In a rare 4-3 split, the New York Court of Appeals upheld the general permit issued by the New York State Department of Environmental Conservation (“DEC”) in 2010 for discharges from municipal separate storm sewer systems that serve a population under 100,000 throughout New York State (small Ms4s). At issue was the claim of the petitioners, Natural Resource Defense Council and seven other environmental advocacy groups, that the general permitting scheme was an “impermissible self-regulatory system” because it allows the small MS4s to gain coverage under the 2010 General Permit based upon the filing of a Notice of Intent (NOI) with the DEC that is reviewed only for completeness and not subject to an opportunity for public hearing.

The court rejected NRDC’s claims, affirming the decision of the intermediate appellate court that upheld the 2010 General Permit, which is structured in a similar manner to other DEC-issued general permits under the federal Clean Water Act (CWA). The majority showed a clear understanding of general permits and the clear authorization for their use under the CWA and New York’s Environmental Conservation Law as a way to regulate municipal stormwater discharges on a system wide basis. The court held that there was “no doubt” that the 2010 General Permit complies with EPA’s 1999 regulations, which allow permitting authorities to authorize small MS4s to discharge stormwater under a general NPDES permit upon receipt of an NOI – i.e., any regulatory review, public notice and comment or opportunity for a public hearing.” The court went on to note that DEC’s General Permit afforded “more generous regulatory review and public participation” than required under the EPA rule. The majority clearly understood that the “permit” subject to notice and comment in this context was the general permit, and that the NOI is simply a declaration by an applicant that they seek coverage (with the accompanying benefits and requirements) under the General Permit.

The majority observed that NRDC’s position — adopted by the dissent — was that EPA’s 1999 regulation constituted, itself, “an impermissible self-regulatory system” under the federal CWA. The court refused to wade into the federal thicket, stating, after a discussion of the relevant federal case law indicating a circuit split over the issue, that “[t]he federal courts and EPA will have to sort this out.” The New York court found it sufficient that the DEC General Permit complied with the 1999 EPA federal rule and to reject “NRDC’s attempt to litigate an underlying dispute with EPA by ordering relief against DEC for complying with EPA’s regulations.”

For the time being at least, this decision from New York’s highest court will provide welcome certainty over the ability of the agency to manage its CWA permitting docket through the use of general permits where appropriate and authorized by federal and state law.