On Tuesday, May 5, 2015, New York’s highest court upheld the New York State Department of Environmental Conservation’s (“DEC’s”) permitting scheme for municipal separate storm sewers. DEC implements the federal Clean Water Act (“CWA”) in New York, issuing State Pollutant Discharge Elimination System (“SPDES”) permits for discharges of pollutants according to federal regulations issued by the Environmental Protection Agency (“EPA”). DEC’s SPDES regulations allow cities with a population under 100,000 to obtain coverage under a general permit – as opposed to applying for an individual permit – for discharges from their storm sewers, under federal regulations issued by EPA in 1999.

DEC’s 2010 General Permit for these small municipal separate storm sewer systems – known as “small MS4s” – requires cities with covered MS4s to take several actions to reduce or eliminate pollutants that can be carried by stormwater through their sewer systems. Small MS4s can obtain coverage under the general permit by submitting a Notice of Intent (“NOI”) to be subject to the general permit; they are authorized to discharge stormwater under the terms of the general permit when DEC acknowledges that their NOI is complete. A small MS4 covered by the general permit must develop and implement a Stormwater Management Program (“SWMP”) that complies with DEC’s specifications. Ultimately, the goal of the general permit and of each small MS4’s SWMP is to reduce discharges of pollutants to the “maximum extent practicable,” as is required by the CWA.

In Natural Resources Defense Council v. New York State Department of Environmental Conservation (“NRDC v. DEC”), environmental groups challenged the validity of the 2010 general permit. The plaintiff groups contended that DEC’s general permit scheme (and EPA’s similar federal regulations) did not comply with the CWA because it created an “impermissible self-regulatory system” – that is, it allowed municipalities to essentially certify their own compliance with the CWA – and because it allowed only for written public comment, not a request for a public hearing, on each small MS4’s NOI, although State law provides for such an opportunity with respect to applications for SPDES permits. As detailed in an earlier blog post, the lower court in Westchester County agreed with the environmental groups, and in January 2012 annulled the 2010 General Permit as inconsistent with New York law. However, in November 2013 the Second Department of the Appellate Division ordered the permit’s reinstatement.

This week, the Court of Appeals upheld the decision of the Appellate Division, determining that the 2010 General Permit – which allows DEC to review the NOIs for completeness, audit small MS4s’ compliance, and revoke or amend the General Permit itself – complies with New York law, EPA regulations and the “maximum extent practicable” standard of the CWA. Three of the seven judges on the Court of Appeals dissented, and would have held that the NOIs are insufficient to ensure compliance with the law, and that the General Permit does not comply with state law requiring DEC to give the public an opportunity to request a hearing on SPDES permit applications.

The 2010 General Permit expired on April 30, 2015, and it was replaced by a two-year interim permit to allow for resolution of NRDC v. DEC. The new Interim General Permit for small MS4s contains only conforming changes (i.e. updated references to other general permits), but DEC has previously stated that it would review the content of the Interim General Permit to ensure that it complies with the final decision in NRDC v. DEC. Following last Tuesday’s decision, it seems likely that the Interim General Permit will be re-issued without significant changes unless the federal regulations governing general permits for small MS4s change in the interim.

For more information on the Court of Appeals’ decision and the permitting of stormwater discharges in New York State, contact Michael Bogin.