Storm Water Management

Kadir van Lohuizen / NOOR for New York Times Climate change / sea-level rise in Fiji The shoreline of Vunidoloa is heavily eroded due to the rising waters. Vunidoloa is situated on the Natewa Bay on Viti Levu, Fiji's main island. Vunidoloa has 140 inhabitants and frequently floods due to the rising waters. The situ ation became so precarious that the government decided to relocate the village. Unfortunately the site was poorly designed and is eroding before anyone moved there.

Asharoken, N.Y. January 10, 2017 — Swayed by public opinion, the Incorporated Village of Asharoken (“Asharoken”) opted out of a federal beach nourishment plan implemented by the Army Corp of Engineers (“ACOE”) in order to prevent the general public from accessing the Villages’ private beaches.

Asharoken is a narrow isthmus connecting the Village of Northport on the ‘mainland’ of Long Island with the hamlet of Eatons Neck, which is part of an unincorporated area located in the Town of Huntington. Asharoken is bordered by Huntington Bay, Northport Bay, and Eatons Neck. The eastern coast of Asharoken fronts along the Long Island Sound.

Asharoken Avenue, the village’s main road, is the only land evacuation route for village residents and about 1,400 non-village residents of Eatons Neck.  Without this land bridge, Eaton’s Neck and Asharoken would both be cut off from the mainland.

Asharoken experiences moderate to severe beach erosion on the areas fronting the Long Island Sound. This erosion is caused by storm-induced waves and wave run-up from hurricanes and nor’easters. The village has experienced damages from multiple storm events, most recently Hurricane Sandy in October 2012.

In spite of the known safety risks of their precarious evacuation route, the Asharoken Board of Trustees passed a resolution last Tuesday, effectively opposing a $20 million dune restoration project because of the federal government’s mandate for public access to the beaches when taxpayer dollars are utilized. In order to receive funds for the beach nourishment project, Asharoken would be required to add five public walkways to access the beach and five public parking areas at half-mile intervals along the project’s 2.4-mile stretch along Asharoken Avenue.

Despite a history of rising sea levels, the Asharoken Trustees capitulated to resident outcry over the potential loss of their private beach rights rather than balance their decision on the public health, safety and welfare of the Village and Town residents.

Only time will tell if this game of Russian roulette ends well.

 

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 On May 5, 2015, the New York Court of Appeals upheld a 2010 general permit issued by the New York State Department of Environmental Conservation (NYSDEC) for municipal separate storm sewer systems (known as MS4s).  The case,  In The Matter of Natural Resources Defense Council, Inc. v NYSDEC, 2015 NY Slip Op 03766, pitted several environmental organizations led by the Natural Resources Defense Council, Inc. (NRDC) against the NYSDEC. The 2010 general permit (a 5-year permit) applies to systems that serve municipalities with populations less than 100,000.  There are approximately 500 municipal systems in New York State that fall within this category.

NRDC argued that the general permit violates the federal Clean Water Act because it fails to ensure that these small municipalities reduce their pollutant discharges to the “maximum extent practicable.” NRDC also argued that the general permit is a self-regulatory system that fails to provide for adequate review and oversight by the NYSDEC to confirm compliance with the general permit and fails to provide an opportunity for a public hearing on a municipality’s plan to control storm water discharge.

The NYSDEC countered by contending that the general permit requires covered municipalities to develop, document and implement a storm water management plan (SWMP) that includes 44 mandatory best practices grouped into six categories of control measures.  The general permit also requires these municipalities to compile maps that show locations of all outfalls and field-verify them. The municipalities also have to develop procedures to identify areas of greatest concern, identify and eliminate illicit discharges, and document their implementation of their SWMP.  NYSDEC also argued that the general permit requires the municipality to commit to each mandated, and any optional best management practice, in its  SWMP.  Furthermore, the municipality must file a 19-page Notice of Intent (NOI) to be covered by the general permit, which is reviewed for completeness by the NYSDEC and is made available for a 28-day public comment period.

The Court of Appeals, in a 4-3 split decision, sided with the NYSDEC and all of the municipalities subject to the general permit.  The majority found that the NYSDEC review of the NOI is a sufficient technical regulatory review and that the public has an adequate opportunity to review and comment on the SWMP and NOI.  The majority determined that it would not second-guess the experience and expertise of the NYSDEC in administering the MS4 program under the applicable statutes and regulations.

The 2010 general permit expired on April 30, 2015.  Since the case was still pending at the time, the NYSDEC enacted a 2-year interim general permit in April 2015, which became effective on May 1, 2015.  That interim permit made no substantive changes to the MS4 program and none are expected in the near future, given the NYSDEC’s victory at the Court of Appeals.

 

 imagesTIZO8UVJOn March 24, 2015, the New York Court of Appeals heard oral argument on a case challenging how municipal separate storm sewer systems (known as MS4s) are regulated by the New York State Department of Environmental Conservation (NYSDEC). The Court of Appeals will decide whether the federal Clean Water Act (CWA) is violated by the NYSDEC’s issuance of a general permit governing discharges from MS4s.  If the Court of Appeals affirms the appellate court decision, (Natural Resources Defense Council, Inc. v NYSDEC, 120 AD3d 1235 [2d Dept 2014]), small municipalities throughout New York and the NYSDEC will breathe a sigh of relief.  On the other hand, if the Court of Appeals reverses, and agrees with the trial court, (Natural Resources Defense Council, Inc. v NYSDEC, 35 Misc3d 652 [Sup. Ct. Westchester Co. 2012]), the impact to the NYSDEC, local governments and taxpayers will be significant.

The CWA  prohibits discharges of water pollution from point sources into surface waters except in compliance with either a national pollutant discharge elimination system (NPDES) permit, issued by the U.S. Environmental Protection Agency (USEPA) or a state pollutant discharge elimination system (SPDES) permit issued by a USEPA-authorized state agency.  The NYSDEC is an USEPA-authorized state agency.

There are two types of NPDES/SPDES permits authorized by the CWA, individual permits (facility specific) and general permits (covering regional or categories of facilities).   The NYSDEC issued a general permit for storm water discharges from certain MS4s (the “General Permit”).  Approximately 500 small municipalities are covered by this General Permit.

The Natural Resources Defense Council, Inc., (NRDC) and others sued the NYSDEC contending that the General Permit violates the CWA because it fails to ensure that these small municipalities reduce their pollutant discharges to the “maximum extent practicable.”  The trial court agreed with the NRDC.  The Second Department reversed. In 2013, it found that the General Permit did not violate the CWA.  In 2014, on re-argument, the Appellate Division essentially confirmed its 2013 ruling.

The Second Department determined that the term “maximum extent practicable” was deliberately left undefined by the USEPA to allow maximum flexibility in MS4 permitting on a location-by-location basis.  The appellate court noted that the USEPA outlined various minimum control measures for small MS4s to achieve the maximum extent practicable standard. It found that the General Permit was consistent with the USEPA general permit criteria and was designed to meet the maximum extent practicable standard as it required covered municipalities to develop, implement, and enforce a storm water management plan aimed at reducing the discharge of pollutants.  The plan had to identify and describe the selected best management practices and include measurable goals for each such practice.

The Second Department rejected the NRDC’s argument that the General Permit created a self-regulatory system that failed to ensure compliance with the CWA.  In the appellate court’s view, the following factors ensured compliance with the CWA: (1) the General Permit required a municipality to submit a complete and accurate notice of intent; (2) the NYSDEC could refuse to accept a notice of intent that failed to comply with the maximum extent practicable standard; (3)  a public comment period of at least 28 days needed to be provided; and (4) the NYSDEC had the legal  authority to enforce compliance with the CWA if it determined that an MS4 failed to implement its storm water management plan or otherwise failed to comply with the requirements of the General Permit.

The New York Court of Appeals should issue its decision in the next few months.