• Court Of Appeals Upholds General Permit Procedures For Storm Water Discharge
  • June 17, 2015 | Author: E. Christopher Murray
  • Law Firm: Ruskin Moscou Faltischek, P.C. - Uniondale Office
  • The New York State Court of Appeals, in Natural Resources Defense Council, Inc. v. New York State Department of Environmental Conservation, recently rejected a challenge to the general permit procedures adopted by New York State for storm water discharge. Under the Clean Water Act and New York State law, municipalities of over one hundred thousand residents are required to obtain a State Pollutant Discharge Elimination System (“SPDES”) permit before they are permitted to discharge storm water into rivers, lakes or the ocean. However, smaller municipalities are allowed to discharge storm water pursuant to a general permit which covers a specific geographic area, saving the smaller municipalities a tremendous amount of time and money.

    A small municipality may utilize a general permit by filing what is called a notice of intent which requires a municipality to make certain representations regarding its procedures for allowing storm water discharge. In Natural Resources Defense Council v. New York State Department of Environmental Conservation, environmental groups challenged the process whereby a small municipality may utilize the general permit, claiming that the notice of intent was an improper self-regulatory mechanism, and instead if a small municipality was going to utilize a general permit the municipality should be required to file an application subject to public hearing and comment. Currently, there is a split among the federal courts with some holding that a municipality’s use of a general permit for storm water discharge without the municipality’s procedures being subject to a public hearing or comment is illegal under federal law, with others holding that the utilization of a notice of intent to use a general permit without a public hearing or comment is permissible under the Clean Water Act.
    Federal courts in New York have not addressed the issue, but the Court of Appeals rejected a challenge under both federal and state law, holding that a notice of intent was not a permit application, did not require public hearing or comment, and was permissible. The Court of Appeals reasoned that if additional requirements were placed on the utilization of a notice of intent for a general permit for storm water discharge, the efficiencies that were to be created by the use of a general permit for smaller municipalities would be lost.
    The Court of Appeals’ Decision was on a 4-3 vote, with the dissent contending that by not requiring more regulations as to when a general permit may be used, including requiring public hearings and comments, both federal and state law that seeks to limit pollution discharge into the state’s waters would be undermined. However, what the dissent fails to recognize is by allowing small municipalities to use a general permit, the resources of the Department of Environmental Conservation can be concentrated on reviewing and enforcing restrictions on storm water runoff from larger municipalities that truly threaten our waterways. The majority opinion recognized that given the limited resources available to government, it is completely rational to expend the most resources where there is the most threat to the environment.