Legal History and the Fight to Save the Esopus

When two years of talks with state and city officials failed in 2001, Riverkeeper, Catskill Mountains Chapter of Trout Unlimited, Theodore Gordon Flyfishers, and other environmental groups filed a federal Clean Water Act citizen suit against New York City. The central issue in the case was whether or not New York City needed a Clean Water Act permit to operate the Shandaken Tunnel. Represented by students and staff at the Pace Environmental Litigation Clinic, Riverkeeper argued that the unpermitted discharge of mud and turbidity from the Shandaken Tunnel into Esopus Creek violated the Clean Water Act. The city claimed that no permit was required since it was transferring already polluted water from the Schoharie into the Esopus as part of its management of a municipal water supply system, and the discharges did not represent an “addition” of a pollutant under the Clean Water Act. The district court sided with the city and dismissed the case.

But the Second Circuit Court of Appeals reversed the district court’s decision, holding that the transfer of polluted water from one body of water to another required a Clean Water Act permit. After remanding to the lower court for a trial to determine penalties, the district court levied one of the highest Clean Water Act penalties against a municipality, fining the city $5.7 million.

• NEW YORK CITY APPEALS RULING

  Despite the Second Circuit’s ruling, the city appealed the $5.7 million judgment. Fortunately, the Second Circuit did not buy New York City’s “warmed up” arguments and upheld its prior ruling. The city then petitioned the U.S. Supreme Court to hear the case, but the petition was denied, effectively ending the federal litigation.

  In a stunning victory for Riverkeeper and partners, the Court of Appeals ruled that New York City had polluted Esopus Creek in violation of the Clean Water Act. The decision stated that the City must obtain a state Clean Water Act permit for its Shandaken Tunnel discharge. During the state administrative permit process, Riverkeeper argued that the draft permit was illegal because it included numerous exemptions which allowed for violations of state water quality standards. The state Department of Environmental Conservation rejected Riverkeeper’s claims and issued the draft permit. Riverkeeper then sued the DEC and, in August 2008, the Supreme Court, Ulster County, sided with Riverkeeper, finding that the permit illegally allowed for exemptions and needed to be re-drafted to uphold state water quality standards.

• POSSIBLE LOOPHOLE?

  Despite this decision, the EPA issued a proposed rule to exempt these types of water transfers from permit requirements, in effect, attempting to overturn the legal decisions previously won by Riverkeeper. Riverkeeper submitted extensive comments on the proposed rule in the summer of 2006. This past summer, the EPA finalized its new regulations exempting water transfers from permit requirements. New York State, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, the Canadian province of Manitoba, and a dozen environmental groups, including Riverkeeper, are now suing the EPA to have the courts invalidate EPA’s new regulations and declare the polluted water transfer loophole illegal.

• PROBLEMS STILL EXIST

  While this latest ruling signals yet another important victory in the fight to protect the watershed, mud continues to flow from the Shandaken Tunnel into the Esopus Creek. Fishermen continue to avoid wading in the muddy waters and the trout population continues to suffer. Environmental groups have long advocated for the construction of a multi-level intake structure in the Schoharie Reservoir that would help reduce the turbidity in the water traveling through the Shandaken Tunnel into Esopus Creek. Every other NYC reservoir that is hooked up to a tunnel or aqueduct has a multi-level intake structure, with the glaring exception of the Schoharie. While the city claims the cost of a multi-level intake structure is too great, reducing turbidity in the city’s drinking water and returning a once great rainbow trout stream to its former glory are well worth the cost.