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New York, City of v. Anglebrook Ltd. Partnership

ELR Citation: 26 ELR 20126
Nos. No. 94 Civ. 7215 (BDP), 891 F. Supp. 908/40 ERC 1821/(S.D.N.Y., 04/14/1995) sufficiency of stormwater plan

The court holds that a plaintiff city challenging the sufficiency of a developer's stormwater pollution prevention plan (SWPPP) under the state pollution discharge elimination system general permit failed to prove that the SWPPP's stormwater runoff and erosion control measures violate the general permit and that stormwater discharged during and after construction of a golf course would cause or contribute to violations of water quality standards. Reviewing the general permit SWPPP requirements, the court notes that the permit's guidelines are intended to be flexible rules that require applicants to exercise good engineering practices informed by professional judgment and common sense. Addressing whether the developer exercised professional design judgment within the parameters of the guidelines, the court finds that (1) the SWPPP contains sufficient information to allow an evaluation of whether it complies with the general permit; (2) the SWPPP includes adequate erosion control measures; (3) the use of sod is a suitable erosion control method; (4) the planned stormwater diversions are properly located to function as a suitable erosion control method; (5) the SWPPP's silt fence design does not violate the permit guidelines; (6) the SWPPP includes properly designed stormwater management controls; (7) the SWPPP adequately protects against thermal pollution from stormwater; and (8) the SWPPP contains adequate inspection and monitoring provisions. The court holds that the city failed to establish that the overall amount of phosphorous and, consequently, the amount of algal bloom would increase due to increased stormwater runoff from the site in violation of the general permit. The court also holds that the city failed to establish that the developer's pesticide use on the golf course would add to the discharge of large quantities of pollutants into on-site streams during storms. The developer has sufficiently guarded the watershed from deterioration with detailed structural and backup measures, buttressed by monitoring and inspection to ensure compliance. Finally, the court holds that the city failed to prove that any deficiencies in the SWPPP would cause irreparable harm to the city's reservoirs or its drinking water that might warrant injunctive relief.

[A previous decision in this litigation is published at 26 ELR 20122.]

Counsel for Plaintiff
Philip M. Bein
New York City Law Department
Office of the Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303

Counsel for Defendants
Henry M. Hocherman
Shamberg, Marwell, Cherneff, Hocherman, Davis & Hollis
55 Smith Ave., Mt. Kisco NY 10549
(914) 666-5600