Campaigns & Cases > Safeguard Drinking Water > Enforcement and Compliance > Esopus Creek > Legal History and the Fight to Save the Esopus

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.




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