by the legislature]).11 Moreover, absent binding

precedent from the United States Supreme Court, there is no legal

impediment to this Court interpreting federal law (see Flanagan v

Prudential-Bache Sec., Inc., 67 NY2d 500, 506 [1986] ["When there

is neither decision of the Supreme Court nor uniformity in the

decisions of the lower Federal courts . . . a State court

required to interpret [a] Federal statute has the same

11

The majority argues that DEC, as the permitting agency,

must follow the EPA's interpretation of the CWA, but contends

that I suggest every state's high court may second-guess the EPA

(see majority op at 27 n 16). However, my point is not that we

can decide counter to the EPA, but rather that the Ninth Circuit

already has, and we cannot ignore that fact or the Ninth

Circuit's analysis, even if DEC and the majority would have it

otherwise.

There is also no support for the majority's concern that our

review poses a potential "impediment to implementation of a

coherent nationwide NPDES permitting scheme" (id.). The EPA

provides that while SPDES permits must comply with federal

regulations and the CWA, "[n]othing in the [regulations]

precludes a State from . . .[a]dopting or enforcing requirements

which are more stringent or more extensive than those required

[by the EPA]" (40 CFR 123.1 [h] [i] [1]). Nor is there a legal

impediment to "[o]perating a program with greater scope of

coverage than that required [by the federal regulations]" (40 CFR

§ 123.1 [h] [i] [2]). Indeed, the EPA expressly requires MS4s to

"comply with any more stringent effluent limitations in [their

State-issued] permit" (40 CFR 122.34 [e] [1]). It would appear,

then, that differences among the Circuit Courts are the more

likely obstacles to national uniformity.

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responsibility as the lower Federal courts and is not precluded

from exercising its own judgment . . . "]).

We should reject DEC's argument because under the

general permit scheme the NOI and SWMP replace an individual

permit application. To adopt approvingly DEC's position, and

EPA's argument in Texas Ind. Producers, fails to sufficiently

interrogate the general permit regulatory scheme, or fully

appreciate the role of the general public in the general

permitting process. Moreover, the court's conclusion that

requiring public hearings for each individual NOI and SWPPP would

be inconsistent with Congressional intent is not supported by the

language of the CWA. The stated purpose of that statute is to

restore and maintain the integrity of the nation's waters,

eliminate the discharge of pollutants into navigable waters, and

ensure public participation in the development and implementation

of any "plan or program" administered under the CWA by the

states. While there may be administrative efficiencies

supporting the use of a general permit scheme, they do not

outweigh the explicit objectives and goals of the CWA to protect

the country's waters. In any event, because the EPA regulations

allow for individual permits even where a general permit is in

place, the efficiency argument propounded by the DEC and EPA is

underwhelming (see 40 CFR 122.28 [b] [3] [i]).

What is actually counter to the intent of the CWA is to

provide an opportunity to request a public hearing in cases

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involving individual permits, while denying the same under a

statewide general permit scheme involving pollutant discharges

from hundreds of MS4s. The latter potentially implicates the

integrity of local water bodies more significantly than the

actions of any single polluter, and therefore requires the type

of public scrutiny and engagement envisioned by the CWA (see 33

USC § 1342 [a] [1] [the EPA may issue a NPDES permit only "after

opportunity for public hearing"]).

Therefore, DEC's determination that neither the CWA nor

the ECL requires an opportunity for a public hearing on the NOIs

and SWMPs, prior to DEC granting permit coverage, ignores the

obvious purpose and role of these documents, and undermines the

CWA's public participation requirement. As such, DEC's

interpretation is not entitled to deference, and is, for the

reasons I have stated, arbitrary and capricious. Therefore, the

NOI and SWMP should be subject to statutory public participation

requirements that include the opportunity to request a public

hearing.

III.

Accordingly, the 2010 General Permit does not provide

for adequate review of NOIs or meaningful public participation in

accordance with the CWA. Thus, I would modify the Appellate

Division order to remit the Permit to DEC for compliance. I

agree with the majority that petitioners' remaining contentions

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are without merit (see majority op at 30).

* * * * * * * * * * * * * * * * *

Order, insofar as appealed from, affirmed, with costs. Opinion

by Judge Read. Judges Pigott, Abdus-Salaam and Stein concur.

Judge Rivera dissents in part in an opinion in which Chief Judge

Lippman and Judge Fahey concur.

Decided May 5, 2015

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