NRDC Prevails in Petition Against New York State Department of Conservation

New York State Supreme Court finds New York state’s general permit for stormwater discharges falls short in three key areas

In January 2010, the National Resources Defense Council, Waterkeeper Alliance and several regional Waterkeeper Alliance chapters filed suit against the State of New York, Department of Conservation (DEC) over the state’s blanket stormwater discharge permit.

In their petition, NRDC alleges that the DEC’s “MS4 General Permit“, which blanketed numerous cities and counties, violated U.S.C. § 1342 (NPDES) & ECL 17-0808(3)(c) because the permit fails to require MS4s to reduce their discharge of pollutants to the maximum extent practical. The petition further alleged that the general permit didn’t require necessary water quality monitoring by the MS4s, failed to insure compliance with water quality standards and did meet federal requirements for public participation.

The Court’s Decision & Order found that:

  • The 2010 MS4 Permit is unlawful to the extent that it incorporates a permitting scheme that creates an impermissible self-regulatory system in violation of 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c).
  • With one exception, the 2010 MS4 Permit does not violate the statutory mandate that it insure compliance with applicable water quality standards.
  • The 2010 MS4 Permit is not unlawful for it’s failure to require MS4s covered under the permit to monitor discharges.
  • The 2010 MS4 Permit is unlawful to the extend that it incorporates a permitting scheme that violates the CWA’s public participation requirements.

According to the NRDC, the court ordered the DEC to rewrite the MS4 General Permit to  address three shortcomings – provide for DEC oversight of MS4s, establish “compliance schedules”, and include public participation.

 cc image courtesy of  andyarthur on Flickr