Court: NY water pollution needs more oversight
1/24/2012
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NEW YORK, Jan 24 (Reuters) - In a victory for environmental groups, a New York court has invalidated the state's system of monitoring pollution in stormwater runoff because of a lack of oversight.
Supreme Court Justice Joan Lefkowitz in Westchester said the state's approval process regulating the flow of polluted stormwater into waterways does not satisfy the requirements of the federal Clean Water Act.
The state will be forced to revise its rules, the judge said in her Jan. 10th ruling. The decision only applies to municipalities outside of New York City, which has its own regulatory scheme .
Rainwater washes pollution from roadways, parking lots and other impervious surfaces into municipal sewer systems and then into rivers, lakes and other bodies of water.
Under current law, the state issues a single permit to regulate such runoff for all municipalities aside from New York City. The Clean Water Act and related state environmental laws require that sewer systems include runoff "controls to reduce the discharge of pollutants to the maximum extent practicable" as part of the permit process.
The state's permit, however, was granted without adequate scrutiny of those controls, the judge wrote in her decision.
"In effect, each operator that submits a complete [permit application] is authorized to discharge stormwater while it decides for itself what reduction in pollutant discharge would meet the [maximum extent possible] standard, what control measures should be utilized, and whether that standard will in fact be met," she wrote.
Her decision, she noted, parallels a similar 2004 ruling on the federal level, in which the 9th Circuit Court of Appeals required the Environmental Protection Agency to increase oversight of municipal runoff controls in its stormwater rules.
The judge also ruled that the state had provided insufficient opportunity for public hearings and review of the municipal sewer systems' applications.
Lefkowitz declined to set deadlines for the state to issue a revised permit system.
LEADING CAUSE OF BEACH CLOSURES
In a statement, a spokeswoman for the environmental conservation department said, "We are in the process reviewing the decision and determining our next steps." A spokeswoman for the state attorney general's office, which defended the case, said the office is reviewing the ruling.
"The court for the most part got it right in holding the state DEC accountable for establishing requirements and exercising oversight of local municipalities to ensure they put in place controls required by the Clean Water Act," said Larry Levine, a lawyer for the National Resources Defense Council, which brought the lawsuit along with a number of regional environmental groups.
Levine said urban runoff contributes to pollution of waterways large and small, from Long Island Sound to the state's hundreds of rivers, streams and lakes. The state lists 300 bodies of water with pollution caused at least in part by stormwater runoff, he said.
"It consistently shows up as a leading cause of beach advisories and closures," Levine said.
The case is Natural Resources Defense Council et al. v. the New York State Department of Environmental Conservation, New York State Supreme Court, Westchester County, No. 16132/10.
For the NRDC: Larry Levine
For the other environmental groups: Reed Super of the Super Law Group
For the state: Assistant Attorney General Kevin Olson
(Reporting by Joseph Ax and Joan Gralla)
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