In the Matter of Natural Resources Defense Council, Inc., et al., Appellants,v.New York State Department of Environmental Conservation, Respondent.BriefN.Y.March 24, 2015APL-2014-00095 Westchester County Clerk’s Index No. 16132/10 Court of Appeals STATE OF NEW YORK In the Matter of the Application of NATURAL RESOURCES DEFENSE COUNCIL, INC.; RIVERKEEPER, INC.; WATERKEEPER ALLIANCE, INC.; SOUNDKEEPER, INC.; SAVE THE SOUND; PECONIC BAYKEEPER, INC.; RARITAN BAYKEEPER, INC. (d/b/a NY/NJ BAYKEEPER); HACKENSACK RIVERKEEPER, INC., Plaintiffs-Appellants, For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules —against— THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent-Defendant. AMICI CURIAE BRIEF OF ENVIRONMENTAL LAW PROFESSORS IN SUPPORT OF PLAINTIFFS-APPELLANTS DANIEL E. ESTRIN, ESQ. PATRICK J. LANCIOTTI, LEGAL INTERN PACE ENVIRONMENTAL LITIGATION CLINIC, INC. 78 North Broadway White Plains, New York 10603 Telephone: (914) 422-4343 Facsimile: (914) 422-4437 Attorneys for Amici Curiae March 31, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................. iii INTRODUCTION ............................................................................................... 1 IDENTITIES AND INTERESTS OF THE AMICI CURIAE .............................. 2 DISCUSSION ...................................................................................................... 4 I. THE MS4 GENERAL PERMIT FAILS TO ENSURE COMPLIANCE WITH STATE WATER QUALITY STANDARDS, AND THUS VIOLATES A FUNDAMENTAL REQUIREMENT OF FEDERAL AND STATE LAW. ...................... 6 A. Federal Law Requires that Every NPDES/SPDES Permit Ensure Compliance with State Water Quality Standards. ................................................................................... 6 B. New York State Law Also Requires that Every NPDES/SPDES Permit Ensure Compliance with State Water Quality Standards ............................................................ 9 C. While the Issuance of General SPDES Permits May Create Efficiencies for the Permitting Agency and Regulated Entities, General Permits are Subject to the Same Minimum Water Quality Requirements as Individual Permits. ................................................................... 12 D. The Nature of a Regulated Discharge Has No Bearing on the Requirement that its Applicable SPDES Permit Ensure Compliance with Water Quality Standards ................. 13 ii E. The MS4 General Permit Challenged Herein Fails to Ensure That Permitted Point Source Discharges of Pollutants Will Neither Cause nor Contribute to Violations of State Water Quality Standards ........................... 14 II. THE MS4 GENERAL PERMIT VIOLATES PUBLIC PARTICIPATION REQUIREMENTS OF FEDERAL AND STATE LAW ................................................... 16 A. Public Participation Requirements Applicable to NPDES and SPDES Permitting Processes ........................... 16 B. Application of Public Participation Requirements to the MS4 General Permit ............................... 20 CONCLUSION .................................................................................................. 23 iii TABLE OF AUTHORITIES Pages Cases Federal Adams v. EPA, 38 F.3d 43 (1st Cir. 1994) ................................................... 17, 18 Arkansas v. Oklahoma, 503 U.S. 91 (1992) ........................................................ 8 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003) ................................................... 13, 19, 21, 22 EPA v. Cal. Ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) ................................................................ 5 Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007) ............................................................................. 8 Natural Res. Def. Council v. EPA, 859 F.2d 156 (D.C. Cir. 1988) ........................................................................... 18 Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732 (S.D. W.Va. 2003) ............................................................ 13 Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F. Supp. 2d 337 (S.D.N.Y. 2009) ............................................................... 20 Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) ........................................................................ passim State Catskill Mountains Ch. Of Trout Unltd. v. Sheehan, 71 A.D.3d 235 (3d Dep’t 2010) ................................................................... 11, 20 Catskill Mountains Ch. Of Trout Unltd. v. Sheehan, No. 06-3601, 2008 WL 5592764 (N.Y. Sup. Ct., Ulster Cty, Aug 5, 2008) ........................... 20 Minn. Center for Envtl. Advoc. v. Minn. Pollution Control Agency, 660 N.W.2d 427 (Minn. App. 2003) ...................................... 20 iv Niagra Mohawk Power Corp. v. State Dep’t of Envtl. Conservation, 82 N.Y.2d 191 (1993) ........................................................ 5 People v. M&H Used Auto Parts & Cars, Inc., 22 A.D.3d 135 (2d Dep’t 2005) ......................................................................... 11 Sierra Club Mackinac Ch. v. Dep’t of Envtl. Quality, 747 N.W.2d 321 (Mich. App. 2008) .................................................................. 20 Federal Administrative Decisions In re City of Marlborough, Mass. Easterly Wastewater Treatment Facility, 12 E.A.D. 235, 250, 252-53 (EAB 2005) ........................... 8 In re: Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 499 (EAB 2006) .......................................................................... 8 In re Gov't of the D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 342 (EAB 2002) .......................................................................... 8 Statutes Federal 33 U.S.C. § 1251 ............................................................................................ 4, 16 33 U.S.C. § 1311 .......................................................................................... 4, 6, 7 33 U.S.C. § 1313 ............................................................................................ 5, 15 33 U.S.C. § 1342 ................................................................................ 4, 14, 16, 21 33 U.S.C. § 1362 ................................................................................................ 21 State ECL § 17-0301 ................................................................................................... 11 ECL § 17-0501 ................................................................................................... 11 v ECL§ 17-0701 ................................................................................................ 4, 19 ECL § 17-0801 ............................................................................................... 9, 11 ECL § 17-0805 ............................................................................................. 16, 18 ECL § 17-0808 ................................................................................................... 14 ECL § 17-0811 ............................................................................................. 10, 11 ECL § 17-0901 ................................................................................................... 18 ECL § 70-0107 ................................................................................................... 19 ECL § 70-0117 ................................................................................................... 12 ECL § 70-0119 ................................................................................................... 18 Regulations Federal 40 C.F.R. § 122.4 ............................................................................................. 7, 8 40 C.F.R. § 122.28 ............................................................................................. 12 40 C.F.R. § 122.43 ............................................................................................... 7 40 C.F.R. § 122.44 ............................................................................................... 8 40 C.F.R. § 124.10 ............................................................................................. 18 40 C.F.R. § 124.11 ............................................................................................. 18 40 C.F.R. § 124.12 ............................................................................................. 18 40 C.F.R. § 124.13 ............................................................................................. 18 40 C.F.R. § 124.14 ............................................................................................. 18 State 6 NYCRR § 621.6 .............................................................................................. 16 vi 6 NYCRR § 621.7 .............................................................................................. 19 6 NYCRR § 624.3 .............................................................................................. 19 6 NYCRR § 750-1.2........................................................................................... 21 6 NYCRR § 750-1.3..................................................................................... 10, 11 6 NYCRR § 750-1.11 .................................................................................. 10, 11 6 NYCRR § 750-1.20 ........................................................................................ 11 6 NYCRR § 750-1.21 ........................................................................................ 12 6 NYCRR § 750-2.1..................................................................................... 10, 11 Legislative Materials 92 Cong. Senate Debates 38821 (1971) ............................................................. 17 S. Rep. No. 92-414 (1971) ................................................................................. 17 Secondary Sources 2 William H. Rodgers, Jr., Environmental Law Air and Water, § 4.16(A)(5)(a), at 252 (1986) ............................................................................. 6 4 Michael Gerrard, Environmental Law Practice Guide § 18.11[1], at ¶ 4 (2005) ....................................................................................... 7 3 Environmental Law Institute, Law of Environmental Protection § 13:71, at ¶ 2 (Sheldon M. Novick ed., 2002) .................................................... 7 Weinberg & Reilly, Understanding Environmental Law, § 6.03[c][5], at 142 (1998) ................................................................................... 7 - 1 - INTRODUCTION This Amici Curiae brief, respectfully submitted by the environmental law professors listed below (“Amici”), is intended to address two fundamental principles at the heart of federal and state Clean Water Act regulation: (1) that all National Pollutant Discharge Elimination System (“NPDES”) permits (including state-issued equivalents and general permits) must ensure that any discharges of pollutants authorized by the permit do not cause or contribute to violations of state water quality standards; and (2) that the development, revision and enforcement of all effluent limitations contained in such permits must meet minimum public participation requirements, including notice to the public regarding the specific proposed effluent limitations for any proposed point source discharge of pollutants, and a meaningful opportunity for members of the public to submit comments and to request a public hearing. As will be discussed below, the Amici environmental law professors agree with and support the positions advocated by the Plaintiffs-Appellants (collectively, - 2 - “NRDC”) that the municipal separate storm sewer system (“MS4”) general permit issued by the New York State Department of Environmental Conservation (“DEC”), and challenged in this proceeding (the “MS4 General Permit”), fails to satisfy each of these non-discretionary standards. Accordingly, Amici urge this Court to find that the MS4 General Permit was unlawfully promulgated and issued by DEC.1 IDENTITIES AND INTERESTS OF THE AMICI CURIAE The Amici law professors listed below teach, research and write on environmental law, including the federal Clean Water Act (hereinafter “CWA” or “the Act”), and take professional interest in the development of jurisprudence on this subject. The Amici have a longstanding interest in ensuring that the courts are accurately informed about fundamental CWA principles so that they are correctly applied, honored and upheld. Unfortunately, these important principles were diluted in a cloud of unwarranted and inappropriate agency deference by the Appellate Division in its opinion below. The Amici, who file this brief solely as individuals, and not on behalf of the institutions with which they are affiliated, are: 1 Amici note that their silence in this brief as to Petitioners’ other claims and arguments should not be interpreted as an indication of any disagreement with them, but rather only that the Amici focused their attention narrowly on the two core principles addressed herein that are applicable to all NPDES/SPDES permits. - 3 - Nadia B. Ahmad Visiting Assistant Professor in Environmental Law Pace University School of Law Michael C. Blumm Jeffrey Bain Faculty Scholar & Professor of Law Lewis and Clark Law School Michael Burger Executive Director of the Sabin Center for Climate Change Law Columbia Law School David N. Cassuto Professor of Law Pace University School of Law Kim Diana Connolly Professor of Law SUNY Buffalo Law School Myanna Dellinger Associate Professor of Law Western State College of Law Debra L. Donahue Professor of Law University of Wyoming College of Law David M. Driesen, University Professor Syracuse University College of Law Victor B. Flatt Tom & Elizabeth Taft Distinguished Professor of Environmental Law University of North Carolina School of Law Noah Hall Associate Professor of Law Wayne State University Law School Katrina Fischer Kuh Professor of Law Hofstra University School of Law Ryke Longest Clinical Professor of Law Duke University School of Law Errol Meidinger Margaret W. Wong Professor of Law SUNY Buffalo Law School Joel A. Mintz Professor of Law Nova Southeastern University Law Center Jeffrey G. Miller Professor of Law Emeritus Pace University School of Law Richard L. Ottinger Dean Emeritus Pace University School of Law - 4 - Jessica Owley Associate Professor of Law SUNY Buffalo Law School Patrick Parenteau Professor of Law Vermont Law School Zygmunt J.B. Plater Professor of Law Boston College Law School Ann Powers Professor of Law Emerita Pace University School of Law Wendy Wagner Joe A. Worsham Centennial Professor University of Texas School of Law DISCUSSION The principal, enduring “objective” of the federal Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C. § 1251(a). Pursuant to the Act, discharges of pollutants from point sources into the waters of the United States may be authorized—if at all—by an NPDES permit issued by the federal Environmental Protection Agency (“EPA”), or by a state—such as New York— with EPA-delegated NPDES permitting authority. CWA §§ 301(a), 402(a), (b), 33 U.S.C. §§ 1311(a), 1342(a), (b). The NPDES permit program sets forth the process through which the requirements of the CWA—and in New York, the Environmental Conservation Law (“ECL”)—are enforced at each point source. See id. § 402, 33 U.S.C. § 1342; ECL § 17-0701. NPDES permits are “critical to the successful implementation of the Act because—by setting forth technology-based effluent limitations and, in - 5 - certain cases, additional water quality based effluent limitations—the NPDES permit ‘defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger’s obligations under the [Act].’” Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 492 (2d Cir. 2005) (quoting EPA v. Cal. Ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976)). The CWA authorizes and requires states to establish water quality standards for each waterbody within the state. CWA § 303, 33 U.S.C. § 1313; see, e.g., Cal. ex. rel. State Water Res. Control Bd., 426 U.S. at 205 n.12. Such standards consist of the “designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” CWA § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). There are three elements of water quality standards under the CWA: (1) one or more designated best uses of each waterway consistent with the goals of the Act; (2) criteria, expressed in numerical concentration levels or narrative statements, necessary to protect those designated best uses; and (3) an anti-degradation policy designed to prevent the gradual deterioration of the quality of the water body. See id. See also Niagra Mohawk Power Corp. v. State Dep’t of Envtl. Conservation, 82 N.Y.2d 191, 194 (1993). In sum, water quality standards are intended to “define the quality goals of a water body.” Id. - 6 - I. THE MS4 GENERAL PERMIT FAILS TO ENSURE COMPLIANCE WITH STATE WATER QUALITY STANDARDS, AND THUS VIOLATES A FUNDAMENTAL REQUIREMENT OF FEDERAL AND STATE LAW. A. Federal Law Requires that Every NPDES/SPDES Permit Ensure Compliance with State Water Quality Standards Section 301(b)(1)(C) of the CWA dictates that water pollution control permits must require effluent limitations stringent enough to ensure that any permitted discharge of pollutants does not cause or contribute to a violations of any water quality standard: In order to carry out the objective of this chapter there shall be achieved . . . not later than July 1, 1977, . . . [all technology-based limitations and] any more stringent limitation, including those necessary to meet water quality standards . . . established pursuant to any State law or regulations . . . or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter. CWA § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C) (emphasis added). The CWA’s § 301(b)(1)(C) mandate is a fundamental premise of modern water pollution control law that is recognized by virtually every pertinent practice guide and treatise. The following discussions are typical: [P]oint sources subject to the NPDES program must meet not only the best technology obligations, but also ‘any more stringent limitation’ necessary to achieve water quality standards or other provisions of state or federal law, [and] [f]or every permit that is issued, then, the state water quality standards must be satisfied . . . . 2 William H. Rodgers, Jr., Environmental Law Air and Water, § 4.16(A)(5)(a), at 252 (1986). - 7 - [P]ermits issued under the NPDES system must . . . contain whatever conditions are necessary to protect water quality standards. 4 Michael Gerrard, Environmental Law Practice Guide § 18.11[1], at ¶ 4 (2005). Section 301(b)(1)(c) of the [Clean Water] Act requires that NPDES permits include limitations that will ensure that water quality standards are not violated. 3 Environmental Law Institute, Law of Environmental Protection § 13:71, at ¶ 2 (Sheldon M. Novick ed., 2002). No permit may be issued if the conditions to be imposed cannot ensure compliance with the state’s applicable water quality standards, as required by CWA § 401. Weinberg & Reilly, Understanding Environmental Law, § 6.03[c][5], at 142 (1998). Federal regulations implementing CWA § 301(b)(1)(C) mirror the Act’s water quality mandates. For example, EPA regulations explicitly state: No permit may be issued: (a) When the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA; . . . [and] (d) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States. 40 C.F.R. § 122.4 (emphasis added). Equally certain, 40 C.F.R. § 122.44(d) states: In addition to the conditions established under § 122.43(a), each NPDES permit [and therefore each state water pollution permit] shall include conditions meeting the following requirements when applicable. . . . (d) Water quality standards and State requirements: any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 of CWA necessary to: - 8 - (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality. 40 C.F.R. § 122.44(d) (emphasis added). These federal statutory and regulatory provisions make plain that an NPDES permit that does not ensure compliance with state water quality standards is unlawful as a matter of federal law. See also, e.g., Arkansas v. Oklahoma, 503 U.S. 91, 105 (1992) (NPDES permits must impose conditions that “ensure compliance with the applicable water quality requirements of all affected States.”) (citations and internal quotations omitted); Friends of Pinto Creek v. EPA, 504 F.3d 1007, 1011-12, 1017 (9th Cir. 2007) (“[t]he plain language of the first sentence of the regulation is very clear that no permit may be issued” unless the requirements of 40 C.F.R. § 122.4 are met).2 2 The EPA Environmental Appeals Board has also consistently recognized this requirement. In re: Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 499 (EAB 2006) (CWA § 301(b)(1)(C) and associated regulations “all essentially requir[e] NPDES permits to include conditions necessary to achieve state WQS more stringent than promulgated effluent limitations guidelines or standards”). A mere “possibility” of compliance with water quality standards is not sufficient to “ensure” compliance. In re City of Marlborough, Mass. Easterly Wastewater Treatment Facility, 12 E.A.D. 235, 250, 252-53 (EAB 2005) (remanding EPA- issued permit to satisfy “ensure” standard). Similarly, permit limits that are reasonably capable of achieving WQS do not satisfy the “ensure” standard. In re Gov't of the D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 342 (EAB 2002) (remanding permit and stating that “the [agency's] ‘reasonably capable’ formulation, accepting as it is of the potential that the Permit will not, in fact, attain - 9 - B. New York State Law Also Requires that Every NPDES/SPDES Permit Ensure Compliance with State Water Quality Standards. As noted above, EPA has delegated authority to DEC to issue NPDES permits, which are then known as State Pollutant Discharge Elimination System (“SPDES”) permits. New York State’s statutory authority to implement the federal NPDES program within the state is found in Title 8 of Article 17 of the ECL. The ECL implements federal CWA water quality mandates, and necessarily makes clear that all SPDES permits—including general permits like the MS4 General Permit challenged here—must ensure strict compliance with New York State water quality standards. ECL section 17-0801 links mandatory state and federal water quality requirements to the SPDES permitting system, as follows: [The purpose of this section is] [t]o create a state pollutant discharge elimination system (SPDES) to insure that the State of New York shall possess adequate authority to issue permits regulating the discharge of pollutants from new or existing outlets or point sources into the waters of the state, upon condition that such discharges will conform to and meet all applicable requirements of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251, et seq.) hereinafter referred to as the "Act", 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 discharge criteria, and monitoring, and to participate in the national pollutant discharge elimination system (NPDES) created by the Act. water quality standards, does not appear to be entirely comparable to the concept of ensuring compliance”). - 10 - ECL § 17-0801 (emphasis added). ECL section 17-0811 specifically prohibits issuance of a SPDES permit if the permit provisions fail to ensure compliance with water quality standards: SPDES permits issued pursuant hereto shall include provisions requiring compliance with the following, where applicable; 1. effluent limitation. * * * 5. any further limitations necessary to insure compliance with water quality standards adopted pursuant to state law. ECL § 17-0811 (emphasis added). DEC regulations implementing the ECL provisions discussed above make even more certain that no SPDES permit may issue if its terms and conditions are insufficient to ensure compliance with water quality standards. See 6 NYCRR § 750-1.11 (“The provisions of each issued SPDES permit shall ensure compliance with . . . [technology-based effluent limitations and] any more stringent limitations, including those . . . necessary to meet water quality standards . . . .”); 6 NYCRR § 750-1.3(e), (f) (no SPDES permit shall issue “when the conditions of the permit do not provide for compliance with the applicable requirements of the [A]ct, or regulations promulgated under the [A]ct . . . and when the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.”); 6 NYCRR § 750-2.1(b) (issuance of a SPDES permit represents - 11 - the determination “that compliance with the specified permit provisions will . . . assure compliance with applicable water quality standards,” but that the department retains the right to modify the permit or abate the activity if water quality standards are contravened notwithstanding compliance with the SPDES provisions as originally issued); 6 NYCRR § 750-1.20(a)(1) (DEC may deny a SPDES application where, inter alia, the discharge will contravene water quality standards). In sum, it could not be clearer that a SPDES permit that fails to ensure compliance with state water quality standards violates not only federal law (as discussed above), but New York State law as well. See ECL §§ 17-0801, -0501, - 0301, -0811; 6 NYCRR §§ 750-1.11, -1.3, -2.1(b), -1.20(a); see also Catskill Mountains Ch. of Trout Unltd. v. Sheehan, 71 A.D.3d 235, 239-40 (3d Dep’t 2010) (discussing “strict guidelines that must be followed in the SPDES and NPDES permitting process,” and holding there is “no regulatory authority that allows for…exemptions from…state water quality standards in a SPDES permit”), leave to appeal den., 14 N.Y. 3d 713 (2010); see also, generally, People v. M&H Used Auto Parts & Cars, Inc., 22 A.D.3d 135, 138 (2d Dep’t 2005) (highlighting testimony by DEC’s Region II regional permit administrator that SPDES permits are designed to ensure water quality). - 12 - C. While the Issuance of General SPDES Permits May Create Efficiencies for the Permitting Agency and Regulated Entities, General Permits are Subject to the Same Minimum Water Quality Requirements as Individual Permits. As discussed above, federal and state water pollution control law is unambiguous: discharge permits that do not ensure compliance with water quality standards are unlawful. These bedrock statutory and regulatory minimum requirements apply to all SPDES permits, whether they are individual permits (i.e., regulating discharges from a single facility) or general permits (i.e., applicable to a class of dischargers or activities throughout the state). The Amici acknowledge that general SPDES permits regulating discharges by a class of similarly situated dischargers or activities are authorized by federal and state law. See, e.g., 40 C.F.R. § 122.28, ECL § 70-0117(6)(b)(i); 6 NYCRR § 750-1.21(b)(5). As one court described general NPDES permits: A general permit is a single NPDES permit that covers a number of individual discharges that would otherwise require individual NPDES permits. See id. General permits may be issued for, among other things, facilities that involve the same or similar operations, that discharge the same types of waste, or that require the same or similar type of monitoring. See id. . . . When an individual seeks to engage in an activity of the type covered by a general permit, that individual simply applies for coverage under the general permit by filing a written “notice of intent” rather than applying for an individual permit. See 40 C.F.R. § 122.28(b)(2)(i). The benefit of the general permit process for individual dischargers is that approval is substantially quicker and less expensive than applying for an individual NPDES permit. On the other hand, there is a danger that the general permit process could be used to circumvent entirely the - 13 - individualized assessments contemplated by the individualized permit system. Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732, 758 (S.D. W.Va. 2003); see also, e.g., Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003). Thus, under appropriate circumstances, general permits may offer permitting agencies an efficient and cost-effective regulatory option because of the large number of facilities that can be covered under a single permit. However, the availability of general permits does not in any way relax the strict statutory and regulatory requirements that all NPDES/SPDES permits ensure that permitted discharges do not cause or contribute to violations of state water quality standards. As the Horinko court noted, “there is a danger that the general permit process could be used to circumvent entirely the individualized assessments contemplated by the individualized permit system.” Id. D. The Nature of a Regulated Discharge Has No Bearing on the Requirement that its Applicable SPDES Permit Ensure Compliance with Water Quality Standards. Importantly, the black letter requirement that all NPDES and SPDES permits ensure that the pollutant discharges they authorize do not cause or contribute to violations of water quality standards applies regardless of the type of discharges or activities that such permit may regulate. Whether a NPDES permit authorizes discharges of pollutants from industrial/manufacturing processes, a sewage - 14 - treatment plant, or a stormwater sewer system, it must ensure compliance with water quality standards. Thus, while the CWA and ECL contain specific technology-based effluent limitations that apply to stormwater discharges,3 these requirements do not supplant the minimum water quality compliance required of all SPDES permits. In other words, the requirements set forth in CWA § 402(p) and ECL § 17-0808(3)(c) are necessary—but not sufficient standing alone—to satisfy minimum standards for effluent limitations contained in a SPDES permit that regulates point source discharges of pollutants from an MS4. E. The MS4 General Permit Challenged Herein Fails to Ensure That Permitted Point Source Discharges of Pollutants Will Neither Cause nor Contribute to Violations of State Water Quality Standards. The Amici incorporate by reference and adopt the arguments set forth by NRDC in its brief concerning the specific manner in which the MS4 General permit fails to meet minimum legal requirements because it fails to ensure that discharges it purports to authorize will not cause or contribute to water quality violations. More specifically, the Amici agree with NRDC that the following 3 In particular, any permit that authorizes a discharge from an MS4 “[s]hall require control 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 [DEC] commissioner determines appropriate for the control of such pollutants.” CWA § 402(p)(3)(B)(iii), 33 U.S.C. § 1342(p)(3)(B)(iii); see also ECL § 17-0808(3)(c). - 15 - defects render DEC’s MS4 General Permit legally defective with respect to the permit’s failure to ensure compliance with water quality standards: With respect to MS4s that discharge to water quality-impaired waterbodies (i.e., waterbodies in which water quality standards are not being met) for which no total maximum daily load (“TMDL”) has been established for the pollutant(s) of concern pursuant to CWA § 303(d)(3), 33 U.S.C. § 1313(d)(3), DEC’s MS4 General permit contains no requirement that such MS4s actually reduce their contributions of pollutants of concern to those waterbodies. Rather, the MS4 General Permit merely requires such dischargers to refrain from increasing their discharges of pollutants of concern. This permit provision plainly allows discharges that are already known to cause or contribute to violations of water quality standards to continue doing so indefinitely, in violation of federal and state law. See NRDC Brief at 27-34; With respect to MS4s that discharge to water quality-impaired waterbodies for which TMDLs have been established for the pollutant(s) of concern, DEC’s MS4 General permit illegally fails to ensure compliance with applicable waste load allocations, and contains no defined baselines from which reductions may be measured. See NRDC Brief at 34-39; and Finally, DEC’s MS4 General Permit creates an impermissible self- regulatory system that allows discharging municipalities to decide for themselves, without DEC oversight, what pollution controls will purportedly ensure compliance with water quality standards. By failing to review the proposed management programs of municipalities seeking permit coverage, DEC has abdicated its responsibility as a regulator and failed to ensure that MS4s discharging pollutants pursuant to the Permit will not cause or contribute to violations of water quality standards. See NRDC Brief at 47-56. For all of these reasons, DEC’s MS4 General Permit fails to satisfy the strict federal and state law requirement that all SPDES permits ensure that authorized - 16 - discharges will not cause or contribute to water quality violations. These failures render the permit unlawful. II. THE MS4 GENERAL PERMIT VIOLATES PUBLIC PARTICIPATION REQUIREMENTS OF FEDERAL AND STATE LAW. A. Public Participation Requirements Applicable to NPDES and SPDES Permitting Processes. Congress was clear in its intention to guarantee the public a genuine and meaningful role in the implementation of the Clean Water Act by, among other things, expressly providing for public participation in the permitting process under the Act. See, e.g., Waterkeeper Alliance, 399 F.3d at 486, 503 (citing CWA § 101(e)). CWA § 101(e) provides: “Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan or program established by the Administrator or any State under this chapter shall be provided for, encouraged and assisted by the Administrator and the States.” 33 U.S.C. § 1251(e).4 Because Congress considered public participation to be “an essential element in any control program involving the nation’s waters,” it 4 CWA § 1342(b)(3) makes this a requirement for states: “To insure that the public, and any other State the waters of which may be affected, receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application.” See also ECL § 17-0805 (requiring public notice of SPDES permit applications, including permit renewals and modifications, as well as the opportunity for public hearings); 6 NYCRR § 621.6 (public notice and comment). - 17 - guaranteed the public a “genuine opportunity to speak on the issue of protection of its waters” during federal and state permit proceedings. S. Rep. No. 92-414, at 72 (1971); see also Adams v. EPA, 38 F.3d 43, 52 (1st Cir. 1994). As Senator John Cooper stated during the Senate’s debate of the Federal Water Pollution Control Act, Public participation is encouraged in the establishment of control requirements, the development of information, and in the enforcement process through citizen suits . . . . Perhaps more than in any other Federal program the regulation of environmental quality is of fundamental concern to the public. It is appropriate, therefore, that an opportunity be provided for citizen involvement. 92 Cong. Senate Debates 38821 (1971) (emphasis added). And as the United States Court of Appeals for the Second Circuit explained in its oft-cited 2005 Waterkeeper Alliance opinion: Congress clearly intended to guarantee the public a meaningful role in the implementation of the Clean Water Act. The Act unequivocally and broadly declares, for example, that “[p]ublic participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States.” 33 U.S.C. § 1251(e). Consistent with this demand, the Act further provides that there be an “opportunity for public hearing” before any NPDES permit issues, see 33 U.S.C. §§ 1342(a), 1342(b)(3); that a “copy of each permit application and each permit issued under this section [1342] shall be available to the public,” see 33 U.S.C. § 1342(j); and that “any citizen” may bring a civil suit for violations of the Act, see 33 U.S.C. § 1365(a). Waterkeeper Alliance, 399 F.3d at 503 (emphasis added). - 18 - Thus, from CWA section 101(e), the EPA developed procedural regulations governing the public comment period, which “intended to alert the EPA to potential problems with the draft permit and to ensure it has an opportunity to address those problems before the permit becomes final.” Adams, 38 F.3d at 51 (citing 44 Fed. Reg. 32,885 (1979)); see 40 C.F.R. §§ 124.10-14. In promulgating the regulations, EPA “anticipated that most policy and technical issues would be decided as part of the public comment period, which is the most open, accessible forum possible and which comes at a stage where the Agency has the greatest ability to modify a draft permit.” Adams, 38 F.3d at 51; see also Natural Res. Def. Council v. EPA, 859 F.2d 156, 177 (D.C. Cir. 1988) (discussing minimum guidelines for public participation under the Clean Water Act: “Congress contemplated that these regulations would do more than pay lip service to public participation . . . . ‘Citizen groups,’ it was said, ‘are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests’”). The New York State Legislature has also codified the public’s right to meaningfully participate in the SPDES permitting process. See, e.g., ECL §§ 17- 0805 (requiring public notice of SPDES permit applications, including permit renewals and modifications, as well as the opportunity for public hearings), 17- 0901 (public hearings), 70-0119 (public hearings). Indeed, one of the very first - 19 - provisions under the Uniform Procedures of the ECL requires DEC to promulgate rules including, but not limited to, notice, review, public participation, and public hearings. See id. § 70-0107(1). And importantly, pursuant to ECL § 17-0701(3), the Commissioner may not issue a final SPDES permit unless it complies with the essential procedural requirement of public participation. Finally, DEC’s own regulations require compliance with a rigorous process of public notice, comment, and hearings, if warranted. Under its Uniform Procedure Act regulations, DEC must notify the public when an application for a permit is deemed complete. See 6 NYCRR § 621.7. If the public’s comments raise substantive and significant issues, DEC is required to hold an adjudicatory public hearing on the permit’s application. See id. § 621.7(b). DEC must publish notice of the hearing and provide notice to the applicant and all members of the public who made written requests to participate in a hearing. See id. § 624.3. In light of the obvious importance of public participation in the implementation of the Act’s requirements—and especially the NPDES/SPDES permitting programs—federal and state courts have not hesitated to strike down regulations and permits that have been found to violate these sacrosanct public participation requirements. See, e.g.,Waterkeeper Alliance, 399 F.3d at 498-504, 524; Envtl. Def. Ctr., 344 F.3d at 856-58 (concluding that “clear Congressional intent” requires that the “substantive information about how the operator of a small - 20 - MS4 will reduce discharges to the maximum extent practicable” be subject to the Clean Water Act's public availability and public hearings requirements); Sierra Club Mackinac Ch. v. Dep’t of Envtl. Quality, 747 N.W.2d 321, 334-35 (Mich. App. 2008) (same); Minn. Center for Envtl. Advoc. v. Minn. Pollution Control Agency, 660 N.W.2d 427, 434-35 (Minn. App. 2003) (same); Catskill Mountains Ch. Of Trout Unlimited v. Sheehan, No. 06-3601, 2008 WL 5592764, slip op. at 11 (N.Y. Sup. Ct., Ulster Cty, Aug 5, 2008) (vacating SPDES permit on the grounds that, inter alia, DEC had illegally denied public opportunity to participate in selection of effluent limitations to be incorporated in SPDES permit), aff’d, 71 A.D.3d 235 (3d Dep’t 2010), leave to appeal den., 14 N.Y. 3d 713 (2010); see also Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F.Supp.2d 337, 345-46 (S.D.N.Y. 2009) (discussing likely invalidity of DEC permitting actions if federal and New York State public participation requirements are not satisfied). B. Application of Public Participation Requirements to the MS4 General Permit. To be sure, meaningful public participation is even more vital than usual where—as here—DEC has essentially allowed dischargers to self-regulate, and has failed to technically review and evaluate the critical effluent limitations adopted in a municipality’s Notice of Intent (“NOI”) and/or Storm Water Management Program Plan (“SWMP Plan”) required to be filed to obtain coverage under the - 21 - MS4 General Permit. With respect to this point—and notwithstanding DEC’s bizarre argument to the contrary—the binding pollution control measures proposed in a municipality’s SWMP Plan for purposes of the MS4 General Permit certainly constitute “effluent limitations,” i.e., they are clearly “restriction[s] on quantities, quality, rates and concentrations of chemical, physical, biological, and other constituents of effluents that are discharged into waters of the state.” 6 NYCRR § 750-1.2(31); see also CWA § 502(11), 33 U.S.C. § 1362(11).5 Because the NOIs and/or SWMP Plans required to be submitted by municipalities to DEC contain effluent limitations, they must be subjected to public notice, comment and hearing requirements demanded by federal and state law. See Waterkeeper Alliance, 399 F.3d at 501-04 (“best management practices” developed by a discharger to minimize discharges of pollutants, and submitted in a management plan to the permitting agency, constitute effluent limitations subject to public participation requirements); see also Envtl. Def. Ctr., 344 F.3d at 856-58 5 DEC’s unsupported suggestion that the “maximum extent practicable” requirements in the CWA and the MS4 General Permit, and/or measures proposed to meet that standard by municipalities in their NOIs or SWMP Plans, are not “effluent limitations,” DEC Br. at 54-55, is an unfortunate and gross misstatement of the law. The Act specifically states that “[p]ermits for discharges from municipal storm sewers…shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques…and other such provisions as the Administrator or the State determines appropriate for the control of such pollutants.” CWA § 402(p)(3)(B)(iii). Such “controls to reduce discharges of pollutants” squarely meet the federal and state definitions of “effluent limitations.” - 22 - (noting that “it is the NOIs, and not the general permits, that contain the substantive information about how the operator of a small MS4 will reduce discharges to the maximum extent practicable”). These statutory (CWA and ECL) and regulatory (DEC) requirements make clear that DEC is without authority to allow permittees to essentially promulgate their own effluent limitations in their NOIs and SWMP Plans without required public notice and input. DEC’s administration of its MS4 General Permit manifestly deprives the public of the fundamental opportunity to participate in the process to assist with DEC’s determination of the specific effluent limitations that will govern a municipality’s discharges of pollutants to specific waters of the State, shielding such effluent limitations from public scrutiny and comment. See Waterkeeper Alliance, 399 F.3d at 503; Envtl. Def. Ctr., 344 F.3d at 854-58. As such, the MS4 General Permit violates the minimum public participation requirements of federal and State law.