Riverkeeper v. New York Department of Environmental Protection

No. QDS:52313162 (N.Y. Sup. Ct. May 26, 2000)

ELR Digest

The court enjoins New York City's environmental agency from implementing a September 18, 1998, memorandum allowing slopes that are greater than 15% but less than 20% to be modified to 15% or flatter through the use of fill in order to meet the city's slope requirements for subsurface septic systems. The court first holds that the environmental groups challenging the agency's actions lack standing to bring a City Administrative Procedure Act (CAPA) claim against the city. The groups allege that the modification of slope to meet the 15% requirement may result in an increase of septic system failure, thereby degrading the quality of drinking water and that the slope modification may also degrade the watershed's environment. However, there is no evidence of harm sufficient to trigger CAPA's procedural protections. The court next holds that the agency's memorandum is contrary to the provisions of the city's watershed regulations. The agency memorandum announced new provisions whereby a landowner could install new septic systems within the watershed. These provisions do not have corresponding language in the applicable regulations. The court then holds that the agency memorandum is subject to New York State Environmental Quality Review Act (SEQRA) review. The agency's decision to permit slopes greater than 15% but no greater than 20% to be modified to reach the 15% maximum may have a significant effect on the environment so as to trigger the provisions of SEQRA. Further, the memorandum includes provisions not found in the applicable regulations so as to constitute agency planning and policymaking that may affect the environment, and commits the agency to a definite course of decisionmaking in the future. Moreover, the agency memorandum is precisely the type of environment policymaking that, pursuant to SEQRA, requires full environmental study and opportunity for public feedback given the potential effects of the agency's memorandum on the quality of the water supply and the environment within the watershed area. Therefore, the agency is enjoined from implementing the memorandum until it complies with SEQRA.

The full text of this decision is available from ELR (11 pp., ELR Order No. L-239).

[Counsel not available at this printing.]

[30 ELR 20661]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]