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