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-2015-00043 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. AMICUS CURIAE BRIEF OF CITIZEN’S CAMPAIGN FOR THE ENVIRONMENT IN SUPPORT OF PLAINTIFFS-APPELLANTS Susan J. Kraham, Esq. Columbia Environmental Law Clinic Morningside Heights Legal Services, Inc. 435 West 116th Street New York, New York 10027 On the Brief: (212) 854-4291 skraha@law.columbia.edu Alyssa Manlowe Counsel for Amicus Curiae Evan Preminger Surbhi Sarang Matthew Sienkiewicz Legal Interns April 1, 2015 i TABLE OF CONTENTS Table of Contents ....................................................................................................... i Table of Authorities ................................................................................................. iii Introduction ................................................................................................................ 1 Identity and Interest of the Amicus Curiae ................................................................ 2 Discussion .................................................................................................................. 4 I. STORMWATER IS THE PRINCIPAL CONTRIBUTOR TO WATER QUALITY IMPAIRMENT ............................................................................... 4 A. The Mechanics of Stormwater Flows .......................................................... 5 B. Urban Development and its Effect Upon Natural Stormwater Flows.......... 6 C. Stormwater Pollution is Intensified by Urban Development ....................... 7 II. EPA HAS REGULATED STORMWATER SINCE 1987 .............................. 8 III. STORMWATER IS NOT MERELY RAINWATER BUT IT INCLUDES MANY POLLUTANTS THAT IT SWEEPS ALONG WITH IT AS IT MAKES ITS WAY INTO THE WATERS OF THE UNITED STATES ........................................................................................10 A. Silt and Sediment.......................................................................................11 B. Turbidity .....................................................................................................13 C. Nutrients: Nitrogen and Phosphorus .........................................................13 D. Metals .........................................................................................................16 ii E. Pathogens ...................................................................................................17 F. Thermal Pollution ......................................................................................18 G. Floatables ...................................................................................................19 H. Other Pollutants in Stormwater .................................................................20 1. Pesticides .............................................................................................20 2. Chemicals and hydrocarbons ..............................................................21 3. Increased Stormwater Volume: Altered Hydrologic Flow .....................................................................................................21 IV. OTHER STATES ARE IMPLEMENTING MORE PROTECTIVE REQUIREMENTS IN THEIR MS4 PERMIT PROGRAM, PROVING THAT THOSE REQUIREMENTS ARE PRACTICABLE ...........................22 A. Other States’ Permits Demonstrate the Feasibility of Ensuring Mandated Compliance With Water Quality Standards in Waters With and Without TMDLs .........................................................................23 B. Reviewing Permittee-Developed Plans Before Approving Permit Coverage Is Necessary To Ensure Adequate Controls That Will Achieve The “Maximum Extent Practicable” Standard, and Other States Have Shown That It Is Practicable ..................................................30 C. Providing an Opportunity For Public Hearings And Comments On MS4s’ Pollution Control Plans Is Practicable and Allows the Public To Identify and Propose Solutions to Potential Problems ......................................................................................34 D. Requirements to Monitor Discharges and Their Effects On Receiving Water Bodies Are Both Practicable and Necessary For Effective Pollution Control .................................................................36 Conclusion ...............................................................................................................41 iii Table of Authorities CASES Citizens for Pennsylvania’s Future v. Dept. of Envtl. Prot., No. 2013-105-L (Envtl. Hearing Bd. Nov. 19, 2014) (Stipulation of Settlement), ........................26 STATUTES 33 USCA 1342(p) ......................................................................................... 9, 30, 31 FEDERAL REGULATIONS 40 C.F.R. § 122.26(b)(8). ........................................................................................... 9 National Pollutant Discharge Elimination System Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722 (Dec. 8, 1999)……………….......... 6, 9, 10 National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47990, 47994 (Nov. 16, 1999). ......................................................................................................... 9 NYSDEC DOCUMENTS DEC, “Dishwasher Detergent and Nutrient Runoff Law Factsheet,” (2014), available at http://www.dec.ny.gov/chemical/67239.html. .................................14 DEC, Getting Started With Your Stormwater Management Program and Plan: Thoughtful Considerations, (July 2013), available at www.dec.ny.gov/docs/ water_pdf/ms4considerations.pdf ........................................................................ 11 NYSDEC DOCUMENTS (continued) iv DEC, “MS4 Municipal Compliance Certification and Annual Report Form” (2010), available at http://www.dec.ny.gov/docs/water_pdf/ms4anrpt.pdf ........31 DEC, “Phase II SPDES General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (MS4s) – Notice of Intent” (2010), available at http://www.dec.ny.gov/docs/water_pdf/ms4ni.pdf ..............................................31 DEC, “Screening and Assessment of Contaminated Sediment” (June 24, 2014), available at www.dec.ny.gov/docs/fish_marine_pdf/screenasssedfin.pdf ........................ 11,12 DEC, SPDES General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems, Chpt. 2 (2010) available at www.dec.ny.gov/docs/water_pdf/ms4gp2011.pdf ………………………….31 DEC, “Stormwater,” (2014), available at http:// www.dec.ny.gov/chemical/8468.html. .......................................................... 13, 14 EPA DOCUMENTS EPA, “After the Storm,” (Jan. 2003), available at http://water.epa.gov/action/weatherchannel/stormwater.cfm. ...................... 17, 18 EPA, Authorization to Discharge Under The National Pollutant Discharge Elimination System, (2014), available at http://www.epa.gov/region6/6xa/pdf/mrg_ms4_final_permit_ 121114.pdf [Middle Rio Grande Permit]. ……………… 28, 29, 30. 36, 40, 41 EPA, Draft New Hampshire Phase II Small MS4 General Permit, (2013), available at www.epa.gov/region1/npdes/stormwater /nh/2013/NHMS4-NewDraftPermit-2013.pdf .............................. 26, 27, 28, 39, 40 EPA DOCUMENTS (continued) v EPA, Memorandum, “Working in Partnership with States to Address Phosphorus and Nitrogen Pollution through Use of a Framework for State Nutrient Reductions” (Mar. 2011), available at www2.epa.gov/sites/production/files/ documents/memo_nitrogen_framework.pdf. ................................................ 15, 16 EPA, “Metals: Introduction,” (July 31, 2012), available at http://www.epa.gov/caddis/ssr_met_int.html. ......................................................17 EPA, “Nutrient Pollution: The Problem,” (March 16, 2014), available at http://www2.epa.gov/nutrientpollution/problem. .................................................14 EPA, “Storm Drain Cleaning System” (July 3, 2014), available at http://water.epa.gov/polwaste/npdes/swbmp/Storm-Drain-System- Cleaning.cfm. ........................................................................................................19 EPA, “What are Suspended and Bedded Sediments?” (March 6, 2012), available at http://water.epa.gov/scitech/datait/tools/warsss/sabs.cfm. ...................... 12, 13, 22 EPA, “What is a TMDL?” (Sept. 11, 2013), available at http://water.epa.gov/ lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm. ......................................23 EPA, National Management Measures to Control Nonpoint Source Pollution from Urban Areas (Nov. 2005), available at http://water.epa.gov/polwaste/nps/urban/upload/urban_guidance.pdf.......... 16, 20 EPA, Preventing Eutrophication: Scientific Support for Dual Nutrient Criteria Factsheet (Dec. 2010), available at http://www2.epa.gov/nutrient-policy-data/preventing- eutrophication-scientific-support-dual-nutrient-criteria. ............................... 15, 16 EPA DOCUMENTS (continued) vi EPA, Total Maximum Daily Loads (TMDLs) and Stormwater (September 11, 2013) http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/stormwater_index.cfm. ... 4 EPA, Urban Nonpoint Source Fact Sheet, (2003), available at http://water.epa.gov/polwaste/nps/urban_facts.cfm. ..................................... 19, 22 PERMITS AND DOCUMENTS FROM OTHER JURISDICTIONS Cal. State Water Res. Control Bd., Fact Sheet For NPDES General Permit And Waste Discharge Requirements For Storm Water Discharges From Small Municipal Separate Storm Sewer Systems (Order), Order No. 2013-0001-DWQ (2013), available at http://www.waterboards.ca.gov/water_issues/ programs/stormwater/docs/phsii2012_5th/fs_final_sidenote.pdf ........................37 Cal. Water Res. Control Bd., Waste Discharge Requirements(WDRs) for Storm Water Discharges from Small Municipal Separate Storm Sewer systems (MS4s), (2013), available at http://www.waterboards.ca.gov/water_issues/ programs/stormwater/docs/phsii2012_5th/order_final.pdf ............... 25, 37, 38, 44 Colo. Dept. Pub. Health and Envt., CDPS General Permit: Stormwater Discharges Associated with Small Municipal Separate Storm Sewer Systems, (2008), available at https://www.colorado.gov/pacific/sites/default/files/ WQ%20COR090000%20PERMIT.pdf ...............................................................33 Maine Depart. of Envt’l Prot., General Permit for the Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems, (2013), available at http://www.maine.gov/dep/land/stormwater/ms4/2013_Municipal_ MS4_GP.pdf .................................................................................................. 35, 36 Miss. Dept. Envt’l Quality, Separate Storm Sewer System (MS4) General Permit, (2009), available at http://www.deq.state.ms.us/mdeq.nsf .......33 PERMITS AND DOCUMENTS FROM OTHER JURISDICTIONS (continued) vii Oregon Environmental Council, Stormwater Solutions Report, (Dec. 2007), …available at www.oeconline.org/resources/publications/reportsandstudies/ sstreport………………………………………………………………………5, 20 Tex. Comm. Env. Quality, General Permit to Discharge Under the Texas Pollutant Discharge Elimination System,” (2013), available at https://www.tceq.texas.gov/assets/public/permitting/stormwater/txr040000 _issued_permit.pdf ................................................................................... 32, 34, 35 Vt. Dept. of Envt’l Conservation, Phase II Small MS4 General Permit, (2012), available at www.vtwaterquality.org/stormwater/docs/ms4/sw_Final_ MS4_permit_12_5_12_adminrevised.pdf ......................................... 24, 25, 38, 39 Wash. Dept. of Ecology, Western Washington Phase II Municipal Stormwater Permit, available at http://www.ecy.wa.gov/programs/wq/stormwater/ municipal/phaseIIww/5YR/2014mod/WWAPhaseII-Permit-2014Final.pdf .......40 OTHER AUTHORITIES Department of Economic and Social Affairs, United Nations, World Urbanization Prospects the 2011 Revision, 1 (2012).……………………..8 Earl Shaver et al., Fundamentals of Urban Runoff Management: Technical and Institutional Issues 2-20-2 (2nd ed. 2007). ..................................... 5 Elizabeth Brabec et al., Impervious Surfaces and Water Quality: A Review of Current Literature and Its Implications for Watershed Planning, Journal of Planning Literature 501 (2002). ............................................................................. 6 George W. Brown & Jon R. Brazier, Controlling Thermal Pollution in Small Streams (October 1972), available at http://nepis.epa.gov/Exe/ZyPDF.cgi/ 9100TDSS.PDF?Dockey=9100TDSS.PDF. ........................................................19 Michael H. Lashmet, Snow and Ice Control, New York State Department of Transportation (2014), available at https://www.dot.ny.gov/divisions/ operating/oom/transportation-maintenance/snow-and-ice. ..................................21 OTHER AUTHORITIES (CONTINUED) viii National Research Council, Urban Stormwater Management in the United States (2008) available at www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf ........................... 4, 5, 6, 7, 8 Robert J. Gillom, Pesticides in U.S. Streams and Groundwater, U.S. Geological Survey (May 2007), available at water.usgs.gov/nawqa/pnsp/pubs/files/ 051507.ESTfeature_gilliom.pdf. ..........................................................................20 U.S. Department of Agriculture et al., Summary Report 2010 National Resources Inventory 8 (2013), available at http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/ stelprdb1167354.pdf. ............................................................................................. 8 U.S. Fish & Wildlife Service, Homeowner’s Guide to Protecting Frogs– Lawn & Garden Care (2000), available at http://www.fws.gov/contaminants/ Documents/Homeowners_Guide_Frogs.pdf. .......................................................21 1 INTRODUCTION This Amicus Curiae brief is respectfully submitted by Citizens Campaign for the Environment (“CCE” or “Amicus”). This brief addresses the substantial adverse impacts of stormwater pollution upon water quality and the inadequacies of the requirements imposed by the New York State Department of Environmental Conservation (“DEC”) in its small Municipal Separate Storm Sewer System (“MS4”) permit. Stormwater is a principal contributor to water quality degradation because runoff-based pollution can dramatically increase the levels of nutrients, pesticides, and floatables in New York’s waters. This can impair both human and ecosystem health. After examining the history and mechanics of stormwater pollution, this brief explores how other states have addressed these runoff issues in their respective small MS4 general permits. The other states’ permit provisions examined in this brief show that DEC can practicably implement the requirements that Petitioners Natural Resources Defense Council, et al. (“NRDC”) seek to enforce. The brief examines the feasibility of correcting DEC’s permit deficiencies : 1) the failure to ensure compliance with water quality standards, 2) the failure to review permittee plans and programs prior to granting authorization to discharge, 3) the lack of requisite public participation, and 4) the lack of water 2 quality monitoring requirements. These measures have been practicably implemented in other states and are within the ability of DEC to accomplish. Given the substantial negative environmental impacts of unregulated stormwater runoff and the availability of practical control mechanisms, the Amicus agrees with and supports the positions advocated by the Plaintiffs-Appellants that the MS4 permit fails to ensure, to the maximum extent practicable, a reduction in pollution, and to meet other applicable requirements of the Clean Water Act. Accordingly, Amicus urges this court to find that the MS4 general permit is insufficient under both federal and state law. IDENTITY AND INTEREST OF THE AMICUS CURIAE The Citizens Campaign for the Environment (“CCE”) is an 80,000-member organization that focuses on improving environmental quality in New York and Connecticut. Founded in 1985, CCE has worked to increase public participation and awareness of environmental issues to increase community involvement in the political process. It also regularly engages in research programs and legislative advocacy at the municipal, state, and federal level to increase both ecosystemic and human health. CCE has historically addressed a wide array of major environmental issues in New York and Connecticut, ranging from its participation 3 in helping develop the New York State Energy Plan to its successful efforts to prevent the use of pesticides on school fields. Water quality is a longstanding area of concern for CCE. It helps to organize cleanups of rivers, lakes, and beaches, such as recent efforts in both Lake Onondaga and the Long Island Sound. As members of the Long Island Clean Water Partnership, it has also helped develop guiding principles for preventing runoff. CCE maintains a longstanding interest in preventing excessive pollution and ensuring that national environmental standards are maintained, as well as ensuring that the court is fully informed of the practicality and necessity of various runoff reduction measures. This analysis of practicability of various measures of stormwater control is vital to fully understanding the deficiencies in the New York permit. 4 DISCUSSION I. STORMWATER IS THE PRINCIPAL CONTRIBUTOR TO WATER QUALITY IMPAIRMENT EPA has identified thousands of waters across the United States as impaired from stormwater sources 1 and more than 200 distinct types of impairments to our nation’s waters due to stormwater. 2 In a 2008 report, the United States National Research Council (“NRC”) identified urban stormwater as a “principal contributor” to water quality impairment. 3 The NRC is the working and publishing branch of the United States National Academies. The NRC report also stated that the “association between watercourse degradation and landscape alteration in general, and urban development in particular, seems inexorable.” 4 “All population and development forecasts indicate a continued worsening of the environmental conditions caused by diffuse sources of pollution under the nation’s current growth and land-use trajectories. Recognition of urban stormwater’s role in the degradation of the nation’s waters is but the latest stage in the history of this byproduct of the human environment.” 5 1 See EPA, Total Maximum Daily Loads (TMDLs) and Stormwater (September 11, 2013) http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/stormwater_index.cfm. 2 National Research Council, Urban Stormwater Management in the United States, 17 (2008), available at www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf [hereinafter NRC Report]. 3 See, e.g., NRC Report. 4 NRC Report at 15. 5 NRC Report at 20. 5 Stormwater discharges have a significant impact on the waters of the United States. For example, a one-acre paved parking lot generates at least sixteen times more runoff than a meadow of the same size. 6 In 2006, of the more than 15,000 beach closings or swimming advisories due to excess bacterial levels, polluted runoff and stormwater were “cited as the cause of the impairment 40 percent of the time.” 7 A. The Mechanics of Stormwater Flows When stormwater falls on the earth’s surface it may follow a number of paths. First, it may get caught in surface depressions or percolate into the soil, where it may be absorbed by plant roots and be returned to the atmosphere as water vapor through transpiration. Second, it may move down into the groundwater table, and then come up to the surface through flow in the waterways. Third, precipitation may also become runoff that travels across the earth’s surface into waterways and bodies. 8 Urban development increases the amount of precipitation that becomes runoff because it reduces permeable surfaces such as natural lands, 6 See Oregon Environmental Council Stormwater Solutions Report, at ii (Dec. 2007), available at www.oeconline.org/resources/publications/reportsandstudies/sstreport [hereinafter OEC Report]. 7 See NRC Report at 21. 8 Earl Shaver et al., Fundamentals of Urban Runoff Management: Technical and Institutional Issues, 2-20-2 (2nd ed. 2007). 6 soil, and grass and increases impervious surfaces such as rooftops, sidewalks, parking lots, and roads. 9 B. Urban Development and its Effect Upon Natural Stormwater Flows One characteristic of urban development is an increase in impervious surfaces. These impervious surfaces impede the natural ability of soil to allow water to percolate through it and instead carry polluted water directly to waterways. 10 In contrast, when rain falls onto undeveloped land covered with vegetation, leaves on the surface can absorb the impact of the rainfall, and the soil’s organic content gives the soil a structure highly conducive to infiltration. Then, rainfall (other than during the most intense events) percolates into the soil where it can be stored for days or weeks, or is evapotranspired by vegetation. Without the soil and vegetation playing their natural role on pervious surfaces, water flows rapidly across an impervious surface to stream channels in concentrated bursts of high discharge. 11 The change in flows between undeveloped natural soils and developed impervious soils is significant. Where pervious surfaces dominate, as in 9 National Pollutant Discharge Elimination System Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722 (Dec. 8, 1999). 10 Elizabeth Brabec et al., Impervious Surfaces and Water Quality: A Review of Current Literature and Its Implications for Watershed Planning, Journal of Planning Literature 501 (2002). 11 NRC Report at 18-29. 7 undeveloped lands, the majority of stormwater flow takes place below the surface after the water has been absorbed by the soils. Alternatively, when impervious surfaces dominate an area, as in developed regions, the water flow is predominantly surface runoff. The impervious surfaces found in developed areas can affect every aspect of the runoff including changes in the rate of production, volume, and chemistry of the runoff. These changes in turn can lead to effects such as erosion of streambanks, and disturbance of other elements of the channel, including tree branches that would otherwise be undisturbed. Those changes also contribute to the runoff picking up contaminants and heat from the surfaces over which it flows and transferring the heat and pollutants to the water bodies into which it flows. 12 C. Stormwater Pollution is Intensified by Urban Development As impervious surfaces replace natural groundcover and thereby decrease the amount of soil available to naturally filter rainwater at the surface, stormwater has an even greater impact. Half the world lives in urban areas. According to a United States Department of Agriculture (“USDA”) Report, about 43 million acres of land in the United States were newly developed between 1982 and 2010, a 58% 12 NRC Report at 29. 8 increase resulting in 113 million acres of developed land. 13 The population living in urban areas is projected to increase from 3.6 billion in 2011 to 6.3 billion in 2050. 14 In municipal areas, land cover can consist of roofs, roads, parking areas, storage areas, and landscaped or undeveloped areas. Of those categories, impervious cover is primarily made up of rooftops and elements of the transportation system such as roads, parking lots, and driveways. 15 Impervious cover can further be broken into two categories: directly connected impervious areas and non-directly connected. Directly connected impervious areas are areas that drain directly to the sealed drainage system without going over pervious surfaces first, and are the most serious contributor to stormwater pollution. 16 Roadways are more likely to be directly connected than rooftops, and thus have the greater impact on stormwater pollution. 17 II. EPA HAS REGULATED STORMWATER SINCE 1987 In 1987, Congress enacted Section 402(p) of the Clean Water Act to regulate stormwater under the National Pollutant Discharge Elimination System (NPDES) program. Section 402(p), in part, states that: 13 U.S. Department of Agriculture et al., Summary Report 2010 National Resources Inventory 8 (2013), available at http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/ stelprdb1167354.pdf. 14 Department of Economic and Social Affairs, United Nations, World Urbanization Prospects the 2011 Revision, 1 (2012). 15 NRC Report at 168. 16 Id. at 136. 17 Id. at 141. 9 Permits for discharges from municipal storm sewers - (i) may be issued on a system- or jurisdiction-wide basis; (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and (iii) shall require controls 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 Administrator or the State determines appropriate for the control of such pollutants. 33 U.S.C. 1342 (p)(3)(B) In 1990, EPA adopted Phase I Stormwater Rules regulating Municipal Separate Storm Sewer Systems (MS4s) covering populations of 100,000 and over and industry-associated runoff. 18 In 1999, EPA adopted the Phase II Stormwater Rule requiring small MS4s and construction sites between one and five acres in size obtain NPDES permits. 19 An MS4 is a conveyance or set of conveyances owned by a public entity, such as a state, city, town, or village, that is designed to collect and convey stormwater and that discharges to waters of the United States. 20 18 National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47990, 47994 (Nov. 16, 1999). 19 National Pollutant Discharge Elimination System Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722 (Dec. 8, 1999). 20 40 C.F.R. § 122.26(b)(8). 10 EPA promulgated these regulations to address specific concerns stemming from urban development and its effect on increasing damaging stormwater runoff. 21 III. STORMWATER IS NOT MERELY RAINWATER BUT IT INCLUDES MANY POLLUTANTS THAT IT SWEEPS ALONG WITH IT AS IT MAKES ITS WAY INTO THE WATERS OF THE UNITED STATES Urbanization (1) interferes with the land’s natural ability to absorb stormwater and (2) produces pollutants from activities of urban populations. Urban development results in more water flowing across the earth’s surface, picking up more pollutants as it does so. These pollutants include sediment, suspended solids, nutrients, heavy metals and other toxic pollutants, pathogens, toxins, organic material, and floatables. These pollutants are transported by stormwater and ultimately are deposited into nearby streams, rivers, lakes, estuaries, wetlands, and oceans. Stormwater runoff can also cause or contribute to noncompliance with water quality standards. 22 Stormwater is not simply the rainwater that flows into streams after a storm. Stormwater also includes a panoply of pollutants that are “picked up” by 21 National Pollutant Discharge Elimination System Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722, 68724 (Dec. 8, 1999). 22 National Pollutant Discharge Elimination System Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722, 68724 (Dec. 8, 1999). 11 stormwater as it collects and flows into sewers, off of roofs, down streets, and ultimately into rivers and streams. For example, the New York State Department of Environmental Conservation lists at least nine “Pollutants of Concern . . . reasonably expected to be present” in stormwater runoff. 23 Those nine pollutants are: (1) silt/sediment, (2) turbidity, (3) nitrogen, (4) phosphorus, (5) metals, (6) pathogens, (7) temperature, (8) floatables, and (9) dissolved oxygen/oxygen demand. 24 This section reviews a number of the most common sources of stormwater pollutants and their resulting impacts on the environment. A. Silt and Sediment DEC defines sediment as “comprised of all detrital, inorganic, or organic particles eventually settling on the bottom of a body of water.” 25 These particles may not be uniform in size or character but may be comprised of any number of particulate contaminants like sand-laden snow and automobile chemicals which 23 See DEC, Getting Started With Your Stormwater Management Program and Plan: Thoughtful Considerations, 6-7 (July 2013), available at www.dec.ny.gov/docs/water_pdf/ms4considerations.pdf (listing nitrogen, metals, pathogens, phosphorus, dissolved oxygen/oxygen demand, silt/sediment, temperature, turbidity and floatables). 24 DEC, Getting Started With Your Stormwater Management Program and Plan: Thoughtful Considerations, 6-7 (July 2013). 25 DEC, “Screening and Assessment of Contaminated Sediment” (June 24, 2014), available at www.dec.ny.gov/docs/fish_marine_pdf/screenasssedfin.pdf (describing procedures for assessing whether or not contaminants present in sediment at a given location have the potential to pose a risk to aquatic life). 12 build-up on roadways and other impervious surfaces. 26 When sediment and sedimentary pollutants suspended in stormwater reach waterbodies, they can be harmful to aquatic life and water quality. 27 However, both suspended and settled sediment can negatively impact a waterbody. 28 When stormwater reaches a waterbody and slows down, previously suspended particles will settle where they land and may build up unnaturally or change the natural pathway of flowing water in a stream or river. 29 In addition to being listed as a Pollutant of Concern for stormwater runoff by NYSDEC, EPA lists sediment as the most common pollutant in rivers, streams, lakes, and reservoirs. Sediment can plug underground injection systems when stormwater is discharged underground instead of to surface waters. Abrasive sedimentary particles can severely damage fish gills and harm other invertebrates. 30 Fish or other aquatic life may consume large quantities of sediment, “causing illness, reduced growth and eventual death, depending on other contaminants that may be adsorbed to the sediment.” 31 Sediment may impair the quality of water leading to an increased risk of infection and disease for plants and 26 DEC, “Screening and Assessment of Contaminated Sediment” at 3 (June 24, 2014), available at www.dec.ny.gov/docs/fish_marine_pdf/screenasssedfin.pdf. 27 Id. 28 EPA, “What are Suspended and Bedded Sediments?” (March 6, 2012), available at http://water.epa.gov/scitech/datait/tools/warsss/sabs.cfm. 29 Id. 30 Id. 31 Id. 13 animals, including humans. 32 Additionally, sediment negatively impacts aquatic animal reproduction. Sediment buildup can destroy fish spawning areas, suffocate eggs, and bury larvae. 33 B. Turbidity Soil erosion and many other solid or chemical floating pollutants may cloud stormwater, increasing the turbidity of the waterbodies to which it flows. 34 This may impair visibility and harm aquatic animals or reduce their feeding efficiency due to limited vision. In addition, cloudy water reduces sunlight penetration and further harms aquatic plant life. 35 Increased turbidity also adversely impacts aquatic insects that are the base of the food chain. 36 Therefore, stormwater- carrying sediments from construction and urban activities, erosion and soil from rain or stormwater, and other light-blocking particles will increase turbidity and impair the waterbodies of New York. 37 Besides eutrophication discussed in the next section, other common sources of turbidity include stormwater runoff from construction and soil erosion. 38 32 Id. 33 Id. 34 DEC, “Stormwater,” (2014), available at http://www.dec.ny.gov/chemical/8468.html. dec.ny.gov/chemical/8468.html (Last accessed Dec. 21, 2014) 35 Id. 36 Id. 37 Id. 38 Id. 14 C. Nutrients: Nitrogen and Phosphorus 39 Both nitrogen and phosphorus are organic nutrients present in our environment and atmosphere. However, when excess amounts of these nutrients enter the ecosystem, the resulting pollution can devastate the natural environment. Specifically, when stormwater carries excess amounts of these organic nutrients into waterbodies, the nutrient pollution impairs water quality and harms aquatic habitats. 40 Nitrogen is readily dissolved in water, and phosphorus attaches to soil particles. 41 These nutrients may bind to soil particles and travel into waterways via stormwater runoff. Therefore, nutrients are easily discharged into waterbodies from stormwater runoff. 42 The addition of nitrogen and phosphorus in a waterbody through fertilizers, detergents, or sewage can disrupt the natural balance of the ecosystem. 43 Another source of nutrients is improperly disposed domestic pet waste left on sidewalks or 39 EPA, “Nutrient Pollution: The Problem,” (March 16, 2014) available at http://www2.epa.gov/nutrientpollution/problem. 40 EPA, “Nutrient Pollution: The Problem,” (March 16, 2014) available at http://www2.epa.gov/nutrientpollution/problem. 41 Id. 42 DEC, “Stormwater,” (2014), available at http://www.dec.ny.gov/chemical/8468.html. 43 Since the 1970s, New York’s Department of Environmental Conservation (“DEC”) has recognized the detrimental effects of phosphates in detergents. See DEC, “Dishwasher Detergent and Nutrient Runoff Law Factsheet,” (2014), available at http://www.dec.ny.gov/chemical/ 67239.html. 15 parkways. 44 Heavy rain, snowmelt, or storms may wash large volumes of nutrients into a single waterbody. When excess levels of nitrates or phosphorus reach an aquatic environment the pollution may cause an algal bloom. This process of rapid algal growth is called eutrophication. While eutrophication does occur naturally in some parts of the world, the natural process occurs extremely slowly. When eutrophication occurs artificially due to extra nutrients in stormwater runoff, the natural processes are expedited. Many aquatic ecosystems cannot support rapid growth caused by excess nutrients added into the aquatic ecosystem. The subsequent decay of masses of algae and plankton is a particularly harmful to the waters and biota that depend upon it. Algae have a relatively short lifespan and decaying organisms consume oxygen during the decomposition process. This can lead to hypoxia, or reduced dissolved oxygen levels in waterbodies. Hypoxic conditions harm the entire aquatic ecosystem, depriving shellfish and larger aquatic life of oxygen necessary for survival. 45 44 EPA, Memorandum, “Working in Partnership with States to Address Phosphorus and Nitrogen Pollution through Use of a Framework for State Nutrient Reductions”(Mar. 2011) available at www2.epa.gov/sites/production/files/documents/memo_nitrogen_framework.pdf. [ [hereinafter “EPA March 2011 Memorandum”]. 45 EPA, Preventing Eutrophication: Scientific Support for Dual Nutrient Criteria Factsheet (Dec. 2010), available at http://www2.epa.gov/nutrient-policy-data/preventing-eutrophication- scientific-support-dual-nutrient-criteria. 16 Additionally, enhanced growth of aquatic vegetation usually leads to decreases in water transparency, or increased turbidity. 46 Without adequate sunlight, bottom-dwelling plant species may die-off and begin the decaying process even sooner. 47 Finally, some bacterial algal blooms produce toxic compounds resulting in red tide, or in extreme cases, dead zones. 48 If these toxins make their way up the food chain they can result in livestock mortality or shellfish poisoning in humans. 49 A 2011 EPA Memorandum found that 50% of U.S. streams have medium to high levels of nitrogen and phosphorus and that “[n]itrogen and phosphorus pollution has the potential to become one of the costliest and the most challenging environmental problems we face.” 50 D. Metals The bulk of metals found in stormwater runoff come from the transportation sector. A 2005 report conducted by the EPA found a positive correlation between concentrations of roadway pollutants and traffic volume. 51 Even the most environmentally friendly vehicles “shed small amounts of metals” from tire wear, 46 Id. 47 Id. 48 Id. 49 EPA, Preventing Eutrophication: Scientific Support for Dual Nutrient Criteria Factsheet (Dec. 2010), available at http://www2.epa.gov/nutrient-policy-data/preventing-eutrophication- scientific-support-dual-nutrient-criteria 50 EPA March 2011 Memorandum, supra note 44. 51 EPA, National Management Measures to Control Nonpoint Source Pollution from Urban Areas 7-3 (2005). 17 exhaust, brake linings, motor oil and engine parts. 52 These metals build up on roadways and parking lots until the next storm washes the pollution into storm drains and ultimately into surface waters of the nation. Many metals found in stormwater runoff impact either human or aquatic life: lead, zinc, cadmium, chromium, mercury, copper, cobalt, iron, and nickel. Some metals can bind to organic matter or soil particles, and others are dissolved in water. Because rainwater is naturally slightly acidic, it has the ability to dissolve heavy metals that compounds the health and environmental effects of stormwater runoff from urban areas. 53 While concentrations of metals naturally occur across ecosystems, stormwater runoff may carry excess and toxic quantities of metals and metal particles to waterbodies. Metals can be extremely harmful to life, some in extremely small quantities. Lead, for example, can be fatal to humans and aquatic life. Chromium can damage fish gills and cause birth defects in animals. 54 E. Pathogens 55 Stormwater runoff frequently carries bacteria and viruses into our nation’s waterbodies. Common sources of the pathogens found in stormwater are illicit 52 EPA, “Metals: Introduction,” (July 31, 2012), available at http://www.epa.gov/caddis/ssr_met_int.html. 53 Id. 54 Id. 55 EPA, “After the Storm,” (Jan. 2003), available at http://water.epa.gov/action/weatherchannel/stormwater.cfm. 18 discharges and domestic pet wastes or other animal wastes. 56 Fecal waste from pets or other animals that is left on sidewalks or other impervious surfaces can harbor E.coli bacteria, tapeworm and other parasites that may be transmittable to humans or other animals. 57 Melting snow or falling rainwater will wash pathogens left on driveways, roadways and other urban surfaces into storm drains and ultimately rivers and may cause disease and illness in both humans and animals. 58 F. Thermal Pollution Surface runoff that has extended contact with impervious cover may have an increased temperature especially in warmer spring and summer months. Dark impervious surfaces, such as blacktop used in roadway surfaces or dark-colored rooftops, will often be significantly warmer than soil or natural pervious groundcover that would otherwise filter rainwater. Heated runoff from impervious surfaces may contribute to unnaturally warm water temperatures. Further, impervious surfaces reduce the ability of rainwater to recharge groundwater supplies. Without cool groundwater to supply streams and rivers, warmer runoff will have a measurable impact on the temperature of surrounding waterbodies. Some aquatic species will not be able to adapt or survive when their 56 Id. 57 Id. 58 Id. 19 surrounding habitats change temperature so quickly. 59 High water temperatures have a number of adverse impacts including lowering the amount of dissolved oxygen in the water, accelerating growth of bacteria and parasites that can be lethal to fish, and stimulating algae growth. 60 G. Floatables “Floatables” is the category of stormwater pollutants that includes street litter that floats on or near the surface of runoff. Floatables are swept up in rain events into sewers and waterbodies leading to all types of litter damage to the natural environment. Litter such as plastic bottles, fishing line, and six-pack holders can entrap aquatic animals or otherwise be extremely harmful to aquatic habitats. Animals may accidentally ingest plastic and suffer serious or fatal injury. Other types of trash such as food leftovers and diapers may carry harmful bacteria into waterways if not disposed of properly. 61 Storm drains may become clogged with trash, debris, or other large floatables. If storm drains are unable to function properly, they may cause 59 See EPA, Urban Nonpoint Source Fact Sheet, (2003), available at http://water.epa.gov/polwaste/nps/urban_facts.cfm. 60 George W. Brown & Jon R. Brazier, Controlling Thermal Pollution in Small Streams 7-8, (October 1972), available at http://nepis.epa.gov/Exe/ZyPDF.cgi/9100TDSS.PDF?Dockey=9100TDSS.PDF. 61 EPA, “Storm Drain Cleaning System” (July 3, 2014) available at http://water.epa.gov/polwaste/npdes/swbmp/Storm-Drain-System-Cleaning.cfm. 20 flooding in local areas. 62 H. Other Pollutants in Stormwater 1. Pesticides Overuse of pesticides on lawns can lead to contamination of runoff, and studies have shown that in urban lawns soil is often compacted increasing the amount of runoff, making it comparable to impervious pavement in some cases. 63 Pesticides can also reach water bodies by leaching into groundwater. 64 In a 2006 study published by the United States Geological Survey, pesticides were detected in 97 percent of urban stream water samples across the country. 65 Though DDT and dieldrin were banned in the 1970s, these “legacy chemicals,” along with currently applied pesticides and insecticides, are “highly persistent in the environment” and will continue to be released into waterbodies via soil erosion. 66 Additionally, according to the U.S. Fish & Wildlife Service, 62 Id. 63 EPA, National Management Measures to Control Nonpoint Source Pollution from Urban Areas 9.2.1.3, (Nov. 2005), available at http://water.epa.gov/polwaste/nps/urban/upload/urban_guidance.pdf. 64 Id. at 7.3.5.5. 65 See Robert J. Gillom, Pesticides in U.S. Streams and Groundwater, U.S. Geological Survey (May 2007), available at water.usgs.gov/nawqa/pnsp/pubs/files/051507.ESTfeature_gilliom.pdf. 66 Oregon Environmental Council Stormwater Solutions Report, at ch. 1 (Dec. 2007), available at www.oeconline.org/resources/publications/reportsandstudies/sstreport [hereinafter OEC Report]. 21 homeowners use up to 10 times more pesticides per acre on their lawns than farmers apply to their crops per acre. 67 2. Chemicals and hydrocarbons Road salting is done for several winter months to keep an increasing number of automobiles safe from icy roadways. 68 In 2013, New York State Department of Transportation used 1,048,760 tons of salt on New York highways. 69 Snow and stormwater runoff may carry road salt from roadways into surrounding waterbodies. Chemicals associated with salting operations (i.e. sodium, chloride and cyanide) can also reach high levels in runoff from sites where salt is stored and handled, even if recommended handling procedures are followed. 70 These chemicals and hydrocarbons pollute stormwater runoff, which may be harmful to ecosystems and animal life. 3. Increased Stormwater Volume: Altered Hydrologic Flow Though not a pollutant itself, another adverse consequence of stormwater is the alteration of hydrologic flows. Unnaturally high volume of runoff from impervious surfaces may erode stream-banks and streambeds, change the shape 67 U.S. Fish & Wildlife Service, Homeowner’s Guide to Protecting Frogs– Lawn & Garden Care (2000), available at http://www.fws.gov/contaminants/Documents/Homeowners_Guide_Frogs.pdf. 68 Michael H. Lashmet, Snow and Ice Control, New York State Department of Transportation (2014), available at https://www.dot.ny.gov/divisions/operating/oom/transportation- maintenance/snow-and-ice. 69 Id. 70 Id. 22 and dimension of river channels, and alter aquatic habitat and channel stability. 71 Because storm drains consolidate runoff into channels and pipelines, the volume of runoff after a rainfall may gain significant velocity before leaving the storm drain and entering a stream or other waterbody. The subsequent power blast of runoff can erode riverbanks and alter the flow of water in existing streams and waterbodies. If the runoff is carrying high loads of sediment, the particles may settle in unnatural piles in the stream or riverbed further altering the natural flow of the river. 72 IV. OTHER STATES ARE IMPLEMENTING MORE PROTECTIVE REQUIREMENTS IN THEIR MS4 PERMIT PROGRAM, PROVING THAT THOSE REQUIREMENTS ARE PRACTICABLE A review of other states’ general MS4 permits demonstrates that New York and its Department of Environmental Conservation can practicably implement the requirements of the Clean Water Act to protect the State’s waterbodies from stormwater pollution. MS4 permit provisions in a number of other states – along with a settlement agreement in Pennsylvania – illustrate ways in which New York can feasibly protect the waterbodies of the state. Those other states include not only smaller states such as Vermont, but also those of heavily populated states like 71 EPA, “What are Suspended and Bedded Sediments?” (March 6, 2012), available at http://water.epa.gov/scitech/datait/tools/warsss/sabs.cfm. 72 See EPA, Urban Nonpoint Source Fact Sheet, (2003), available at http://water.epa.gov/polwaste/nps/ urban_facts.cfm. 23 California and Texas and geographically diverse states such as Mississippi and Colorado. In addition to statewide general permits, this section also looks to best practices from sub-state and region-specific permitting regimes. Each of these states’ permits provides examples of provisions that New York can and should adopt. Specifically, they show it is feasible for DEC to implement legally sufficient MS4 permitting requirements in four different areas: (1) water quality standards and TMDLs, (2) review of potential permittees’ plans, (3) opportunity for public comment, (4) and water quality monitoring. A. Other States’ Permits Demonstrate the Feasibility of Ensuring Mandated Compliance With Water Quality Standards in Waters With and Without TMDLs Notwithstanding DEC’s claim that its legally deficient water quality standards (“WQS”) permit provisions are the best that it can do, 73 other states’ MS4 general permits prove that ensuring water quality standards compliance is possible, even in watersheds that lack TMDLs 74 or whose TMDLs lack 73 DEC says that it has imposed “reasonable controls” on discharges but does not, and cannot, argue that it is ensuring compliance with WQS. DEC also argues that it cannot do any more than it has because dischargers “cannot know” what to do if no TMDL has been developed. See DEC Court of Appeals Brief at 73 (Dec. 18, 2014); see also DEC Reply Brief on Appeal at 22-23 (Oct. 25, 2012) (stating that “DEC—like most states—has not assigned individual waste load allocations (based on TMDLs) to each municipality whose storm sewer system discharges into the body of water. In the meantime, the General Permit requires municipalities that discharge into impaired waters without TMDLs to implement best management practices and, in addition, to ‘ensure no net increase’ in discharge of identified pollutants of concern.”). 74 A TMDL is a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that load among the various sources of that pollutant. See EPA, “What is a TMDL?” (Sept. 11,2013), available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm. 24 individualized wasteload allocations (“WLAs”). Vermont’s MS4 general permit demonstrates how a state can ensure WQS compliance in waters with and without TMDLs. First of all, Vermont’s permit states in plain terms: “Discharges shall not cause or contribute to an exceedance of applicable water quality standards for the receiving water.” 75 Additionally, the permit requires that permittees must implement control measures to attain TMDL wasteload allocations, even if those WLAs are expressed as aggregate reductions for a group of MS4s: If the applicable TMDL specifies a wasteload allocation or other requirements either individually or categorically for the small MS4 discharge, the permittee shall describe in its annual reports all control measures which have been or are planned to be implemented to control discharges consistent with the assumptions and requirements of the TMDL WLA. The permittee shall include in the annual reports and the Storm Water Management Plan (“SWMP”) the rationale supporting the permittee’s assessment that such controls are adequate to meet the applicable TMDL requirements. 76 Vermont’s permit also ensures compliance with WQS when permittees are discharging into impaired waters that lack an approved TMDL: If a small MS4 discharges to an impaired water that is without an approved TMDL, the permittee shall comply with Part IV of this permit and address in its SWMP and annual reports how any discharges that have the potential to cause or contribute to the impairment will be controlled so that they do not cause or contribute to the impairment. A small MS4 may achieve an increased level of control through additional BMPs or enhancement of existing BMPs. If elimination of such discharges is impossible within 60 75 Vt. Dept. of Envt’l Conservation, Phase II Small MS4 General Permit § IV.B.1 at 9 (2012), available at www.vtwaterquality.org/stormwater/docs/ms4/sw_Final_MS4_permit_12_5_12_adminrevised.p df [hereinafter Vermont Permit]. 76 Vermont Permit § IV.C.1.c at 10. 25 days, then the permittee shall submit to the secretary a plan for eliminating or controlling its discharges. The plan shall include an assessment of whether MS4 discharges are potential contributors to the identified impairment and identify the sources of the discharge and, unless available information indicates that the permittee’s discharges are not a potential contributor to an impairment, a response plan that identifies additional or modified BMPs to be implemented. This plan shall be designed as an iterative process. The content of the response plan should reflect the magnitude and complexity of the impairment and the permittee’s potential to contribute to the impairment. This 60-day period does not constitute a grace period for purposes of enforcement of Water Quality Standards or this permit. 77 In California, “[d]ischarges shall not cause or contribute to an exceedance of water quality standards contained in a Statewide Water Quality Control Plan, the California Toxics Rule, or in the applicable Regional Water Board Basin Plan,” 78 regardless of whether a TMDL has been prepared. In addition, a recent settlement between the Pennsylvania Department of Environmental Protection (“PADEP”) and Penn Future resolved a lawsuit over PADEP’s administration of the state’s MS4 general permit and resulted in commitments by PADEP to improve its next-generation MS4 permit specifically with regard to water quality standards in water bodies without TMDLs. The settlement provides that the next PADEP-issued permit will require MS4s to develop, submit, and implement “pollutant reduction plans,” defined as “[a] written 77 Vermont Permit § IV.C.1 at 16. 78 Cal. Water Res. Control Bd., Waste Discharge Requirements(WDRs) for Storm Water Discharges from Small Municipal Separate Storm Sewer systems (MS4s), § D at 19 (2013) available at http://www.waterboards.ca.gov/water_issues/programs/stormwater/docs/phsii2012_5th/order_fin al.pdf 26 plan developed by the permittee of a Small MS4 that discharges to a water impaired by nutrients and/or sediment where there is no specific TMDL WLA for the applicable pollutant(s) of concern, describing the actions the permittee will take to reduce and/or address the specified impairment.” 79 The fact that PADEP agreed to include this provision in its next MS4 permit shows that ensuring WQS compliance in waters without TMDLs is achievable. Next, it is useful to look at the MS4 permit for New Hampshire, issued by EPA. 80 EPA has not delegated authority to New Hampshire and, therefore, the federal agency retains authority to issue the state’s permit. Upon the expiration of the 2008 MS4 permit for New Hampshire, EPA revised and reissued a draft of New Hampshire’s next-generation permit for public comment. 81 Though still in draft form, New Hampshire’s permit is instructive with regard to its provisions for discharges subject to non-approved TMDL requirements. For discharges to Impaired Water without an Approved TMDL in New Hampshire, EPA requires the permittee to address in the SWMP and annual reports 79 Citizens for Pennsylvania’s Future v. Dept. of Envtl. Prot., No. 2013-105-L (Envtl. Hearing Bd. Nov. 19, 2014) (Stipulation of Settlement), *at 4, 5-6 [hereinafter PA Settlement]. 80 EPA, Draft New Hampshire Phase II Small MS4 General Permit (2013), available at www.epa.gov/region1/npdes/stormwater/nh/2013/NHMS4-NewDraftPermit-2013.pdf [hereinafter New Hampshire Permit]. 81 A final permit decision takes place following the conclusion of the public comment period. Thus, New Hampshire’s permit is still in draft form. See EPA, “Draft New Hampshire Small MS4 General Permit” (2014), available at http://www.epa.gov/region1/npdes/stormwater/MS4_2013_NH.html (website describing New Hampshire’s permitting process and collecting links to relevant New Hampshire documents, including the 2013 draft permit). 27 “how the discharge of pollutant(s) identified as causing the impairment (pollutant(s) of concern) will be controlled such that they do not cause or contribute to the impairment.” 82 The permit provides a practical approach to WQS compliance in these circumstances by requiring the permittee undertake an iterative approach of management practice implementation and assessment, through a “Water Quality Response Plan” 83 (“WQRP”) included with its SWMP. The iterative approach of the New Hampshire permit’s WQRP is designed to lead to ultimate compliance with standards. 84 The substance of each WQRP “should reflect the magnitude and complexity of the impairment and the permittee’s potential to contribute to the impairment.” 85 In addition, “[t]he permittee may develop a single WQRP covering all impairment pollutants, waterbodies, and catchments; or it may develop multiple separate WQRPs (subdivided by pollutant, waterbody, and/or catchment), so long as its separate WQRPs, taken together, collectively address all impairment pollutants, waterbodies, and catchments.” 86 Each WQRP shall contain a “comprehensive listing of additional or modified BMPs to address pollutants causing impairments” 87 as well as a “description of the monitoring or other assessment and 82 New Hampshire Permit § 2.2.2 at 18 (emphasis added). 83 New Hampshire Permit § 2.2.2(a)(ii) at 19. 84 Id. 85 Id. 86 New Hampshire Permit § 2.2.2(a)(ii) at 19. 87 New Hampshire Permit § 2.2.2(a)(ii)(b)(2) at 20. 28 evaluation efforts that will be implemented to monitor, assess or evaluate the effectiveness of the WQRP.” 88 Finally, a “permittee shall include the WQRP in its first annual report and the permittee shall report on the status of each BMP in each subsequent annual report.” 89 Another permit to consider is the Middle Rio Grande Watershed MS4 Permit, which “authorize[s] stormwater discharges to waters of the United States from MS4s within the Middle Rio Grande Watershed” located in New Mexico. 90 As with New Hampshire, EPA retains authority to issue permits for the state of New Mexico. The Middle Rio Grande Watershed permit requires that “discharges shall not cause or contribute to an exceedance of applicable surface water quality standards (including numeric and narrative water quality criteria) applicable to the receiving waters.” 91 Further, permittees discharging to impaired waters with and without approved TMDLs “shall control the discharges of pollutant(s) of concern to impaired waters and waters with approved TMDLs . . . and shall assess the success in controlling those pollutants.” 92 88 New Hampshire Permit § 2.2.2(a)(ii)(b)(4) at 21. 89 Id. 90 EPA, Authorization to Discharge Under The National Pollutant Discharge Elimination System, § I.A.1 (2014) available at http://www.epa.gov/region6/6xa/pdf/mrg_ms4_final_permit_121114.pdf [Hereinafter Middle Rio Grande Permit]. 91 Middle Rio Grande Permit § I.C.1(a) at 12. 92 Middle Rio Grande Permit § I.C.2(b) at 15. 29 For MS4s discharging to waters with approved TMDLs, “where stormwater has the potential to cause or contribute to the impairment, the permittee shall include in SWMP controls targeting the pollutant(s) of concern along with any additional or modified controls required in the TMDL and this section.” 93 Specifically, the permit demonstrates that there are feasible approaches to implementing TMDLs with aggregate WLAs, proving that New York can do it too. With regard to aggregate WLAs, the permit states that: A. If the permittee is subject to a TMDL that identifies an aggregate Waste Load Allocation (WLA) for all or a class of permitted MS4 stormwater sources, then the SWMP may identify such WLA as the measurable goal. Where an aggregate WLA measurable goal is used, all affected MS4 operators are jointly responsible for progress in meeting the measurable goal and shall (jointly or individually) develop a monitoring/assessment plan. This program element may be coordinated with the monitoring required in Part III.A. B. Alternatively, if multiple permittees are discharging into the same impaired water body with an approved TMDL (which has an aggregate WLA for all permitted stormwater MS4s), the MS4s may combine or share efforts, in consultation with/and the approval of NMED, to determine an alternative sub-measurable goal derived from the WLA for the pollutant(s) of concern (e.g., bacteria) for their respective MS4. The SWMP must clearly define this alternative approach and must describe how the sub-measurable goals would cumulatively support the aggregate WLA. 93 Middle Rio Grande Permit § I.C.2(b)(i) at 15. 30 Where an aggregate WLA measurable goal has been broken into sub-measurable goals for individual MS4s, each permittee is only responsible for progress in meeting its WLA sub-measurable goal. 94 These states’ MS4 permits and the recent Pennsylvania settlement demonstrate specific ways in which New York’s MS4 permit can feasibly ensure compliance with the state’s water quality standards. B. Reviewing Permittee-Developed Plans Before Approving Permit Coverage Is Necessary To Ensure Adequate Controls That Will Achieve The “Maximum Extent Practicable” Standard, and Other States Have Shown That It Is Practicable A second area where the New York permit fails to meet the standards imposed by the CWA relates to the minimal review that accompanies the approval process for the individual municipalities’ permit applications. The CWA requires that all permits “establish control measures that reduce the discharge of pollutants to the maximum extent practicable.” 95 Under the New York MS4 permit, however, the specifics of the plan implemented are left almost entirely to the municipalities. In the New York process, the municipality decides what must be selected from a general menu of the minimum control measures and the method for achieving those standards. 96 Prior to the plan’s implementation, however, the only 94 Middle Rio Grande Permit § I.C.2(b)(i)(C) at 15. 95 33 USCA 1342(p) 96 DEC, “Phase II SPDES General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (MS4s) – Notice of Intent” (2010), available at http://www.dec.ny.gov/docs/water_pdf/ms4ni.pdf [hereinafter “Notice of Intent”]; DEC, “MS4 31 procedural requirement is the submission of the plan to DEC with a Notice of Intent (“NOI”), a form document indicating basic information concerning their MS4 permits. 97 DEC reviews the application for completeness rather than for any specific substantive content. Once it determines a municipality’s NOI is “complete,” DEC grants authorization to discharge under the permit. 98 Furthermore, the limited information contained in the municipality’s Annual Report - a mandatory but cursory report that all covered entities must submit - and the NOI make impossible for the DEC to effectively review the permittee’s plans. 99 The NOI and the Annual Reports are predominantly checklist forms and do not elucidate specific information. 100 Although DEC points to its ex-post reviews and audits of plans to ensure compliance, nothing in the development and issuance of the permit ensures that the plans reduce pollutants to any degree, let alone to the “maximum extent practicable.” 33 U.S.C. §1342(p)(3)(B). DEC claims that this program is in line with the overall regulatory scheme outlined by EPA guidance for what constitutes the “maximum extent practicable,” Municipal Compliance Certification and Annual Report Form” (2010), available at http://www.dec.ny.gov/docs/water_pdf/ms4anrpt.pdf [hereinafter “Annual Report”] 97 DEC, SPDES General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems, Chpt. 2 (2010) available at http://www.dec.ny.gov/docs/water_pdf/ms4gp2011.pdf 98 Id. 99 See Notice of Intent; Annual Report 100 Id. 32 asserting that any individual permit review would be unworkable. 101 However, other States have shown that it is indeed feasible to perform a more robust review of permittee-developed plans. Many jurisdictions require the state environmental agency to review and approve the substance of a permittee’s plan prior to granting authorization, including a fully studied SWMP, rather than relying on an ex-post review of potential violations or random audits of existing permittees. Under Texas’ permit, for example, the submission of both a full SWMP as part of the initial application is required in addition to any portions of the NOI. 102 The state is also required to review these materials for “consistency with the general permit,” and may notify the permittee of potential deficiencies and how to possibly correct them. 103 Mississippi likewise requires the submission of a SWMP with the NOI, which the state substantively reviews, both for the initial and re-coverage applications. 104 This degree of review more effectively ensures that the details of the plan are sufficient under the permit. 101 Brief for Respondent at 57, Division, Natural Res. Def. Council, Inc. v. New York State Dep't of Envtl. Conservation, 994 N.Y.S.2d 125 (App. Div. 2014) 102 Tex. Comm. Env. Quality, General Permit to Discharge Under the Texas Pollutant Discharge Elimination System,” § II.E.1 (2013) available at https://www.tceq.texas.gov/assets/public/permitting/stormwater/txr040000_issued_permit.pdf [hereinafter Texas Permit] 103 Texas Permit §§ II.E.1-3. 104 Miss. Dept. Envt’l Quality, Separate Storm Sewer System (MS4) General Permit, Condition S-1. (2009) available at http://www.deq.state.ms.us/mdeq.nsf/pdf/epd_MS4PhaseIIStormWater GeneralPermit/$File/22General.pdf?OpenElement [hereinafter Mississippi Permit]. 33 Other states, while not requiring a full SWMP to be included with the initial coverage application, provide for a significant opportunity for substantive examination of the permit provisions by eliciting a more detailed NOI. In Colorado’s permit, for example, there is a direct requirement that the NOI contain information sufficient “for the Division to determine the permittee’s general strategy for complying” with the required items under the permit, including the details of the various permit provisions they sought to enforce. 105 Even though there is no requirement for the submission of a full SWMP in the initial application, the addition information and substantive review process feasibly allow for greater government oversight. In each of these states, agency review creates a greater degree of oversight that can ensure that MS4s reduce their pollutant discharges to the maximum extent practicable. More formalized review by the enforcing agency specifically guarantees the legally required oversight, unlike the selective random enforcement provisions of an audit process. Contrary to DEC’s claims, substantive review of permittee-developed plans prior to granting authorization to discharge has been shown to be a reasonable and practicable means of ensuring compliance with the CWA and well within the administrative capabilities of state government agencies. 105 Colo. Dept. Pub. Health and Envt., CDPS General Permit: Stormwater Discharges Associated with Small Municipal Separate Storm Sewer Systems, § I.A.5(c) (2008) available at https://www.colorado.gov/pacific/sites/default/files/WQ%20COR090000%20PERMIT.pdf. 34 C. Providing an Opportunity For Public Hearings And Comments On MS4s’ Pollution Control Plans Is Practicable and Allows the Public to Identify and Propose Solutions to Potential Problems Other states provide meaningful public participation as an important part of ensuring that MS4 regimes adequately protect the waterbodies of those States, showing that it would be practicable for New York to offer similar opportunities. For example, the permit in Texas provides an example of a process that requires greater public participation than is available in New York. First, the Texas permit provides the opportunity for the public to submit comments to the state permitting agency on both the NOI and the SWMP. 106 These comments specifically provide the public with the opportunity to “detail[] how the NOI or SWMP for the small MS4 fails to meet the technical requirements or conditions of this general permit.” 107 Moreover, the public may request a public meeting in front of the state permitting agency. 108 That public meeting will be held if the Texas Commission on Environmental Quality (“TCEQ”) determines that there is significant public interest. 109 The public meeting must be held in a county where the small MS4 is located and TCEQ staff will facilitate the meeting. 110 Only “after considering public comment” will the state permitting agency “either approve, approve with 106 Texas Permit § II.E.12(d)-(e). 107 Texas Permit § II.E.12(e). 108 Texas Permit § II.E.12(f). 109 Id. 110 Id. 35 conditions, or deny the NOI based on whether the NOI and SWMP meet the requirements of this general permit.” 111 Maine provides another example of the practicability of notice and comment requirements. In Maine the Department of Environmental Protection must make information available on the Internet sufficient to effectuate public notice as well as provide a comment period, lasting a minimum of 20 days, allowing the public to comment on both the NOI and the SWMP. 112 This comment period is for comments to the state permitting-agency, the Maine Department of Environmental Protection, not for comments to the individual permittee, which is the only option available in New York. 113 Based on the review of the NOI, SWMP, or “other information,” presumably including public comment, “the Department may extend the public comment period, require additional information or may deny coverage under this permit and require submission of an application for an individual or alternative MEPDES permit.” 114 The Middle Rio Grande Watershed Based Municipal Separate Storm Sewer Permit includes provisions allowing, “any interested person” to provide comments or request a public hearing on an NOI before the permitting authority, in the case 111 Texas Permit § II.E.12(i). 112 Maine Depart. of Envt’l Prot., General Permit for the Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems, § III.E.2 (b) (2013), available at http://www.maine.gov/dep/land/stormwater/ms4/2013_Municipal_MS4_GP.pdf [hereinafter Maine Permit]. 113 Id. 114 Id. 36 of that permit, EPA. 115 Moreover, “if a significant amount of public interest is evident” the EPA will hold a public hearing after receiving a request. EPA may also at its discretion hold a hearing or informal meeting “to clarify issues related to the NOI submittal.” 116 EPA will “take all comments” expressed directly through either the comment or hearing processes “into consideration in determining whether or not the MS4 that submitted the NOI is appropriately covered.” 117 These provisions demonstrate that it is feasible for a state permitting-agency to consider public comments and provide the opportunity for a public hearing on permittee-developed plans and programs. D. Requirements to Monitor Discharges and Their Effects On Receiving Water Bodies Are Both Practicable and Necessary For Effective Pollution Control NYSDEC claims that in-stream and end-of-pipe sampling to monitor water quality would not be feasible and that is why it should be permitted to require only computer modeling and other methods, 118 however, many other states’ permits do require in-stream and end-of-pipe monitoring, demonstrating that it is in fact feasible and practicable. In developing its MS4 Phase II permit, the California State Water Resources Control Board declared that “monitoring and assessment represents a critical component in understanding the link between permit 115 Middle Rio Grande Permit at Appendix E. 116 Id. 117 Id. 118 Brief for Respondent at 68. 37 requirements, the benefits achieved due to those requirements, and the condition of receiving waters.” 119 California’s General Permit prioritizes monitoring for Areas of Special Biological Significance (ASBS), TMDLs, and Clean Water Act Section 303d listed (“impaired”) water bodies. Traditional Small MS4 permittees with a population greater than 50,000 that are not conducting ASBS, TMDL or 303(d) monitoring must choose either the Receiving Water Monitoring program or Special Studies monitoring program. 120 Permittees discharging to an ASBS, assigned a wasteload allocation or identified as a responsible party in a TMDL, or discharging to waterbodies listed as impaired on the 303(d) list are subject to specific monitoring requirements and must consult with the Regional Water Board. 121 The Receiving Water Monitoring program option requires permittees to select one urban/rural interface monitoring site to monitor receiving water quality at an upstream location in an area undergoing development and evaluate changes in receiving water quality over time. The permittee must also select one urban area monitoring site to monitor receiving water quality at a downstream location in an urban area and evaluate changes in receiving water quality over time. Criteria for site selection is specified 119 Cal. State Water Res. Control Bd., “Fact Sheet For NPDES General Permit And Waste Discharge Requirements For Storm Water Discharges From Small Municipal Separate Storm Sewer Systems (Order)”, Order No. 2013-0001-DWQ 4-5 at 30 (2013), available at http://www.waterboards.ca.gov/water_issues/programs/stormwater/docs/phsii2012_5th/fs_final_ sidenote.pdf [hereinafter California Permit Fact Sheet]. 120 Id. at 39. 121 California Permit § E.13. at 63-64. 38 by the permit, as are parameters and protocols for Receiving Water Monitoring. 122 Under the Special Studies program, the permittee must develop and implement a special study monitoring program that evaluates the effectiveness of measures implemented to reduce specific water quality pollutants that are causing or contributing to beneficial use impairment, which is subject to approval by the Regional Board. The program must show the connection between the stormwater program implementation, water quality protection, and pollutant reduction effectiveness. 123 Permittees must prepare reports summarizing baseline data collections and discussing results. The Vermont DEC has also recognized the critical need for water quality monitoring, citing “a rigorous analysis of the requirements and the need for stormwater monitoring data.” 124 Permittees are required to implement, or otherwise fund, a flow and precipitation-monitoring program, subject to approval by the Secretary, in their respective stormwater impaired watersheds. 125 Additionally, the Vermont General Permit requires monitoring that might be needed to find and address illicit discharges 126 and the Agency may require a permittee on a case-by- case basis to undertake water quality monitoring at an individual stormwater discharge point if there is evidence of an unusual discharge or if it is necessary to 122 California Permit § E.13.d.1. at 64-67. 123 California Permit § E.13.d.2. at 68-69. 124 Vermont Permit § IV.C.1.(e)(7)(a) at 15. 125 Vermont Permit § IV.C.1.(e)(7)(a) at 15. 126 Vermont Permit § IV.H.3. at 23. 39 verify the effectiveness of BMPs and other control measures in the permittee’s SWMP. 127 Other states have also demonstrated the feasibility of establishing water quality monitoring requirements. The New Hampshire Draft Small MS4 Permit includes detailed monitoring requirements as part of the permittees’ Illicit Discharge Detection and Elimination (IDDE) program. The Permit requires screening and sampling of every MS4 outfall and interconnection (with a few exclusions) to establish baseline conditions. 128 The Permit then also requires screening to verify removal of illicit discharge and an additional follow-up screening. 129 Further, if the discharge is directly into an impaired water or subject to a waste load allocation in an approved TMDL, samples must be taken at the time of the IDDE sampling and analyzed for the pollutant causing the impairment. 130 The Western Washington General Permit requires selected cities and counties to conduct status and trends monitoring. Permittees can pay a fee to implement Regional Stormwater Monitoring Program or choose to conduct wadeable stream water quality, benthos, habitat, and sediment chemistry monitoring. 131 Permittees must also conduct a long-term effectiveness study, again 127 Vermont Permit § V.A.5. at 35. 128 New Hampshire Permit § 2.3.4.9. 129 New Hampshire Permit § 2.3.4.8. 130 New Hampshire Permit § 4.3.1.ii. 131 Wash. Dept. of Ecology, Western Washington Phase II Municipal Stormwater Permit § S.8.B available at 40 either by paying a fee to implement Regional Stormwater Monitoring Program study, or by conducting stormwater discharge monitoring. 132 The second option requires stormwater discharge monitoring at one to four locations depending on the size of the municipality, and the permit contains extensive detailed requirements for choosing locations and protocols for sampling. 133 Finally, the Middle Rio Grande Permit also includes detailed monitoring requirements, demonstrating that this is possible to implement. 134 Permittees must develop and implement a comprehensive monitoring and assessment program. The program must include wet weather monitoring, sampling waters upstream and downstream for a number of pollutants including TSS, TDS, COD, BOD, DO, oil and grease, E. coli, pH, total Kjeldahl nitrogen, nitrate plus nitrite, dissolved phosphorus, total ammonia plus organic nitrogen, total phosphorus, PCBs and gross alpha. 135 The permit details frequency and protocols for collecting the samples. 136 The permittee must also conduct dry weather monitoring, screening for a number of pollutants as well as any pollutant that has been identified as the cause http://www.ecy.wa.gov/programs/wq/stormwater/municipal/phaseIIww/5YR/2014mod/WWAPh aseII-Permit-2014Final.pdf [hereinafter Western Washington Permit]. 132 Western Washington Permit § S.8.C. 133 Western Washington Phase II Municipal Stormwater Permit Appendix 9 at 48, available at http://www.ecy.wa.gov/programs/wq/stormwater/municipal/phaseIIww/5YR/2014mod/WWAPh aseII-App9.pdf. 134 Middle Rio Grande Permit § III.A. 135 Middle Rio Grande Permit § III.A.1. 136 Id. 41 of impairment to the water body receiving discharged from the MS4. 137 Monitoring for floatable material must be conducted at least twice a year, 138 and one class of permittees must additionally monitor discharges from certain industrial facilities in their jurisdiction. 139 There are thus numerous examples of provisions in other states’ permits requiring water quality monitoring. This demonstrates the practicability of requiring such monitoring to obtain the information to effectively combat stormwater pollution. CONCLUSION As demonstrated by the numerous robust provisions offered by other states, New York’s promulgated general permit for Municipal Separate Storm Sewer Systems fails to provide legally sufficient protections from the profound negative impacts of excessive stormwater runoff. Those aspects of other states’ permits have already been shown to be practical and plausible protections, well within DEC’s overall regulatory power and administrative capabilities. By providing an effective permit complete with fixed goals for pollution reduction, meaningful pre- coverage review, sufficient public notice and comment, and oversight and 137 Middle Rio Grande Permit § III.A.2. 138 Middle Rio Grande Permit § III.A.3. 139 Middle Rio Grande Permit § III.A.4. 42 monitoring requirements, DEC could provide one more protection for non- renewable resources vital for the continued economic and social vitality of the state. For all the above reasons, Amicus respectfully urges this Court to reverse the Decision and Order of the Appellate Division, Second Department. Respectfully submitted, Susan J. Kraham, Esq. Counsel for Amicus Curiae February 24, 2015 APL-2015-00043 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. CERTIFICATE OF SERVICE I, SUSAN J. KRAHAM, an attorney at law duly admitted to practice in the Courts of this State, swears and affirms under penalty of perjury that: 1. On April 1, 2015, on behalf of proposed Amicus Curiae Citizen’s Campaign for the Environment, I caused three copies of the within amicus brief to be served on those persons listed below: Lawrence M. Levine Rebecca J. Hammer Natural Resources Defense Council, Inc. 40 West 20th Street New York, New York 10011 Telephone: (212) 727-2700 Facsimile: (212) 727-1773 Reed W. Super Super Law Group, LLC 411 State Street, #2R Brooklyn, New York 11217 Telephone: (212) 242-2273 Facsimile: (855) 242-7956 Attorneys for Petitioner- Appellants Bethany A. Davis Noll Assistant Solicitor General 120 Broadway New York, New York 10271 Telephone: 212-416-6184/6312 Facsimile: 212-416-8962 Attorney for Respondent- Defendant Under penalty of perjury, I swear and affirm that the foregoing is true to the best of my knowledge. Susan J. Kraham April 1, 2015