supreme court of the state of new york county of … · for judgment pursuant to article 78 of the...

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY ---------------------------------------------------------------------------X In the Matter of the Application of RIVERKEEPER, INC., WATERKEEPER ALLIANCE, INC., CITIZENS CAMPAIGN FOR THE ENVIRONMENT, INC., SIERRA CLUB ATLANTIC CHAPTER, BUFFALO NIAGARA RIVERKEEPER, INC., LOWER SUSQUEHANNA RIVERKEEPER, INC., and THEODORE GORDON FLYFISHERS, INC., Petitioners/Plaintiffs, for Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules, Declaratory Judgment, and Injunctive Relief, -against- JOE MARTENS, in his capacity as the Commissioner of the New York State Department of Environmental Conservation, and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondents/Defendants. ---------------------------------------------------------------------------X

VERIFIED PETITION AND COMPLAINT Index No. _______________ Oral Argument Requested

Petitioners/Plaintiffs Riverkeeper, Inc., Waterkeeper Alliance, Inc., Citizens Campaign

for the Environment, Inc., Sierra Club Atlantic Chapter, Buffalo Niagara Riverkeeper, Inc.,

Lower Susquehanna Riverkeeper, Inc, and Theodore Gordon Flyfishers, Inc. (collectively,

“Petitioners”), for their verified petition for judgment pursuant to Article 78 of the New York

Civil Practice Law and Rules (“CPLR”) and their complaint seeking a declaratory judgment

pursuant to section 3001 of the CPLR, by their attorneys, allege as follows:

PRELIMINARY STATEMENT

1. Petitioners challenge the actions and determinations of Respondents/Defendants

New York State Department of Environmental Conservation (“NYSDEC”) and its

Commissioner, Joe Martens, (collectively, the “Respondents”) to categorically remove

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regulatory environmental protections for an what NYSDEC estimates to be 357 concentrated

animal feeding operations (“CAFOs”).

2. CAFOs are “large-scale industrial” animal feeding operations (“AFOs”), or

“agricultural enterprises where animals are kept and raised in confinement.” Waterkeeper

Alliance, Inc. v. U.S. EPA., 399 F.3d 486, 492 (2d Cir. 2005); 40 CFR § 122.23(b)(1) (2013).

Under federal law, dairy AFOs are considered “Medium CAFOs” when they confine between

200 and 699 mature cows and discharge pollutants. 40 CFR § 122.23(b)(6)(i). Before its

Rulemaking challenged in this proceeding, NYSDEC understood Medium CAFOs to include

both discharging and non-discharging AFOs with between 200 and 699 mature cows.

3. Dairy CAFOs in New York generate millions of tons of wet manure every year,

which manure, if improperly managed, poses substantial risks to public health and the

environment. Waterkeeper Alliance, Inc., 399 F.3d at 494. Animal waste contains a number of

potentially harmful pollutants including: (1) nutrients such as nitrogen and phosphorus; (2)

organic matter; (3) solids, including the manure itself and other elements mixed with it such as

spilled feed, bedding and litter materials, hair, feathers and animal corpses; and (4) pathogens

(disease-causing organisms such as bacteria and viruses). Id. at 494. Nutrient pollution from

excess phosphorous and nitrogen can cause eutrophication of waterbodies, or significant

increases in algae, which harms water quality, food resources and habitats, and decreases the

oxygen that fish and other aquatic life need to survive. The U.S. Environmental Protection

Agency (“U.S. EPA”) recently found that 28 percent of the nation’s rivers and streams have

excessive levels of nitrogen, and 40 percent have high levels of phosphorus. Ex. 7 to the

accompanying Affirmation of Daniel E. Estrin dated July 25, 2013 (“Estrin Aff.”),1 U.S. EPA,

1 Hereinafter, all references to exhibits shall be denoted “Ex. #,” and shall refer to exhibits to the Estrin Aff.

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OFF. OF WETLANDS, OCEANS AND WATERSHEDS, OFF. OF RESEARCH AND DEV., NATIONAL

RIVERS AND STREAMS ASSESSMENT: 2008-2009, 30-31 (2013).

4. Pollutants from CAFOs can infiltrate surface waters in a variety of ways including

spills, other dry-weather discharges, and overflows from storage ‘‘lagoons.” Perhaps the most

common way by which pollutants reach the surface waters is through improper ‘‘land

application.” 399 F.3d at 494. Land application, the predominant means by which CAFOs

dispose of animal waste, is a process by which manure, litter, and other process wastewaters are

spread onto fields controlled by CAFOs. Id. U.S. EPA has estimated that 90 percent of CAFO-

generated waste is land applied. Id. at 493 n.10.

5. Some CAFOs accept food processing waste, such as acid whey – a liquid by-

product of yogurt production, which they dispose of, in exchange for tipping fees, by applying it

to their land in addition in addition to manure. Ex. 5, Affidavit of William J. Weida dated July

18, 2013, at ¶¶ 8-10 (“ Weida Aff.”); Ex. 4, Affidavit of Michael D. Smolen dated July 23,

2013, at ¶ 32 (“Smolen Aff.”). Acid whey, like manure, contains nutrients and bacteria. It also

has high levels of chloride and Biological Oxygen Demand, which can be devastating to fish if it

enters surface water. Ex. 5, Weida Aff., at ¶¶ 8-10; Ex. 4., Smolen Aff., at ¶ 32. When waste is

excessively or improperly land-applied, the nutrients contained in the waste become pollutants

that can and often do run off into adjacent waterways or leach into soil and groundwater. See

Waterkeeper, 399 F.3d at 494.

6. NYSDEC has developed a dual permitting system for CAFOs to prevent adverse

water quality impacts. CAFOs that have confirmed discharges of pollutants to waters of the

State must obtain coverage under State Pollutant Discharge Elimination System (“SPDES”)

General Permit GP-04-02. CAFOs that claim to be “non-discharging” must obtain coverage

under SPDES General Permit GP-0-09-001. Both permits require CAFO operators to implement

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controls to prevent pollutant discharges, including implementation of a comprehensive nutrient

management plan (“CNMP”). A CNMP is prepared by an Agricultural Environmental

Management certified planner, and contains a set of farm-specific “best management practices”

necessary to ensure proper waste storage and the rate, location, timing, and method of nutrient

application to agricultural fields to provide for crop growth while protecting water quality.

7. On August 15, 2012, Governor Andrew Cuomo convened the “New York State

Yogurt Summit,” at which New York State Department of Agriculture and Markets

Commissioner Darrell Aubertine announced, prior to NYSDEC initiating State Environmental

Quality Review Act (“SEQRA”) review for such an action, that the state was “immediately

increasing the animal threshold required for the CAFO permit from 200 to 300.” Ex. 9, Karen

DeWitt, “Cuomo Makes a Moo-ve for More Cows at ‘Yogurt Summit,’” WNYC NEWS (Aug. 15,

2012) (“DeWitt Article”). Less than a year later, NYSDEC kept the administration’s promise

and completed its CAFO rulemaking, categorically dismantling its existing pollution prevention

scheme for a large number of dairy CAFOs.

8. For purely political and economic purposes—not scientific or technical ones—

NYSDEC has carved out an exemption from SPDES permit requirements for purportedly “non-

discharging” CAFOs with between 200 and 299 mature dairy cows, relieving them from the duty

to develop and implement a CNMP and other previously mandatory pollution controls.

NYSDEC expects 285 farms to grow into the exempted size category in addition to the 72 that

already exist, which would produce over three million pounds of additional wet manure each day

and greatly increase the risk that such additional manure will be improperly managed, stored and

land applied. U.S. EPA Region 9, Animal Waste: What’s the Problem?,

http://www.epa.gov/region9/animalwaste/problem.html (last accessed July 26, 2013).

NYSDEC’s withdrawal of the SPDES permit and CNMP requirements, as well as its changes to

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its solid waste management regulations described below, will, in turn, greatly increase the risk

that manure and food processing wastes will contaminate waters of the State.

9. Not only does the rulemaking seek to promote expansion of the yogurt industry in

New York, the combination of the revisions to 6 NYCRR parts 360 and 750 allow the yogurt

industry to dispose of the acid whey it generates by encouraging deregulated dairy CAFOs to

land apply the whey without a CNMP, regular inspections, or recordkeeping requirements.

10. NYSDEC’s modifications to its CAFO permitting program fly in the face of its

explicit assertion, in its March 2012 and July 2012 submissions to the U.S. EPA in support of the

Watershed Implementation Plan for the New York Susquehanna and Chemung River Basins and

the Chesapeake Bay, that deregulation of medium sized CAFOs would cause significant

degradation to waterbodies:

New York State regulates medium-size CAFOs in the same manner as it regulates large-size CAFOs, in that, medium CAFOs are required to obtain permit coverage. Most other states nationwide regulate medium-size CAFO [sic] under a separate program that is often voluntary in nature. A nonregulatory approach, for a sector that has a significant pollution potential (the smallest medium CAFO has the pollution potential of a major sewage treatment plant), is neither credible nor effective. Professional management of waste at these facilities is critical to protection of water quality. That professional management is ensured by the New York CAFO permit program.

Ex. 10, NYSDEC, DRAFT PHASE II WATERSHED IMPLEMENTATION PLAN FOR NEW YORK

SUSQUEHANNA AND CHEMUNG RIVER BASINS AND CHESAPEAKE BAY TOTAL MAXIMUM DAILY

LOAD, 28 (July 6, 2012) (“DRAFT CHESAPEAKE WIP”) (emphasis added). NYSDEC further

noted in this submission to U.S. EPA that its “CAFO program covers all farms with as few as

200 cows with binding permits” that meet scientifically supported standards and that “anything

less is inconsistent with the Clean Water Act’s ‘best technology’ requirements.” Id. at 19.

11. NYSDEC asserts that its rulemaking aimed to “provide regulatory relief to

encourage expansion in the dairy industry,” with the goal of creating cost savings for CAFOs by

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removing the requirement to implement best management practices. Ex. 3, NYSDEC, SEQRA

FINDINGS STATEMENT 22 (2013) (“FINDINGS STATEMENT”). Yet, NYSDEC also states that it

“believes that existing CAFOs with herd sizes between 200 and 299 and dairy farms that [it

expects to] expand into this category would likely voluntarily institute necessary conservation

practices, despite not being required to do so.” Ex. 2, NYSDEC, FINAL ENVIRONMENTAL

IMPACT STATEMENT [FOR THE] DAIRY INDUSTRY RULEMAKING PROPOSED ACTION STATE

POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) PERMITS FOR CONCENTRATED ANIMAL

FEEDING OPERATIONS (CAFOS) LAND APPLICATION & ANAEROBIC DIGESTERS 51 (Mar. 6, 2013)

(“FEIS”). The concept of removing the regulatory requirement that farms institute what

NYSDEC calls “necessary conservation practices,” based on an unsupported hope or “belief”

that farms will voluntarily implement those necessary practices is utterly irrational.

12. NYSDEC’s illogical reasoning has also created a “no-win” situation: “[i]f

Medium CAFOs manage their waste appropriately, there will be no substantial cost savings

associated with the proposed deregulation.” Ex. 4; Exhibit A to Smolen Aff., at 2, see Ex. 4,

Smolen Aff., at ¶ 15. On the other hand, “[i]f the industry chooses to avoid the costs of

designing and operating proper waste handling, treatment, and storage systems, and land

application, the pollution of the state’s waterbodies will increase. Moreover, if and when the

quality of these waterbodies declines to the level [that] violat[es] their water quality standards,

the permitted entities, [such as municipal wastewater treatment plants,] will be punished with

further effluent restrictions as defined in the TMDL process.” Ex. 4; Exhibit A to Smolen Aff. a

8, see Ex. 4, Smolen Aff., at ¶¶ 15, 33.

13. Petitioners challenge the actions and determinations of the Respondents as set

forth in “Parts 750 and 360 of 6 NYCRR Rulemaking,” noticed in the New York State Register on

May 8, 2013 (“Final Rulemaking”) (Ex. 1); the FEIS (Ex. 2); and the Findings Statement (Ex. 3).

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JURISDICTION AND VENUE

14. Pursuant to CPLR sections 505(a) and 506(b), Petitioners commence this action in

Albany County because the principal offices of the respondents Joe Martens and NYSDEC are

located in Albany County.

15. This court has jurisdiction pursuant to CPLR sections 7803(1-3) because

Respondents’ determination to adopt the regulatory modifications was in excess of their

jurisdiction, constituted errors of law and violations of lawful procedure, and was arbitrary and

capricious. CPLR section 7803(3) authorizes a special proceeding to be brought against a body

or officer whose determination was “made in violation of lawful procedure, was affected by an

error of law or was arbitrary and capricious or an abuse of discretion.” CPLR § 7803(3).

16. The court also has jurisdiction pursuant to CPLR Section 3001 to render

declaratory relief declaring the Rulemaking (to the extent it exempts CAFOs from prior

permitting requirements) illegal, null and void and preempted by State and Federal Law. This

court also has jurisdiction pursuant to CPLR Section 6301 to grant injunctive relief necessary to

implement the relief requested herein.

17. Petitioners’ allegations involve real and actual actions taken by Respondents that

have injured Petitioners and their members, and from which Petitioners have no other remedy at

law. Petitioners are not requesting an advisory opinion, but rather request that the court declare

that Respondents’ actions complained of herein violate the New York State Constitution, the

New York State Environmental Conservation Law (“ECL”), the State Administrative Procedure

Act (“SAPA”), and the Federal Clean Water Act (“CWA”).

THE PARTIES

18. Petitioner-Plaintiff Riverkeeper, Inc. (“Riverkeeper”), is a 501(c)(3) not-for-profit

corporation headquartered at 20 Secor Road, Ossining, New York 10562. Riverkeeper is a

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member-supported watchdog organization with approximately 3,388 active members, many of

whom reside near and/or fish, swim, and recreate in the Hudson River Watershed and the New

York City (“NYC”) Drinking Water Watershed. Riverkeeper is dedicated to defending the

Hudson River and its tributaries and to protecting the drinking water supply of nine million NYC

and Hudson Valley residents. For more than 44 years Riverkeeper has stopped polluters,

championed public enjoyment of the Hudson River and its tributaries, influenced land use

decisions, and restored habitat, benefiting the natural and human communities of the Hudson

River and its watershed. As a signatory to the 1997 NYC Watershed Memorandum of

Agreement, Riverkeeper has a unique public role to ensure that the Agreement succeeds and

special authority to enforce and oversee its implementation, including the success of the

Watershed Agricultural Program, which leverages NYC, state, federal and private funds to

reduce agriculture-related pollution in the NYC Watershed.

19. Petitioner-Plaintiff Waterkeeper Alliance, Inc., is a not-for-profit environmental

organization headquartered at 17 Battery Place, Suite 1329, New York, New York 10004.

Waterkeeper Alliance is global movement of on-the-water advocates who patrol and protect over

100,000 miles of rivers, steams and coastlines in North and South America, Europe, Australia,

Asia, and Africa. The organization seeks to protect every major watershed around the world, and

to restore and maintain all waterways as fishable, swimmable and drinkable waters. To

champion clean water and strong communities, Waterkeeper Alliance (1) supports and empowers

member Waterkeeper organizations to protect communities, ecosystems and water quality; (2)

promotes the member Waterkeeper organizations; and (3) advocates for issues common to

Waterkeeper organizations. Waterkeeper Alliance works towards this vision through the

grassroots advocacy of more than 200 member organizations, including three

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petitioners/plaintiffs in this case (1) Riverkeeper, Inc., (2) Buffalo-Niagara Riverkeeper, and (3)

Lower Susquehanna Riverkeeper.

20. Petitioner/Plaintiff Citizens Campaign for the Environment (“CCE”) is a non-

profit, non-partisan advocacy organization that works to empower communities and to advocate

for solutions that protect public health and the natural environment in New York, Connecticut,

and Washington, D.C. CCE is a membership organization with approximately 65,000 members

based in New York. CCE has worked on issues related to agriculture in New York State for

more than 25 years, and it is committed to working to develop constructive approaches for

promoting farmers and the farming industry in the state while protecting waterbodies and

watersheds. Toward these ends, CCE participated in the development of New York’s

Agricultural Environmental Management (“AEM”) grant program to assist farmers in preventing

water pollution from agricultural activities by providing technical assistance and financial

incentives to farms that choose to participate. CCE also works with NYSDEC on agricultural

issues and has participated in NYSDEC’s CAFO Workgroup for more than fifteen years. CCE’s

goal is to help farms manage their waste responsibly rather than to take legal action after

agricultural pollution has already impaired waterbodies.

21. Petitioner/Plaintiff Sierra Club Atlantic Chapter is a non-profit, volunteer led

environmental organization of 38,000 members statewide dedicated to protecting New York’s

air, land, water and remaining wild places. Its offices are headquartered at 353 Hamilton Street,

Albany, New York. Sierra Club volunteers have long been involved in CAFO issues, assisting

communities and training activists to protect water quality and citizen rights in the context of

unregulated factory farms. In 2005, the Sierra Club Atlantic Chapter, along with Citizens

Environmental Coalition, published the report “The Wasting of Rural New York State: Factory

Farms and Public Health” and followed the publication with a series of workshops. From 2009

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through 2011, the Chapter participated in stakeholder meetings with NYSDEC that resulted in

CAFO permit revisions that demonstrated better water quality controls from farm run-off. Since

July 2012, Chapter representatives have been involved in discussions with NYSDEC and the

Office of the Governor about changes to the CAFO thresholds. In those discussions, the Sierra

Club Atlantic Chapter has consistently taken the position that environmental standards should

not be compromised as a means to boost milk production.

22. Petitioner/Plaintiff Buffalo Niagara Riverkeeper, Inc., is a 501(c)(3) not-for-profit

corporation headquartered at 1250 Niagara Street, Buffalo, New York 14213, in the County of

Erie. Buffalo Niagara Riverkeeper’s mission is to protect water quality and quantity and connect

people to water in Western New York. Buffalo Niagara Riverkeeper serves over 1,200 square

miles of the Niagara River Watershed, including four counties Erie, Niagara, Genesee, and

Wyoming, all of which support multiple land uses, including agricultural. Within the region

Buffalo Niagara Riverkeeper serves, approximately 3,250 miles of waterways support a

multitude of human and natural resource functions, including provision of habitat for native or

naturalized trout species.

23. Petitioner/Plaintiff Lower Susquehanna Riverkeeper is a 501(c)(3) not-for-profit

corporation headquartered at 2098 Long Level Road, Wrightsville, Pennsylvania 17368, in the

County of York. Lower Susquehanna Riverkeeper’s mission includes improving and defending

the Lower Susquehanna River Watershed and its tributaries, and the Chesapeake Bay. Lower

Susquehanna Riverkeeper is a member-supported organization, many of whom reside near

and/or fish, boat, swim, and recreate in the Lower Susquehanna River and its tributaries. Waters

from the main stem of the Susquehanna Watershed in New York drain into the Lower

Susquehanna River and its tributaries in Pennsylvania and Maryland, and the Chesapeake Bay.

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24. Petitioner/Plaintiff Theodore Gordon Flyfishers, Inc. (“TGF”) is a domestic not-

for-profit corporation organized under the laws of the State of New York and based in New York

County in the State of New York. TGF is a conservation and fly-fishing group whose dual

mission is to preserve and enhance the cold-water fisheries of the Catskills and Delaware

regions. TGF focuses on proper stream management, protection of wild trout, and promoting

catch and release practices. Formed in 1962, TGF earned its reputation as an advocate of clean

waters and healthy fisheries in critical legal fights; notably: defeating a pumped storage plan for

Schoharie Creek, which would have destroyed the fishery; protecting the Bashakill wetlands at

the entrance to the Catskills; defeating the proposed dam at Tocks Island; and helping to write

the Wild and Scenic Rivers Law. Members of TGF use and enjoy many waterways in New York

State and other states for a number of activities, including, but not limited to, fishing.

25. Respondent/Defendant Joe Martens is the Commissioner of NYSDEC. His

principal office is located in Albany County.

26. Respondent/Defendant NYSDEC is an agency of the State of New York with the

powers and duties set forth in the New York State Environmental Conservation Law. The

principal office of the Department is located in Albany County.

FACTUAL BACKGROUND

a. Dairy Facilities Create an Enormous Amount of Waste that, Unless Well Managed, Can Cause Significant Harm to Human Health and the Environment.

27. NYSDEC estimates that its Rulemaking would add 25,000 mature cows to New

York’s dairy herd, which would result in more than three million additional pounds of urine and

feces produced each day by dairies in the state, or more than one billion additional pounds of

cow waste produced each year. Ex. 2, FEIS, at 10, 25. The expected corresponding increase in

yogurt production in the state will also result in more yogurt manufacturing byproduct, acid

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whey, some of which is disposed of by spreading on agricultural fields in New York. Ex. 4,

Smolen Aff., at ¶ 32. Discharges of the pollutants contained in animal waste (e.g., pathogens,

phosphorus, nitrogen, and sediment), or those in food processing waste (i.e., phosphorous,

nitrogen, low pH, see id.) may occur due to improper waste storage or land application, see id. at

¶ 12, resulting in significant human health and environmental impacts, as explained supra ¶¶ 2-

5.

28. “The only assurance that these problems are under control is the documentation

and management associated with a valid CAFO permit.” Ex. 4, Smolen Aff., at ¶ 13. Prior to

the adoption of NYSDEC’s Rulemaking, all dairies with over 200 mature dairy cows were

considered CAFOs and required to be permitted, whether or not they discharged to a water of the

State. Id. at ¶ 6. “The CAFO permits ensured the dairy operator was responsible for managing

the facility without discharging animal manure or food waste to New York’s waters by requiring

installation of structural and nonstructural systems for pollution control [including professional

engineering design of animal waste lagoons and stormwater retention systems], operation under

a CNMP developed by a certified planner, annual reporting, and inspections.” Id.

29. Voluntary compliance with permitting standards, as admitted by NYSDEC,

“cannot be relied upon as a mitigation strategy for all [CAFOs].” Ex. 2, FEIS, at 108; Ex. 4,

Smolen Aff., at ¶ 26. Indeed, “[w]ithout the permit and its corresponding design, recordkeeping,

reporting, and inspections, there is likely to be pollutant runoff and discharges from waste

storage areas, animal exercise areas, and other areas in contact with pollutants.” Ex. 4, Smolen

Aff. at ¶ 7; see id. (“[D]ischarges of pollutants [are] certain to occur from time to time unless

there are properly designed and operated structural and nonstructural controls in place.”) Even

NYSDEC admits that when permit requirements are removed, (1) the Department’s ability to

track compliance by CAFOs would be greatly restricted “because there would not be any specific

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permit requirements to monitor;” and (2) there would be no legal obligation to “demonstrate

continued implementation of BMPs. Ex. 2, FEIS, at 117-21.

b. Many Now-Deregulated New York Dairy Facilities Have a History of Discharges and/or Poor Waste Management Practices.

30. Recent NYSDEC and U.S. EPA inspection reports and notices of violation

demonstrate that illegal discharges, permit violations, and non-compliance with CNMPs are the

norm at CAFOs with 200 to 299 dairy cows. Ex. 6, NYSDEC, Selected Inspection Reports and

Notices of Violation see Ex. 19, Comment Letter from Citizens Campaign for the Env’t,

Earthjustice, Env’t N.Y., Envtl. Advocates of N.Y., Riverkeeper, Sierra Club, and Waterkeeper

Alliance, to Robert Simson, Div. of Water, N.Y. State Dep’t of Envtl. Conservation, at apps. C-K

(Jan. 22, 2013) (“Petitioners’ Joint Comments”).2 Of the apparent 75 CAFOs currently within

this size range, 52 percent have not been inspected in the last six years and 74 percent have not

been inspected in the last two years. Of the 36 facilities that have been inspected in the last six

years, 35 facilities have either discharged or failed to implement NYSDEC mandated practices

necessary to prevent discharges. Despite this record of noncompliance, NYSDEC has only

issued Notices of Violations related to these violations at eight of the subject facilities.

31. One typical example, Hendee Homestead Farms, a dairy with between 200 and

300 cows, is located directly between, and within one-half mile of, two Hornell City drinking

water reservoirs. See Ex. 6, NYSDEC, Hendee Homestead CAFO Facility Inspection Report at

2 (Oct. 15, 2008); Ex. 53, Affidavit of Suzanne R. Miller dated July 23, 2013, at ¶ 3 (“Miller

Aff.”). Moreover, the dairy is at a higher elevation than the reservoirs, so any runoff or leaching

of animal waste or other contaminants will discharge to the drinking water supply. See Ex. 6,

Letter from Sam Hendee, Hendee Homestead Farms to Jacqueline Lendrum, Division of Water

2 All inspection reports and notices of violation were submitted to NYSDEC during the public comment period on the DEIS and must be incorporated into the administrative record. A select sample of inspection reports and notices of violation is attached as Exhibit 6.

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Permits RE: Hendee Homestead Farms, app. E at 6 (Oct. 15, 2008). Miller Aff., at ¶ 3. Hendee

Farm reported a serious discharge in 2008, and then in a 2012 inspection, NYSDEC found that

the facility was only in “marginal compliance” with its permit requirements, see Ex. 6, Letter

from Brian K. Lee, Environmental Engineer Division of Water to Sam & Jack Hendee at 1 (Apr.

13, 2012), meaning that it had not remedied the situation that led to the earlier discharge. See id.

REGULATORY HISTORY OF THE DAIRY CAFO DEREGULATION

32. On August 15, 2012, Governor Andrew M. Cuomo convened a “New York State

Yogurt Summit” to hear ideas for ensuring that the yogurt industry continues to grow in the state.

See Ex. 8, Press Release from Governor’s Press Office (Aug. 15, 2012) (“Governor’s press

release”). According to press accounts, the Governor told summit attendees that he wants New

York to become the yogurt capital of the United States. Ex. 9, Freeman Klopott, Cuomo Says

Dairy Industry Can Make New York U.S. Yogurt Capital, Bloomberg Businessweek (Aug. 15,

2012). New York State Department of Agriculture and Markets Commissioner Darrell

Aubertine reportedly announced at the summit that the state was “immediately increasing the

animal threshold required for the CAFO permit from 200 to 300,” thereby exempting dairy farms

within that size category from environmental permitting requirements. Ex. 9, DeWitt Article.

33. On October 10, 2012, NYSDEC posted in its Environmental Notice Bulletin

(“ENB”) a Short Form Environmental Assessment (“EA”) regarding its proposal to “revise its

Part 750 regulation and ECL CAFO general permit [GP-0-09-001] to exempt certain medium

sized CAFO farms (dairy farms between 200-299 mature dairy cows in size) from current CAFO

SPDES permitting requirements,” and also to revise its Part 360 regulations related to disposal of

food processing wastes (and other wastes) by facilities permitted under Part 750. The EA

identified “one or more potentially large or significant adverse impacts which MAY occur,”

insofar as the action “could potentially result in impacts to ground or surface waters” and to “fish

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and aquatic life” due to the fact that some “medium sized CAFO dairy farms would no longer be

required to prepare and implement Comprehensive Nutrient Management [Plans], which could

lead to increased pollutant loading to waters of the state. Ex. 11, NYSDEC, STATE

ENVIRONMENTAL QUALITY REVIEW SHORT ENVIRONMENTAL ASSESSMENT FORM [FOR] CAFO

RULEMAKING AND MODIFICATIONS TO GENERAL PERMIT 1-2 (2012) (emphasis in original); Ex.

11., NYSDEC, ENB, at 1-2 (Oct. 10, 2012).

34. As a result of the EA, NYSDEC issued a Positive Declaration/Determination of

Significance under SEQRA for the proposed regulatory and permit modifications. The Positive

Declaration was posted in the ENB on October 10, 2012. Ex. 11, NYSDEC, ENB (Oct. 10,

2012); see Ex. 12, NYSDEC, STATE ENVIRONMENTAL QUALITY REVIEW POSITIVE

DECLARATION; NOTICE OF INTENT TO PREPARE A DRAFT EIS; DETERMINATION OF SIGNIFICANCE

(Oct. 5, 2012).

35. On December 5, 2012, NYSDEC published in the State Register a Notice of

Proposed Rulemaking to deregulate dairy CAFOs with between 200-299 mature dairy cows. See

Ex. 13, NYSDEC, Proposed Rule Making Hearing(s) Scheduled [to] Amend Provisions of 6

NYCRR Subpart 750-1, 6 NYCRR Subpart 360-4 and 6 NYCRR Subpart 360-5, XXXIV N.Y.

Reg. 4 (Dec. 5, 2012) (“Proposed Rulemaking”). The draft express terms of the regulatory

modifications, which do not appear in the State Register, but which are attached as Ex. 15,

sought to add a new definition of “CAFO” to 6 NYCRR § 750-1.2(a)(21), a section of the

regulations that had previously been reserved. Under the proposed rule, “Large” and “Medium”

CAFOs would have been defined to match the federal animal threshold numbers for CAFOs set

forth in 40 C.F.R. § 122.23(b)(4) and (6). See Ex. 14., NYSDEC, DRAFT ENVIRONMENTAL

IMPACT STATEMENT [FOR THE] DAIRY INDUSTRY RULEMAKING PROPOSED ACTION STATE

POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) PERMITS FOR CONCENTRATED ANIMAL

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FEEDING OPERATIONS (CAFOS) LAND APPLICATION & ANAEROBIC DIGESTERS 20-21 (Dec., 5,

2012) (“DEIS”).

36. Specifically, NYSDEC proposed, “as authorized by federal regulations,” id., that

the animal threshold numbers for a Medium dairy CAFO would be 200 to 699 mature dairy

cows, whether milked or dry. Id. NYSDEC also proposed adding a new section to its SPDES

regulations that would have declared that medium CAFOs with 200-299 mature dairy cows

without a discharge “are not required to get a SPDES permit because for the purposes of [the

Environmental Conservation Law] these CAFOS are not considered a point source.” Ex. 15,

Draft 6 NYCRR § 750-1.5(a) (12).

37. The proposed regulation also sought to amend NYSDEC’s Part 360 solid waste

management regulations in order to, inter alia: (1) exempt anaerobic digesters (“ADs”) from the

Part 360 approval process if located on a CAFO; (2) remove permitting requirements for

facilities with ADs that accept less than 50 tons of food processing waste per day for digestion

and land application; and (3) remove permitting and registration requirements for land

application of fish hatchery waste.

38. On December 5, 2012, NYSDEC posted in the ENB a Notice of Acceptance of

DEIS for the dairy CAFO deregulation, and a notice of public hearing on the DEIS. Ex. 14,

NYSDEC, ENB, at 1 (Dec. 5, 2012); see Ex. 14, DEIS.

39. On December 19, 2012, NYSDEC posted in the ENB its proposed modifications

to the SPDES ECL General Permit for CAFOs (“CAFO General Permit”). Ex. 16, NYSDEC,

ENB, at 2 (Dec. 19, 2012). According to NYSDEC’s notice, the period during which the public

could comment on the DEIS, the proposed rulemaking and/or the modifications to the CAFO

General Permit would expire on January 21, 2013. Id.

17

40. Because the 45-day comment period on the DEIS and proposed rulemaking, and

the 33-day comment period on the proposed permit modifications, spanned three federal

holidays, and due to Petitioners’ engagement in the simultaneous public comment period on

proposed high-volume hydraulic fracturing regulations, on January 2, 2013, Petitioners requested

from NYSDEC a 30-day extension of time for submitting comments. This request was denied

by NYSDEC on January 17, 2013. See Ex. 18, Letter from Petitioners to Robert Simson,

NYSDEC (Jan. 2, 2013); Ex. 18, Letter from Koon Tang, P.E., Director, NYSDEC, to

Petitioners (Jan 17, 2013).

41. On January 4, 2013, NYSDEC held simultaneous public hearings on the proposed

rulemaking and permit modification in Albany, Ray Brook, Syracuse and Avon. Representatives

from Petitioners Riverkeeper and Citizens Campaign for the Environment testified against the

proposals.

42. Petitioners filed two joint legal and technical comment letters on January 22,

2013, because the posted due date, January 21, 2013, fell on the Martin Luther King, Jr., holiday.

The comment letters explain that the proposed rulemaking and proposed modification to the

CAFO General Permit could not be finalized because they were inconsistent with the CWA and

the ECL. Petitioners also detailed the ways in which the DEIS fails to satisfy the requirements of

the State Environmental Quality Review Act (“SEQRA”) and must be modified or supplemented

before the State could proceed with the proposed actions. Similar to concerns expressed by U.S.

EPA a few days earlier (of which Petitioners were not yet aware), See. Ex. 46, Letter from Doug

Pabst, Acting Chief, Clean Water Regulatory Branch, U.S. EPA Region 2, to Robert Simson,

Division of Water, NYSDEC, at 1 (Jan. 17, 20 13) (“Pabst Letter”). Petitioners notified

NYSDEC that the proposed modifications to New York’s regulation of dairy facilities under its

SPDES program constitutes a substantial revision to its federally delegated program, triggering

18

the need for notice, public comment, and U.S. EPA review. Copies of the Petitioners’ Joint

Comments submitted to NYSDEC are attached as Ex. 19.

43. In support of their two sets of legal and technical comments, Petitioners submitted

to NYSDEC the technical and scientific comments presented in Report to Riverkeepers; Analysis

of the Impact of Proposed Changes to New York CAFO Rules, 6 NYCRR parts 360 and 750,

prepared by Lithochimeia, Inc. (Jan. 21, 2013) (Ex. 4, Exhibit A to Smolen Aff.) and A Review of

the December 5, 2012 Draft Environmental Impact Statement, prepared by Dr. William J. Weida,

Emeritus Professor of Economics, The Colorado College (Jan. 19, 2013) (the “Weida Report”)

(Ex. 5, Exhibit A to Weida Aff.).

44. On March 6, 2013, NYSDEC published in the ENB a Notice of Acceptance of

FEIS. Ex. 2, NYSDEC, ENB, at 2 (March 6, 2013). The FEIS ignores many of the substantive

concerns raised by Petitioners in their comments regarding compliance with the ECL, CWA, and

SEQRA.

45. On March 18, 2013, during the public comment period on the FEIS, Petitioners

and other concerned organizations wrote to NYSDEC to reaffirm their position that

modifications of the CAFO General Permit are substantive modifications requiring U.S. EPA

approval. Petitioners also asserted that the revisions to the proposed regulations reflected in the

FEIS and NYSDEC response to public comments are “material” and thus must be published in

the State Register to afford the public opportunity to comment before they can be finalized. See

Ex. 22. Letter from Daniel E. Estrin, Melissa Fortunato, and Kieran McCarthy, to Erica B.

Cruden, P.E., NYSDEC (Mar. 18, 2013).

46. On April 24, 2013, NYSDEC published in the ENB a Notice of Adoption of

Findings regarding the dairy deregulation rulemaking. See Ex. 23, NYSDEC, ENB, at 1-2 (Apr.

24, 2013). The notice stated that the Notice of Adoption of Rules was filed with the New York

19

State Department of State on April 18, 2013. Id. The ENB notice did not include, or link to, the

actual Findings Statement, which is required to be “maintained in files that are readily accessible

to the public and made available on request." 6 NYCRR § 617.12(b)(3).

47. Petitioners repeatedly requested from NYSDEC a copy of the Findings

Statement, and in response, were advised by NYSDEC to submit a Freedom of Information Law

request in order to obtain a copy. While the Findings Statement was signed by the NYCDEC

Commissioner on March 29, 2013, NYSDEC did not provide a copy to Petitioners until April 30,

2013. See Ex. 3, Email from Thomas Berkman, NYSDEC, to Kate Hudson (Apr. 30, 2013 at

5:08 PM). The Findings ignore the substantive issues raised by Petitioners in their comments

regarding, inter alia, NYSDEC’s failure to identify all likely environmental impacts of the

deregulation, to demonstrate a “public need” for the deregulation, to identify realistic mitigation

measures, and to consider a range of reasonable alternatives.

48. Although U.S. EPA had requested information regarding the regulatory revisions

from NYSDEC pursuant to 40 CFR § 123.62, and had not approved the change to New York’s

SPDES program as required by that Federal regulation, NYSDEC published in the State Register

a Notice of Adoption of its final regulatory revisions to Parts 750 and 360 on May 8, 2013. See

Ex 1, NYSDEC, Notice of Adoption [to] Revise 6 NYCRR Subpart 750-1 and 6 NYCRR

Subparts 360-1, 360-4 and 360-5, XXXV N.Y. Reg. 24 (May 8, 2013) (“Final Rulemaking”).

According to NYSDEC’s Notice of Adoption, the changes to the Part 750 Regulations were

effective immediately, i.e., on May 8, 2013, and the changes to the Part 360 regulations were

effective 60 days from May 8, 2013, i.e., on or about July 7, 2013. Id.

49. The final Part 750 regulations are substantially changed from the originally

proposed regulations. See ¶¶ 134-142, infra.

20

50. As of the filing of this Verified Petition, any final revisions to the CAFO general

permit have not been made public and the new final general permit has not been issued by

NYSDEC. Petitioners intend to evaluate the modified final CAFO permit once it is issued, and

will seek to amend this Verified Petition and Complaint to challenge the permit after it is issued

by NYSDEC if any of its terms or conditions violate state or federal law.

51. Upon information and belief, as of the filing of this Verified Petition, U.S. EPA

has still not approved the changes to the New York SPDES program or the proposed

modifications to the CAFO general permit described herein.

52. This hybrid Article 78 proceeding and declaratory judgment action now follows.

FIRST CAUSE OF ACTION: NYSDEC Lacks Authority to Issue Regulations

in Contravention of ECL Article 17

53. Petitioners repeat and re-allege the allegations contained in paragraphs 1-52

above, and incorporate such allegations by reference as if set forth herein.

54. “The legislative power of [New York State is] vested in the senate and assembly,”

not in the governor. N.Y. Const., art. III, § 1. In contrast, the governor and his executive

agencies “shall take care that the laws are faithfully executed.” N.Y. Const., art. IV, § 3.

55. “[A]n administrative agency may not, in the exercise of its rule-making authority,

promulgate a regulation out of harmony with the plain meaning of the statutory language.” Festa

v. Leshen, 145 A.D.2d 49, 55 (1st Dep’t 1989) (citing Lower Manhattan Loft Tenants v. New

York City Loft Bd., 104 A.D.2d 223, 225 (1st Dep’t 1984), aff’d 66 N.Y.2d 298 (1985); Finger

Lakes Racing Ass’n v. New York State Racing & Wagering Bd., 45 N.Y.2d 471, 480-81 (1978);

Jones v. Berman, 37 N.Y.2d 42, 53 (1975); Goldsmith v. Gabel, 42 Misc.2d 732, 734 (Sup. Ct.

N.Y. Cnty. 1964), aff’d 21 A.D.2d 782 (1st Dep’t 1964)); see Boreali v. Axelrod, 71 N.Y.2d 1,

15 (1987).

21

56. It is the declared public policy of New York State “to maintain reasonable

standards of purity of the waters of the state . . . and to that end . . . prevent and control the

pollution of the waters of the state of New York.” ECL § 17-0101 (emphasis added). Likewise,

the stated purpose of ECL Article 17 is “to safeguard the waters of the state from pollution by

preventing any new pollution. . . .” ECL § 17-0103 (emphasis added).

57. The statutory and regulatory framework implementing the New York State Water

Pollution Control Law explicitly mandates that all point sources of pollutants, including all

CAFOs, whether discharging or “non-discharging,” must obtain permits prior to operation. ECL

§ 17-0701(1)(a) requires “a written SPDES permit . . . to make or cause to make or use any . . .

outlet or point source.” See also ECL § 17-0505. “‘Point source’ means any discernible,

confined and discrete conveyance, including but not limited to any . . . concentrated animal

feeding operation . . . from which pollutants are or may be discharged.” ECL § 17-0105(16).

58. According to NYSDEC:

one of the primary goals of ECL Article 17 is to require permit coverage before a discharge occurs so that adequate safeguards are in place to mitigate the effects of any discharge. This is reflected in ECL § 17-0701(1)(a) which prohibits the creation of a point source for the discharge of waste to waters of the State without a SPDES permit. Furthermore, ECL §§ 17-0101 and 17-0103 indicate a legislative intent to “prevent” pollution from adversely impacting the waters of the State.

Ex. 2, FEIS, at 120 (emphasis added); see also id. at 12 (“state law, unlike the federal rule . . .

regulates CAFOs that do not discharge . . . .”).

59. NYSDEC’s attempt to regulate dairy AFOs with between 200 and 299 cows only

after a discharge has been proven contravenes the plain language as well as the broad policy and

purpose of ECL Article 17, as the legislature has explicitly mandated preventive measures for all

point sources prior to any discharge.

22

60. NYSDEC’s attempt to exempt this category of AFOs from the requirements of the

statute, and the resulting exemption from SPDES permit coverage and compliance, fails because

of this lack of statutory authority. CPLR § 7803(2).

61. Even if NYSDEC had the authority to issue this regulatory carve-out, establishing

this exemption from the state’s CAFO permitting framework was arbitrary and capricious.

62. NYSDEC has purposely and explicitly created a loophole to allow pollution,

stymieing the very purpose of its SPDES program. As a result of the Final Rulemaking, all

point sources in the state are required to obtain permit coverage at creation and prior to discharge

except for dairy CAFOs with between 200 and 299 cows.

63. Moreover, by NYSDEC’s admission, this carve-out has created an unnecessarily

confusing regulatory structure for CAFO operators. In the DEIS, NYSDEC originally rejected

the chosen option, that is: “excluding non-discharging AFOs with 200 to 299 mature dairy cows

from the definition of medium CAFO,” because such an action “could lead to confusion since

non-discharging CAFOs with 300 or more mature dairy cows are still required to maintain ECL

permit coverage.” Ex. 2, FEIS, at 121. Yet, this is confusing—indeed, arbitrary and

capricious—option is the one that NYSDEC has adopted.

SECOND CAUSE OF ACTION: Violation of the Separation of Powers Clause

of the New York State Constitution



65. “[A]n agency may not, in excess of its lawfully delegated authority, promulgate

rules and regulations for application to situations not within the intendment of the statute.”

Festa, 145 A.D.2d at 55 (citing Boreali v. Axelrod, 71 N.Y.2d 1 (1987); Trump-Equitable Fifth

23

Ave. Co. v. Gliedman, 57 N.Y.2d 588, 595 (1982); Bates v. Toia, 45 N.Y.2d 460, 464 (1978);

Lower Manhattan Loft Tenants v. New York City Loft Bd., 104 A.D.2d at 225)).

66. An agency of the state also may not “improperly assume[] for itself ‘[the] open-

ended discretion to choose ends’ . . . , which characterizes the elected Legislature's role in our

system of government.” Boreali v. Axelrod, 71 N.Y.2d 1, 11 (1987) (citation omitted).

67. The New York State Constitution tasks the legislature with, among other things,

the duty “to conserve and protect its natural resources and scenic beauty and encourage the

development and improvement of its agricultural lands. . . . The legislature, in implementing this

policy, shall include adequate provision for the abatement of air and water pollution and of

excessive and unnecessary noise, the protection of agricultural lands, wetlands and shorelines,

and the development and regulation of water resources.” N.Y. Const. art. XIV, § 4.

68. The statutory and regulatory framework implementing the New York State Water

Pollution Control Law explicitly mandates that all point sources of pollutants, including all

CAFOs, whether discharging or “non-discharging,” must obtain permits prior to operation. ECL

§ 17-0701(1)(a) requires “a written SPDES permit . . . to make or cause to make or use any . . .

outlet or point source.” See also ECL § 17-0505. “‘Point source’ means any discernible,

confined and discrete conveyance, including but not limited to any . . . concentrated animal

feeding operation . . . from which pollutants are or may be discharged.” ECL § 17-0105(16).

69. As expressed in the ECL “Declaration of Policy,” the New York State Legislature

has determined that “the quality of our environment is fundamental to our concern for the quality

of life. It is hereby declared to be the policy of the State of New York to conserve, improve and

protect its natural resources and environment and to prevent, abate and control water, land and

air pollution, in order to enhance the health, safety and welfare of the people of the state and

their overall economic and social well being.” ECL § 1-0101 (emphasis added). Likewise, the

24

stated purpose of ECL Article 17 is “to safeguard the waters of the state from pollution by

preventing any new pollution. . . .” ECL § 17-0103 (emphasis added).

70. The purpose of the Environmental Conservation Law is also reflected in DEC’s

mission statement: “[t]o conserve, improve and protect New York's natural resources and

environment and to prevent, abate and control water, land and air pollution, in order to enhance

the health, safety and welfare of the people of the state and their overall economic and social

well-being.” Ex. 29, DEC, About DEC, http://www.dec.ny.gov/24.html (last viewed July 19,

2013) (emphasis added); Ex. 2, FEIS, at 47-48.

71. In order “to carry out the environmental policy of the state set forth in section 1-

0101,” the NYSDEC Commissioner has the power to “[f]oster and promote sound practices for

the use of agricultural land . . . ; [and] [e]ncourage industrial, commercial, residential and

community development which provides the best use of land areas, maximizes environmental

benefits and minimizes the effects of less desirable environmental conditions.” ECL §§ 3-

0301(1)(f)-(g) (emphasis added); Ex. 2, FEIS, at 47.

72. The New York State Legislature has introduced two bills intended to directly

address the economic burdens of dairy CAFOs and one bill that would promote economic

development for agricultural operations. See Ex. 30, A.11284, 233d N.Y. Leg. Sess. (2010);

A.9226, 233d N.Y. Leg. Sess. (2010), S.6140, 233d N.Y. Leg. Sess. (2010). The Senate also

passed Senate Bill No. 4240A, titled, “An act . . . in relation to authorizing industrial

development agencies to provide assistance to agricultural producers.” S.4240A, 234th N.Y.

Leg. Sess. (2011), Ex. 30, which would allow state industrial development agencies to provide

loan assistance to agricultural enterprises, including dairies.

73. This past June, Senator Kathleen Marchione introduced Senate Bill No. 5166,

S.5166, 236th N.Y. Leg. Sess. (2013), Ex. 30, which, along with an identical bill introduced in

25

the Assembly by David DiPietro as A.7986, 236th N.Y. Leg. Sess. (2013), Ex. 30, would repeal

1,000 regulations or rules that purportedly hinder job creation and economic development in

New York.

74. As expressly acknowledged by NYSDEC, the goal of its action challenged herein

is purely economic. “The proposed action aims to remove certain regulatory requirements that

cause economic barriers to allow New York dairy farms to meet th[e] demand [for increased

milk production].” FINDINGS STATEMENT, Ex. 3, at 5; see also id. at 22 (The goal of the

proposed action is to “provid[e] regulatory relief to encourage expansion in the dairy industry.”);

see id. at 25 (“The department finds that the need to provide regulatory relief to allow for the

expansion of dairies is necessary to meet the growing demand for milk and provides a significant

economic benefit without a significant impact on the environment.”).

75. NYSDEC intends to “reduc[e] costs associated with the current regulatory scheme

by eliminating the required development and implementation of a CNMP pursuant to a permit”

in order to encourage 285 traditional dairies to “increase their herd size to greater than over 200

mature milking cows over the next decade.” FINDINGS STATEMENT, Ex. 3, at 5.

76. NYSDEC also admits such an expansion of dairy farms will increase the risk of

discharges of agricultural pollutants to the environment: “as farms grow, they are at an increased

risk of having a discharge because they store more silage, more manure, and produce more milk

processing waste. Given the larger volumes of potential pollutants, any unintended discharge

has the potential to be more environmentally significant. As CAFOs grow in size, it becomes

increasingly important for them to implement BMPs and to have the benefit of oversight, not

only from Department staff during inspections, but also from an AEM certified planner who

would regularly provide guidance to the farmer.” Id. at 23.

26

77. The facts set forth above demonstrate that the NYSDEC’s sole purpose for

exempting CAFOs with between 200-299 mature dairy cows from SPDES permitting

requirements is to relieve one sector of New York’s agricultural livestock industry from the

financial burden of permitting requirements, while NYSDEC will continue to enforce those same

requirements against similarly-sized CAFOs with other types of livestock. NYSDEC did not

provide any technical or scientific justification for the regulatory change.

78. By deregulating dairy CAFOs with between 200 and 299 mature dairy cows,

NYSDEC has shirked the duty imposed upon it by the Legislature “[t]o conserve, improve and

protect New York's natural resources and environment,” and usurped the legislative prerogative

to determine policy regarding the economic interests of the state. In doing so, NYSDEC

operated well outside of its proper sphere of authority in violation of the Separation of Powers

Clause of the New York State Constitution.

79. Petitioners are therefore entitled to judgment declaring that NYSDEC’s regulatory

modifications effecting a deregulation of CAFOs in New York (1) were adopted in violation of

the New York State Constitution, (2), are without or in excess of NYSDEC’s jurisdiction, (3) are

arbitrary and capricious, and (4) are without legal effect.

THIRD CAUSE OF ACTION: Failure to Comply with Procedural Requirements of SEQRA



81. SEQRA requires an Environmental Impact Statement (“EIS”) to include “a

detailed statement setting forth . . . a description of the proposed action . . . ; the environmental

impact of the proposed action including short-term and long-term effects; . . . alternatives to the

proposed action: . . . [and] mitigation measures proposed to minimize the environmental impact.”

27

ECL § 8-0109(2). NYSDEC regulations further require that a draft EIS include: “a concise

description of the proposed action, its purpose, public need and benefits”; “a statement and

evaluation of the potential significant adverse environmental impacts at a level of detail that

reflects the severity of the impacts and the reasonable likelihood of their occurrence”; and a

“description and evaluation of the range of reasonable alternatives to the action that are feasible.”

6 NYCRR § 617.9(b)(5)(i), (iii) and (v).

82. New York courts require strict, not substantial, compliance with SEQRA’s

procedural requirements. Brander v. Town of Warren Town Bd., 18 Misc.3d 477, 479 (Sup. Ct.

Onondaga Cnty. 2007) (“the substance of SEQRA cannot be achieved without its procedure, and

. . . departures from SEQRA's procedural mechanisms thwart the purposes of the statute. Thus it

is clear that strict, not substantial, compliance is required.”) (quoting King v. Saratoga Cnty. Bd.

of Supervisors, 89 N.Y.2d 341, 347-48 (1996))).

83. NYSDEC did not fulfill the strict procedural requirements of SEQRA. In

particular, the FEIS omits any statement or evaluation of the environmental impacts of the

disposal of acid whey generated from increased yogurt production, and the impacts of newly

deregulated dairies land applying the acid whey without a CNMP. It also omits any statement or

evaluation of the environmental impacts of allowing fish hatchery waste to be land applied

without any regulatory oversight. In addition, the FEIS description of the public need and

benefits of the Final Rulemaking, as well as its discussion of mitigation and alternatives, is so

lacking in substance or logical reasoning that it is tantamount to not even including these

required sections in the FEIS.

84. The failure to include minimally adequate sections in the EIS covering these

matters, as required by SEQRA, violates lawful procedure, was affected by an error of law and

was arbitrary and capricious and an abuse of discretion. Accordingly, the Final Rulemaking

28

should be invalidated under CPLR § 7803(3). See Chinese Staff & Workers Ass’n v. City of New

York, 68 N.Y.2d 359, 369 (1986) (annulling a special permit because of deficiencies in

environmental review).

FOURTH CAUSE OF ACTION: Failure to Take A Hard Look at Potential Significant Adverse Environmental

Impacts and Their Likelihood, in Violation of SEQRA



86. SEQRA’s mandates are substantive and not merely procedural. Town of

Henrietta v. New York State Dept. of Envtl. Conservation, 76 A.D.2d 215, 220-23 (4th Dep’t

1980) (an EIS is “not a mere disclosure statement” but is a substantive part of an agency’s

decisionmaking, which must take into account environmental concerns “to the fullest extent

possible”). Substantively, SEQRA requires agencies to take environmental concerns into

account to the fullest extent possible as part of their decisionmaking.

87. For an EIS to serve its purposes, it must take a “hard look” at all the relevant areas

of environmental concern, and make a “‘reasoned elaboration’ of the basis for its determination.”

Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 417 (1986) (quoting Aldrich v. Pattison,

107 A.D.2d 258, 265 (2d Dep’t 1985)).

88. Among other things, an EIS must include “a statement and evaluation of the

potential significant adverse environmental impacts at a level of detail that reflects the severity of

the impacts and the reasonable likelihood of their occurrence,” including “cumulative impacts.”

6 NYCRR § 617.9(b)(5)(iii) and (iii)(a).

89. NYSDEC violated this requirement of SEQRA by failing to take a “hard look” at:

29

i. the potentially significant environmental impacts of disposing of the acid

whey produced by increased yogurt production in the state, especially disposal

by land application on deregulated dairies;

ii. the likelihood that allowing dairies to land apply wastes without a SPDES

permit, CNMP and regulatory oversight will have potentially significant

adverse environmental impacts;

iii. the cumulative impacts of dairies’ adding additional phosphorus (in the form

of manure and acid whey) to soil where phosphorus is already at high levels

without a CNMP and regulatory oversight; and

iv. the environmental impacts of NYSDEC’s decision to completely deregulate

the land application of fish hatchery waste.

a. Failure to Consider Disposal of Acid Whey.

90. The FEIS does not fulfill the requirements of SEQRA because it does not take a

hard look at how acid whey produced by increased yogurt production will be disposed of, or at

the likelihood that the whey will be disposed of at dairies that operate without regulatory

oversight where discharge is likely, thus degrading water quality.

91. If the deregulation of dairies succeeds in increasing yogurt production in New

York to the extent predicted in the FEIS, it will likely result in the production of millions of

pounds of acid whey, a liquid by-product of yogurt production that, like manure, contains

nutrients that can degrade the quality of surface and groundwaters. Ex. 5, Weida Aff., at ¶¶ 8-

10; Ex. 4, Smolen Aff. at 32. This by-product of yogurt production must be disposed of, and

because it is heavy and expensive to transport, it is likely to be disposed of in close proximity to

the yogurt plants. Dairies often accept acid whey for disposal in exchange for tipping fees.

Weida Aff., at ¶¶ 8-10, Ex. 5; Smolen Aff. at 32, Ex. 4.

30

92. The FEIS does not consider: a) how much acid whey will be land-applied in the

state as a result of the Final Rulemaking, nor the impacts of land-applying millions of gallons per

year of acid whey, likely in close proximity to the yogurt plants, and likely on at least some

dairies that do not operate under CNMPs and regulatory oversight; b) the environmental impacts

of allowing dairies with 200 to 299 cows that operate without CNMPs and without regulatory

oversight to land apply both manure and acid whey; and c) how the Final Rulemaking will make

it more likely that acid whey will be land-applied at dairy facilities that do not operate under

CNMPs or permits, thus increasing the likelihood that acid whey will pollute waters of the state.

93. The failure to take a “hard look” at how the acid whey generated by increased

yogurt production will be disposed of, and the likelihood that it will be discharged to waters of

the state, is a fatal flaw in the FEIS.

b. Failure to Consider Likelihood that Allowing Dairies with 200-299 Cows to Operate without a CNMP and Regulatory Oversight Will Have Significant Adverse Environmental Impacts. _____________

94. The FEIS is also substantively deficient because NYSDEC failed to take a hard

look at “the severity of [all of] the impacts [of the Final Rulemaking] and the reasonable

likelihood of their occurrence.” 6 NYCRR § 617.9(b)(5)(iii). NYSDEC identifies numerous

potential environmental impacts, but then discounts the likelihood that these impacts will occur

because it assumed, without any stated basis whatsoever, that potentially significant

environmental impacts of the Final Rulemaking will be mitigated due to deregulated dairies

voluntarily developing and implementing CNMPs and BMPs.

95. NYSDEC’s proposed mitigation, which assumes that deregulated dairies will

voluntarily take all necessary safeguards to protect water quality, despite the significant cost,

even if not required to do so, is completely unrealistic. The premise that deregulation will save

31

dairies money, yet will cause no environmental harm, makes no sense: responsible waste

management costs the same whether those practices are mandated or adopted voluntarily.

96. By relying on a far-fetched and irrational theory of mitigation to write-off the

potential for environmental impacts, and by ignoring the fact that if dairies save money on waste

management, there will inevitably be discharges and environmental harm, NYSDEC has failed to

take a hard look at “the reasonable likelihood of the[] occurrence” of significant adverse

environmental impacts, in violation of SEQRA. 6 NYCRR § 617.9(b)(5)(iii).

c. Failure to Consider Cumulative Impacts of Applying Phosphorus to Land That Already Has High Levels.

97. The FEIS also does not meet the substantive requirements of SEQRA because it

does not consider the cumulative impacts of 1) newly deregulated dairies land applying manure

and whey, which contain the nutrient phosphorus (“P”), without a CNMP and regulatory

oversight (and thus likely over-applying P), and 2) the fact that P is already present at very high,

sometimes excess, levels in many counties where dairies are located.

98. Excess soil P leads to increased P runoff and leaching losses from agricultural

fields to surface and groundwater, and thus land application of wastes in areas with high levels of

soil P requires more, not less, nutrient management planning and oversight. See, Ex. 4, Smolen

Aff. at ¶ 21.

99. NYSDEC admits that excess P already “is a leading contributor to water quality

impairments in watersheds of New York and other areas of the nation.” Ex. 2, FEIS, at 54; see

also id. at 64 (“Phosphorus has caused widespread impacts across the state”); id. at 116 (“many

waterbodies in New York State are impaired due to excess phosphorus”). It also admits that P

“can have negative impacts on public drinking water reservoirs and potentially public health.”

Id. at 54.

32

100. The FEIS fails to take a hard look at the cumulative environmental impacts of

allowing dairies to land-apply wastes containing P (such as manure and acid whey) without a

CNMP and without regulatory oversight, in areas where P is already present at high levels.

101. NYSDEC’s failure to discuss and take a hard look at the “cumulative impacts” of

deregulating the application of P to soils that are already saturated with P violates the substantive

requirements of SEQRA. 6 NYCRR § 617.9(b)(5)(iii)(a) (EIS must evaluate cumulative

impacts).

d. Failure to Consider Unregulated Disposal of Fish Hatchery Waste

102. The FEIS is also deficient insofar as it omits any discussion of the potential

environmental impacts of the rule change that completely deregulates the land application of fish

hatchery-related food and fecal waste. Under prior law, a facility that land applies “undigested

food and fecal material emanating from a New York State owned or licensed fish hatchery” had

to be registered. 6 NYCRR § § 360-4.2(b)(1) (regulations in effect until July 7, 2013). As

amended by the Final Rulemaking, the Part 360 regulations now completely exempt facilities

that land-apply food and fecal waste from fish hatcheries from regulation. 6 NYCRR § 360-

4.2(a)(4).

103. The omission from the FEIS of any “statement and evaluation of the potential

significant adverse environmental impacts,” 6 NYCRR § 617.9(b)(5)(iii), of the fish hatchery

waste deregulation, and the failure to take any look, let alone a “hard look,” at the impacts of this

aspect of the Final Rulemaking is a substantive defect under SEQRA.

104. In sum, NYSDEC did not took a “hard look” at the likely potential environmental

impacts of the Final Rulemaking, and thus the FEIS does not meet the substantive requirements

of SEQRA. Accordingly, the Court should invalidate the rulemaking. See Chinese Staff &

33

Workers Ass’n, 68 N.Y.2d at 369 (annulling a special permit because of deficiencies in

environmental review).

FIFTH CAUSE OF ACTION: Failure to Describe the “Public Need and Benefits” of the

Final Rulemaking in Violation of SEQRA



106. SEQRA requires an EIS to include an accurate description of the “public need and

benefits” of the proposed action. 6 NYCRR § 617.9(b)(5)(i).

107. The discussion of “public need and benefits” in the EIS does not meet the hard

look test because 1) it fails to address why environmental deregulation will lead to dairy

expansions in the face of all the other pressing economic reasons that dairies have recently

chosen not to expand; and 2) it ignores established research showing that pushing traditional

dairies to expand their herds will not strengthen the upstate economy.

108. The statement of public need and benefits in the FEIS is also deficient because

despite the fact that the entire purported benefit of the Final Rulemaking is economic, the FEIS

does not evaluate the “net benefits” of the Final Rulemaking, meaning it does not take into

account the costs of increasing the size of this category of dairy farms—such as subsidies to

dairies that participate in the AEM program, remedying environmental damage to water and air,

and pollution control costs that will ultimately need to be shifted to municipal dischargers in

impaired watersheds.

109. Because NYSDEC did not analyze the net public benefits (meaning the claimed

economic benefits offset by the government’s costs to achieve those benefits), NYSDEC failed

to take a hard look at the public need and benefits of its action, and did not include in the FEIS a

reasoned elaboration of the basis for its determination that there will in fact be a net benefit to the

34

New York State public from deregulating dairies. Jackson, 67 N.Y.2d at 417 (requiring reasoned

elaboration of SEQRA determinations).

SIXTH CAUSE OF ACTION: Failure to Describe and Evaluate a Range of Reasonable

Alternatives in Violation of SEQRA 110. Petitioners repeat and re-allege the allegations contained in paragraphs 1-109


111. SEQRA requires an EIS to “descri[be] and evaluat[e] . . . the range of reasonable

alternatives to the action that are feasible.” 6 NYCRR § 617.9(b)(5)(v). While SEQRA does not

require consideration of every possible alternative, it does require consideration of feasible

alternatives that avoid environmental harm.

112. The FEIS here does not fulfill this requirement because it fails to consider a

genuine “range” of reasonable options, and, in particular, fails to consider any alternative

approaches to increasing the state’s milk supply that do not involve environmental deregulation.

113. The FEIS sets forth four alternatives to the proposed action: (a) the no-action

alternative; (b) deregulating dairies with 200 to 299 cows, but mandating their enrollment in the

AEM program; (c) deregulating dairies with 200 to 299 cows, but mandating that any

deregulated facility located in a watershed with an impaired waterbody enroll in the AEM

program; and (d) terminating the State’s ECL permit program in its entirety and simply

administering the federal Clean Water Act permit. Ex. 2, FEIS, at 111-21.

114. Two of these alternatives—doing nothing, and fully dismantling NYSDEC’s

CAFO regulations—were not realistically on the table. The only real options NYSDEC

considered were slight variations on the proposal it did adopt: requiring all or some deregulated

dairies to participate in the AEM program—a result that NYSDEC claims will occur anyway,

even if not required.

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115. NYSDEC did not consider any alternative involving increasing milk production

from the many New York dairies with more than 300 cows, which already operate under CNMPs

and regulatory oversight, and thus already have structural and non-structural practices in place to

manage large amounts of cow waste.

116. The FEIS also did not consider any alternative involving retaining the regulatory

structure that had been in place, but providing additional financial assistance to dairies with 200

to 299 cows to help them comply with the requirements of the permit.

117. Because there was no genuine “range” to the alternatives NYSDEC considered,

the FEIS fails to meet SEQRA’s mandate that an EIS “evaluat[e] . . . the range of reasonable

alternatives to the action that are feasible.” 6 NYCRR § 617.9(b)(5)(v) (emphasis added).

SEVENTH CAUSE OF ACTION: Failure to Propose Meaningful Mitigation

Measures in Violation of SEQRA



119. SEQRA requires an EIS to include “a detailed statement setting forth . . .

mitigation measures proposed to minimize the environmental impact.” ECL § 8-0109(2)(f). In

assessing the adequacy of proposed mitigation measures, the New York Court of Appeals looks

at whether the agency has a “reasonable basis to conclude” the measures will “in fact minimize

those adverse effects.” Jackson, 67 N.Y.2d at 426.

120. The SEQRA documents describe the required “mitigation measures” as consisting

of NYSDEC’s “expect[ation] that many of the exempted CAFOs . . . would take advantage of”

the “numerous voluntary programs that promote best management practices and industry

guidelines,” both “because of available funding, as well as the farm’s economic self-interest” in

avoiding enforcement actions under statutes and regulations that protect public health and the

36

environment. Ex. 2, FEIS, at 77 (emphases added) (strikethrough in original); see also Ex. 3,

FINDINGS STATEMENT, at 16 (NYSDEC “expects that CAFOs exempt from permit coverage by

this proposed action would either voluntarily elect to retain or seek permit coverage, which the

proposed action allows, or enroll in the AEM program, which offers many of the same

environmental protections as the Department’s permit program”) (emphases added).

121. NYSDEC has no “reasonable basis to conclude” that its purported mitigation

“will in fact minimize” the serious water quality impairments caused by the Final Rulemaking.

This is because the mitigation proposal is based on two fundamentally inconsistent

premises: first, that deregulation is necessary because the cost of the responsible waste handling

measures required by operating under the CAFO General Permit prevents traditional dairies from

increasing their herd size to more than 199 cows; and second, that deregulated dairy CAFOs will

voluntarily adopt responsible waste handling measures even if not required to do so, which will

mitigate any potential environmental impact.

122. The FEIS provides no “reasoned elaboration” explaining why NYSDEC

“expect[s]” that dairy facilities will voluntarily develop responsible waste management practices,

including CNMPs and BMPs, when the stated purpose of deregulating these facilities is to enable

these facilities to avoid the financial costs of developing CNMPs and BMPs to manage waste if

their herds grow to between 200 and 299 cows.

123. NYSDEC’s unsupported mitigation theory is belied by the evidence that many

farms will not voluntarily undertake the level of nutrient management planning necessary to

avoid water quality impairments. Ex. 4, Smolen Aff., at ¶¶ 14, 20(d) & (e), 21, 26, 27; Ex. 5,

Weida Aff., at ¶ 5; Ex. 6, NYSDEC, Selected Inspection Reports and Notices of Violation.

124. Moreover, to the extent that NYSDEC’s mitigation theory rests on the

“expectation” that deregulated dairy facilities will voluntarily develop responsible waste

37

management practices because the state will provide them with funding to do so, Ex. 3, FINDINGS

STATEMENT, at 23, the FEIS does not provide a “reasoned elaboration” for why the state will not

or could not make these funds available to assist regulated dairy facilities to come into

compliance with the requirements of the Part 750 regulations and the CAFO General Permit.

125. Contrary to NYSDEC’s theory, deregulated dairies are highly unlikely to

voluntarily adopt responsible waste management practices due to the threat of enforcement

because many discharges are not easily detectable and NYSDEC has limited capacity to

adequately monitor the newly deregulated dairies to determine if they are discharging wastes.

Ex. 21, FEIS, app. D at 35 (“Response to Comments”); Ex. 2, FEIS, at 119-120.

126. The cost of proper waste management and disposal is the same whether it is done

under mandate or voluntarily. Accordingly, there is a necessary trade-off between regulatory

cost and environmental cost. If dairies choose to avoid the costs of developing and operating

under CNMPs, and operating professionally certified waste storage, treatment and land

application systems, the pollution of the state’s waterbodies will increase.

127. For these reasons, NYSDEC has no “reasonable basis to conclude” that its

purported mitigation “w[ill] in fact minimize” the environmental impacts of the Final

Rulemaking. Jackson, 67 N.Y.2d at 426.

128. Accordingly, NYSDEC violated SEQRA by failing to take a “hard look” at

mitigation measures that would actually minimize the environmental impact of the Final

Rulemaking. ECL § 8-0109(2)(f); 6 NYCRR § 617.9(b)(5)(iv).

EIGHTH CAUSE OF ACTION: Issuing Insupportable SEQRA Findings



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130. After finalizing an EIS, SEQRA requires a decisionmaker to “balance the benefits

of a proposed project against its unavoidable environmental risks in determining whether to

approve the project.” Town of Henrietta, 76 A.D.2d at 222. Before it can approve a project, the

agency must make an “explicit finding” in writing that, “to the maximum extent practicable,

adverse environmental effects . . . will be minimized or avoided.” ECL § 8-0109(8).

131. Despite all of the failings in NYSDEC’s environmental analysis—the failure to

consider the environmental impacts of disposal of acid whey from yogurt manufacturing,

irrationally downplaying the likelihood of environmental impacts in reliance on a pipedream of

voluntary compliance, omitting analysis of the cumulative impacts of applying P on saturated

lands, the failure to evaluate net economic benefits of the Final Rulemaking, the complete failure

to consider alternatives for increasing milk production that do not involve dairies with fewer than

300 cows, and the fallacies underlying the proposed mitigation—NYSDEC’s Findings Statement

concludes that deregulation of dairy facilities with 200 to 299 cows will “benefit New York State

by promoting the dairy industry and increasing economic opportunities, while at the same time

minimizing any potential environmental impacts.” Ex. 3, FINDINGS STATEMENT, at 25.

132. NYSDEC also perfunctorily makes the finding required by New York

Environmental Conservation Law section 8-0109(8)—that “from among the reasonable

alternatives,” the Final Rulemaking “minimizes or avoids adverse environmental effects to the

maximum extent practicable.” Ex. 3, FINDINGS STATEMENT, at 26.

133. For all of the reasons above, these findings are belied by the facts in the record,

are undermined by the shortcomings of NYSDEC’s analysis, and the conclusions are not

supported by any “reasoned elaboration.” Jackson, 67 N.Y.2d at 417 (requiring reasoned

elaboration of SEQRA determinations).

39

134. NYSDEC did not comply with the procedural and substantive requirements of

SEQRA. Accordingly, the determination to deregulate dairy facilities with 200 to 299 mature

cows was "made in violation of lawful procedure [and] was arbitrary and capricious [and] an

abuse of discretion" and should be invalidated pursuant to CPLR § 7803(3).

NINTH CAUSE OF ACTION NYSDEC Violated SAPA by Not Giving The Public An Opportunity to

Comment on Its Substantially Revised Rulemaking



136. The New York State Administrative Procedure Act (“SAPA”) requires agencies

to submit proposed rules to the Secretary of State for publication in the State Register in order to

afford the public notice of the proposal and an opportunity for comment prior to adoption of a

rule. SAPA § 202(1).

137. If, after such notice and comment, the agency proposes to adopt a rule that

“contains a substantial revision” to the proposed rulemaking, the agency “shall submit a notice of

revised rule making to the secretary of state for publication in the state register.” SAPA § 202(4-

a). For purposes of this requirement, a “substantial revision” is “any addition, deletion or other

change in the text of a rule proposed for adoption, which materially alters its purpose, meaning

or effect. . . .” SAPA § 102(9).

138. NYSDEC failed to substantially comply with SAPA because it did not submit a

notice of revised rulemaking for publication even though the differences between the proposed

and Final Rulemaking materially altered the effect of its rulemaking so as to make it confusing

and more difficult for NYSDEC to commence regulation of deregulated dairies that are shown to

be causing water pollution. In particular:

40

i. NYSDEC’s proposed regulation would have adopted the definitions of

“CAFO” that are established under federal law, as codified at 40 C.F.R. §

122.23(b)(6). See Ex. 15, Draft 6 NYCRR § 750-1.2 (21). Under the

proposed regulation, as under federal law, dairy AFOs with between 200

to 299 mature dairy cows would have been considered “medium CAFOs.”

In addition, under NYSDEC’s proposed regulation, medium dairy CAFOs

with between 200 to 299 mature dairy cows would “not [be] considered a

point source.” See Ex. 15, Draft 6 NYCRR § 750-1.5 (12). By defining

certain medium dairy CAFOs as “not . . . a point source,” NYSDEC was

proposing to exempt such facilities from permitting requirements because

being a “point source” triggers the requirement of a permit. See ECL §

17-0701 (it is unlawful to make or use a point source without a SPDES

permit).

ii. In contrast to the proposal, the adopted Final Rulemaking deviates from

the federal definitions of CAFO. Unlike federal regulations, NYSDEC’s

Final Rulemaking states that non-discharging dairy AFOs with between

200 to 299 mature dairy cows are “not . . . considered a Medium CAFO.”

See 6 NYCRR § 750-1.2(a)(21) (“[a] Medium CAFO means an AFO that

stables or confines as many as or more than the numbers of animals in any

of the following categories: (i) 200-699 mature dairy cows, whether

milked or dry, except that an AFO that stables or confines 200-299 mature

dairy cows, whether milked or dry that does not cause a discharge would

not be considered a Medium CAFO”). Ex. 1, Final Rulemaking.

41

139. The Final Rulemaking “materially alters” the effect of NYSDEC’s rulemaking.

SAPA § 102(9). Removing dairies with 200 to 299 cows from the “medium CAFO” category

has consequences for how these facilities are regulated under the CWA. In particular, it makes it

more difficult, and thus less likely, that these facilities can be required to operate under CWA

permits if they discharge pollutants. Under federal law, a medium CAFO that discharges must

operate under a permit. See CWA §§ 301(a), 502(14), 33 U.S.C. §§ 1311(a), 1362(14). In

contrast, an AFO that discharges must only operate under a permit if it also meets the rigorous

requirements for “designation” set forth in 40 CFR § 122.23(c)(2) (2013).

140. The people of New York should have been given the opportunity to comment on

this significant revision to the proposed regulations, which has important implications for water

quality in the state, before it was adopted by NYSDEC.

141. This is especially true because the public could not have anticipated this change to

the proposed regulation. Indeed, in the DEIS, NYSDEC described the regulatory approach it

adopted in the Final Rulemaking as an option NYSDEC considered but ruled out because it

“could lead to confusion since non-discharging CAFOs with 300 or more mature dairy cows are

still required to maintain ECL permit coverage.” Ex. 14, DEIS, at 94; see id. (classifying non-

discharging AFOs with 200 to 299 dairy cows as medium CAFOs, but exempting them from the

definition of “point source,” is preferable because it “avoided unnecessary complication”).

142. Given that NYSDEC’s revision to the proposed rule materially alters its effect in

a way that will make it harder to protect the waters of this state from pollution from deregulated

dairies, SAPA required NYSDEC to submit the revised regulations to the Secretary of State for

publication in the State Register in order to afford the public an opportunity for public notice and

comment on the revised rulemaking. SAPA §§ 202(4-a), 102(9).

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143. NYSDEC’s failure to substantially comply with SAPA section 202(4-a) renders

its adoption of the Final Rulemaking invalid, null and void and, as a matter of law, NYSDEC’s

adoption of the Final Rulemaking without allowing the public to comment on the regulation it

adopted was arbitrary, capricious and an abuse of discretion. Cf. Med. Soc’y of State of N.Y., Inc.

v. Levin, 185 Misc. 2d 536, 548 (Sup. Ct. N.Y. Cnty. 2000), aff’d sub nom., 280 A.D.2d 309 (1st

Dep’t 2001).

TENTH CAUSE OF ACTION: Failure to Maintain Minimum Federal Clean Water Act Permitting Standards



145. The principal purpose of the CWA is “to restore and maintain the chemical,

physical and biological integrity of the Nation’s waters.” CWA. § 101(a), 33 USC § 1251(a)

(2012) (emphasis added). This purpose “is to be achieved by compliance with the Act, including

compliance with the permit requirements.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313

(1982). The centerpiece of the Clean Water Act is the NPDES program. NPDES, established

under Section 402 of the Act, is “the primary means” for achieving the Act’s ambitious water

quality objectives, and serves “as a critical part of Congress’ ‘complete rewriting’ of federal

water pollution law. Arkansas v. Oklahoma, 503 U.S. 91, 101-02 (1992); see Milwaukee v.

Illinois, 451 U.S. 304, 317 (1981); Waterkeeper Alliance, 399 F.3d at 491. “The most important

component of the Act is the requirement that an NPDES permit be obtained.” Dubois v. USDA,

102 F.3d 1273, 1294 (1st Cir. 1996). Congress fashioned NPDES to cure shortcomings in

existing federal water pollution law, which made “it very difficult to develop and enforce

standards to govern the conduct of individual polluters.” U.S. EPA v. State Water Resources

Control Bd., 426 U.S. 200, 202-03 (1976).

43

146. The CWA prohibits the discharge of pollutants from a point source unless

authorized by a NPDES Permit. CWA § 301(a), 33 USC 1311(a) (2012) (“Except as in

compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the

discharge of any pollutant by any person shall be unlawful.”).

147. CAFOs are defined as point sources under federal law. See CWA § 502(14), 33

USC § 1362(14) (2012) (“The term “point source” means any discernible, confined and discrete

conveyance, including but not limited to any . . . concentrated animal feeding operation . . . from

which pollutants are or may be discharged.”). “A CAFO must not discharge unless the discharge

is authorized by an NPDES permit.” 40 CFR § 122.23(d)(1) (2013).

148. As defined by federal regulation, “[a] [m]edium concentrated animal feeding

operation (‘Medium CAFO’) . . . includes any AFO [that] stables or confines . . . 200 to 699

mature dairy cows, whether milked or dry . . . ; and [e]ither one of the following conditions are

met:

(A) Pollutants are discharged into waters of the United States through a man-made ditch,

flushing system, or other similar man-made device; or

(B) Pollutants are discharged directly into waters of the United States which originate

outside of and pass over, across, or through the facility or otherwise come into direct

contact with the animals confined in the operation.

40 CFR § 122.23(b)(6) (2013). Thus, under federal law, a discharge of pollutants from a

Medium CAFO with between 200 and 299 mature dairy cows automatically triggers the federal

NPDES permit requirement without an intervening step of agency “designation” of the facility as

a CAFO. Id.

149. CWA Section 510 prohibits states that operate federally-delegated SPDES

programs, such as New York, from “adopt[ing] or enforc[ing] any effluent limitation, or other

44

limitation, effluent standard, prohibition, pretreatment standard, or standard of performance

which is less stringent than the effluent limitation, or other limitation, effluent standard,

prohibition, pretreatment standard, or standard of performance under [the CWA].” CWA § 510,

33 USC § 1370 (2012); Natural Res. Def. Council, Inc. v. U.S. EPA, 859 F.2d 156, 186 (D.C.

Cir. 1988); see 6 NYCRR §§ 750-1.11(5)(i)-(iii).

150. NYSDEC has duties under federal law to properly exercise control over activities

required to be regulated under the CWA, to issue SPDES permits, to act on violations of permits

or other program requirements, and to inspect and monitor activities subject to the CWA. CWA

§ 510, 33 USC § 1370; 40 CFR §§ 123.63(a)(2), (3) & (5) (2013).

151. New York State law requires “a written SPDES permit . . . to make or cause to

make or use any . . . point source.” ECL § 17-0701(1)(a). CAFOs are defined as point sources

under state law. ECL § 17-0105(16); 6 NYCRR § 750-1.2(a)(65) (“Point source means any

discernible, confined and discrete conveyance, including but not limited to any . . . concentrated

animal feeding operation . . . from which pollutants are or may be discharged.”).

a. NYSDEC Improperly Created a Programmatic Presumption of No Discharge for CAFOs with Histories of Discharges.

152. NYSDEC’s presumption, as reflected in the FEIS, that certain facilities with

histories of discharge will not discharge in the future violates the CWA for failure to meet

minimum requirements under federal law. CWA § 510, 33 USC § 1370; 40 CFR §§

123.63(a)(2), (3) & (5).

153. Under the CWA and federal CAFO regulations, CAFOs that have discharged

pollutants in the past must obtain NPDES permits unless they can affirmatively demonstrate that

the conditions leading to the discharge have been corrected. The U.S. EPA has explained that:

CAFOs that have discharged without a permit only cease to be in violation of the Act when circumstances that led to their discharge have been changed or corrected. CAFOs that have discharged in the past will discharge in the future,

45

and are therefore expected to obtain a permit, unless the conditions that led to the discharge are fully remedied.

Ex. 45, Memorandum from James A. Hanlon, U.S. EPA, Concentrated Animal Feeding

Operation Program Update after National Pork Producers Council v. EPA, at 2 (Dec. 8, 2011).

154. The U.S. EPA has recently further explained that:

[A] CAFO that has discharged without a permit remains in violation of the CWA so long as there is a continuing likelihood that intermittent or sporadic discharges will recur. . . . [National Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011)] does not affect the well-established principle that discharge of pollutants, whether continuous or intermittent and sporadic, require NPDES permit coverage. CAFOs that have discharged without a permit only cease to be in violation of the Act when circumstances that led to their discharge have changed or been corrected. CAFOs that have discharged in the past will discharge in the future, and are therefore expected to obtain a permit, unless the conditions that led to the discharge are fully remedied.

Ex. 27, U.S. EPA REGION 7, PRELIMINARY RESULTS OF AN INFORMAL INVESTIGATION OF THE

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PROGRAM FOR CONCENTRATED

ANIMAL FEEDING OPERATIONS IN THE STATE OF IOWA 17 (2012); see Ex. 28, U.S. EPA REGION 1,

INTERIM RESPONSE TO PETITION TO WITHDRAW VERMONT’S NPDES PROGRAM APPROVAL 7

(2013) (citing Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, 890 F.2d 690, 693 (4th

Cir. 1989), and Carr v. Alta Verde Indus., 931 F.2d 1055, 1062 (5th Cir. 1991)) (“A CAFO that

has discharged without a permit remains in violation of the Act so long as there is a continuing

likelihood that intermittent or sporadic discharges will recur.”).

155. Under its Final Rulemaking NYSDEC utterly ignores the question of past

discharges and instead has chosen to regulate only presently discharging CAFOs by determining

through its new regulation that a “‘Medium CAFO’ is ‘an AFO that stables or confines . . . 200

to 699 mature dairy cows, whether milked or dry, except that an AFO that stables or confines

200-299 mature dairy cows, whether milked or dry that does not cause a discharge would not be

considered a Medium CAFO.’” FEIS, Ex. 2, at 41 (emphasis added). According to NYSDEC,

46

“[a]ll farms with a discharge, regardless of size or location, will be required to maintain CWA

CAFO permit coverage.” Id. at 111; Ex. 21, Response to Comments, at 30 (emphasis added);

see id. at 11 (mischaracterizing federal requirements by stating “the Department must continue to

issue a SPDES permit for facilities that meet the federal definition of a CAFO and have a

discharge” (emphasis added)).

156. It is well known and acknowledged by NYSDEC that the failure to follow a

CNMP when land applying manure may cause discharges of pollutants. Ex. 2, FEIS, at 52-53,

58. Although NYSDEC repeatedly concedes only the “potential” for increased adverse

environmental impacts, it clearly recognizes that runoff from CAFOs is caused by unmanaged

manure that is not spread in accordance with a CNMP. Id. (“Because CAFOs with between 200

and 299 mature dairy cows would no longer be required by permit (as they would no longer be

considered a CAFO unless designated) to spread manure in accordance with a CNMP, there is

potential for increased adverse environmental impacts from runoff caused by the unmanaged

manure.” (strikethrough in original)).

157. According to NYSDEC, of the approximate 75 CAFOs with 200-299 cows, 51 are

currently covered under the CAFO SPDES General Permit GP-0-09-001, which is the general

permit administered for CAFOs that purportedly do not discharge. Id. at 50. In the FEIS,

NYSDEC admits that some of these 51 dairy facilities have a history of discharge. It notes that

of the Medium CAFOs permitted under the General Permit that had sought extension of time to

come into compliance under the permit, one CAFO was denied an extension because of an

ongoing discharge and two were denied extensions because of “pending enforcement actions.”

Id. at 50.

158. Currently operating dairy CAFOs with 200 to 299 cows and a history of discharge

will go unregulated if NYSDEC’s rulemaking is upheld. NYSDEC’s enforcement records show

47

that of the 36 CAFOs that have been inspected in the last seven years, 35 facilities have either

discharged or failed to implement mandatory practices that NYSDEC has found necessary to

prevent discharges. See Ex. 6, NYSDEC, Selected Inspection Reports and Notices of Violation;

Ex. 19, Petitioners’ Joint Comments.

159. Furthermore, at least 12 of these facilities have had confirmed discharges within

the past seven years. Id.

160. In addition to deregulating 75 CAFOs with between 200 and 299 mature dairy

cows, NYSDEC will not require the 285 CAFOs, which it expects to increase their herd sizes to

surpass the 200 cow threshold, to notify the agency or to provide information that the facility is

eligible for the “no discharge” permit exemption. Ex. 21, Response to Comments, at 36. In New

York, out of the nearly 6,200 dairy operations, 850 had herd sizes between 100-199 cows. Ex.

41, USDA, 2007 CENSUS OF AGRICULTURE, at 386.

161. NYSDEC has not developed a self-audit policy to determine whether facilities

discharge pollutants regardless of whether they are under or over the 199 cow threshold. Ex. 21,

Response to Comments, at 36.

162. In contrast to the rebuttable presumption under federal law that a facility that has

discharged in the past will continue to discharge, NYSDEC has essentially created a

programmatic presumption of no-discharge for AFOs with between 200 to 299 mature dairy

cows and for every AFO which NYSDEC’s deregulation will allow to expand beyond the 199

threshold without permit requirements. Ex. 2, FEIS, at 34-36; see Response to Comments 34-35.

163. NYSDEC’s programmatic no discharge presumption makes New York’s SPDES

program less stringent than the federal program, which requires NPDES permits for all CAFOs

with a history of discharge, and is contrary to NYSDEC’s duties to properly exercise control

over activities required to be regulated under the CWA, issue SPDES permits, act on violations

48

of permits or other program requirements, and inspect and monitor activities subject to the CWA.

40 CFR §§ 123.63(a)(2) & (5). Such action also violates CWA Section 510, which prohibits

states from implementing less stringent regulations and implementation of their SPDES

programs than the federal program.

b. NYSDEC Improperly Retained Discretion to Allow Discharging CAFOs to Continue Unpermitted Operation.

164. Under the CWA and the federal CAFO regulations, 40 CFR §§ 122, 123, & 412

(2013), a discharging facility qualifying numerically as a Medium CAFO (e.g., a CAFO with

between 200 and 299 mature dairy cows) must be covered by a NPDES permit and is subject to

enforcement, by operation of law. 40 CFR §§ 122.23(b)(6), (d)(1).

165. New York State’s federally delegated CWA program, enacted under Article 17 of

the Environmental Conservation Law, requires “a written SPDES permit . . . to make or cause to

make or use any . . . point source.” ECL § 17-0701(1)(a). In the FEIS, NYSDEC explains that

for CAFOs that do not discharge, ECL §§ 17-0105(16), 17-0701(1)(a), and 6 NYCRR Part 750-1.2(a)(65) provide that a CAFO is a point source and based upon the creation, use or maintenance of that point source, the owner or operator of a CAFO must obtain coverage under one of the CAFO SPDES Permits prior to operating the CAFO facility.

FEIS, Ex. 2, at 35. Thus, under state law, an AFO with between 200 and 299 mature dairy cows

should automatically be considered a CAFO point source without any need for intervening

agency designation.

166. At least twice in the FEIS, NYSDEC states that when determining that an “AFO”

with the requisite number of animals to qualify as “medium-sized” has discharged, it has the

discretion to “designate” such “AFOs” as CAFOs. For example, NYSDEC claims, “[a]n AFO

with 200-299 mature dairy cows found to be discharging can be designated as a Small CAFO

and could be subject to enforcement actions.” Id. at 81 (emphasis added); see Ex. 21, Response

to Comments, at 34-35.

49

167. NYSDEC also concedes in the FEIS that a discharging AFO would not be

considered a CAFO required to obtain a permit unless designated:

Because CAFOs between 200 and 299 mature dairy cows would no longer be required by permit (as they would no longer be considered a CAFO unless designated) to spread manure in accordance with a CNMP, there is the potential for increased adverse environmental impacts from runoff caused by the unmanaged manure.

Ex. 2, FEIS, at 52-53, 58 (emphasis added) (strikethrough in original).

168. NYSDEC states that it “may” designate a Medium Dairy AFO as a Small CAFO

based on the factors listed in 40 CFR § 122.23(c)(2). Id. at 111. Section 122.23(c) provides that

a state may designate an AFO as a CAFO “upon determining that it is a significant contributor of

pollutants to waters of the United States.” 40 CFR § 122.23(c) (2013).

169. Without NYSDEC staff available to seek out dischargers, or the requirement to

implement a CNMP, NYSDEC will have no realistic way to identify CAFOs that discharge or to

verify that AFOs are not discharging. NYSDEC admits that it will not be able to properly

identify discharging CAFOs, because “staffing is limited, and staff will not be on the ground

specifically searching to identify dischargers. Staff will respond to complaints and suspected

violations if made aware of them, but likely will not be able to seek out and search for

dischargers.” Ex. 21, Response to Comments, at 35. NYSDEC confesses that “staffing in the

CAFO program is limited, making it difficult to allocate resources necessary to identify

discharges. Ex. 2, FEIS, at 119. It further admits that the “ability to track compliance by

CAFOs of all sizes [depends on] specific permit requirements . . . . [T]he Department regularly

inspects CAFOs with ECL permit coverage and mandates submittal of an Annual Report as part

of tracking compliance with the ECL permit.” Ex. 2, FEIS, at 118.

170. Without required implementation of CNMPs, NYSDEC will be less likely to

identify discharging CAFOs upon inspection. NYSDEC recognized prior to its rulemaking that

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in order to maintain their “non-discharging” status CAFOs must “[c]ontinuously follow[] a

nutrient management plan.” Ex. 43, NYSDEC, Medium CAFO Designations for Animal Feeding

Operations (AFOs) at 6; Ex. 44, Jacqueline Lendrum, NYSDEC, CAFO Compliance Success

Story: Hudson Valley Foie Gras: NYWEA Clear Waters – Summer 2010 (asserting “[k]ey among

the permit’s many requirements is the development, implementation and maintenance of a

current Comprehensive Nutrient Management Plan (CNMP) . . . .”).

171. In contrast to the federal and state law, under which discharging CAFOs must be

subject to permit requirements, NYSDEC’s recent regulatory modification requires an additional,

prerequisite step of “designating” discharging AFOs as CAFOs before they may be required to

obtain a permit, giving NYSDEC the authority to allow such operations to continue unpermitted

and without regulatory oversight.

172. This additional designation step weakens New York’s SPDES CAFO program,

making it facially inconsistent with, and less stringent than, federal requirements. Consequently,

NYSDEC has adopted the deregulation of AFOs with between 200 to 299 mature dairy cows in

violation of CWA Section 510, which prohibits states from enacting less stringent regulations

and SPDES program implementation than the federal NPDES program. NYSDEC’s action

violates its duty to properly exercise control over activities regulated under the CWA, and is

contrary to ECL Section 17–0701(1)(a), which requires permits for all CAFO point sources.

173. NYSDEC has violated the requirement of the CWA that delegated state programs

be as stringent in their protection of water quality as U.S. EPA would be. This failure to

“perform a duty enjoined upon it by law,” CPLR § 7803(1), renders the Final Rulemaking

invalid.



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the CWA and the ECL, (2) result in NYSDEC’s failure to perform a mandatory duty, (3) are


ELEVENTH CAUSE OF ACTION: Violations of Clean Water Act and New

York State Antidegradation Requirements



176. Water quality standards adopted pursuant to the CWA must include “a statewide

antidegradation policy.” PUD No. 1 v. Washington Dep’t of Ecology, 511 U.S. 700, 705 (1994)

(quoting 40 CFR § 131.12).

177. Federal regulations implementing the CWA establish three tiers of

antidegradation protection based on existing water quality and existing uses of the water. Ex. 39,

U.S. EPA, Water Quality Handbook – Antidegradation at § 4.2 [hereinafter U.S. EPA

Handbook]. A state’s “antidegradation policy and implementation methods shall, at a minimum,

be consistent with” these federally established tiers. 40 CFR § 131.12(a) (2013).

178. Tier I antidegradation protection established under the CWA and implemented by

states requires that “[e]xisting instream water uses and the level of water quality necessary to

protect the existing uses shall be maintained and protected.” 40 CFR § 131.12(a)(1) (2013). The

protection of “existing uses” under Tier I antidegradation protection “provides the absolute floor

of water quality in all waters of the United States” and “applies a minimum level of protection to

all waters” to protect uses that have already been attained. Ex. 39, U.S. EPA Handbook, at § 4.2;

Water Quality Standards Regulation, 48 Fed. Reg. 51,400, 51,402-51,403 (Nov. 8, 1983).

Activities that “will foreseeably lower water quality to the extent that it no longer is sufficient to

protect and maintain the existing uses in that waterbody” is not allowable and “must be avoided

or [subject to] adequate mitigation or preventive measures” “to ensure that the existing uses and

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the water quality to protect them will be maintained.” Ex. 39, U.S. EPA Handbook, at § 4.4; 40

C.F.R. § 131.12(a)(1).

179. “Existing uses” are “those uses actually attained in the waterbody on or after

November 28, 1975, whether or not they are included in the water quality standards.” 40 C.F.R.

§ 131.3(e). An “existing use” “can be established by demonstrating that: fishing, swimming, or

other uses have actually occurred since November 28, 1975; or that the water quality is suitable

to allow the use to be attained.” Ex. 39, U.S. EPA Handbook, at § 4.4 (emphasis in original).

“In nearly all cases, a waterbody will have achieved some degree of use related to aquatic life,

wildlife, and human activity on or after November 28, 1975.” Ex. 40, Letter from D. Keehner,

U.S. EPA to D. Smithee, Okla. Water Res. Bd., (September 5, 2008), Attachment at 8 (emphasis

added) (hereinafter “Keehner Letter”).

180. “Designated” water uses established as water quality standards by the states

pursuant to CWA § 303 must support and protect, and cannot jeopardize the “existing” water

uses. 40 CFR § 131.10(g), (h), (i) (2013); Ex. 39, U.S. EPA Handbook, at § 2.8; 40 CFR §§

131.3(e), (f) (2013).

181. Tier I antidegradation protection applies to waterbodies that have been listed as

“impaired” pursuant to CWA § 303(d), which, as a matter of law fail to support designated or

existing uses and do not meet assigned water quality standards. Ex. 39, CWA 303(d), 33 USC §

1313(d) (2012); 40 CFR § 130.7 (2013); U.S. EPA Handbook, at § 4.8.1. Antidegradation

protections must be applied and considered in the context of the development or revision of total

maximum daily loads (“TMDLs”) and load allocations of pollutants to waterbodies that are

currently impaired, which must be developed by the states. 33 U.S.C. § 1313(d); Ex. 39, U.S.

EPA Handbook, at § 4.8.1. Thus, TMDL’s must protect “existing” uses. Ex. 39, U.S. EPA

Handbook, at § 4.8.1. No revisions to effluent limitations based on TMDLs are allowed, and no

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new sources of pollution may occur unless such revisions or new pollution “assure the

attainment” of water quality standards, including antidegradation protections. CWA §

303(d)(4)(A), 33 USC § 1313(d)(4)(A) (2012); Ex. 39, U.S. EPA Handbook, at § 4.8.1.

182. “Tier II” antidegradation protection extends to waters that already possess quality

higher than that which is necessary to protect existing or designated uses, and requires that

quality of such waters “shall be maintained and protected unless the State finds, after full

satisfaction of the intergovernmental coordination and public participation provisions of the

State’s continuing planning process, that allowing lower water quality is necessary to

accommodate important economic or social development in the area in which the waters are

located.” 40 CFR § 131.12(a)(2) (2013). Prior to any lowering of water quality “there must be

an antidegradation review” consistent with the Tier II protection regulatory provisions. Ex. 39,

U.S. EPA Handbook, at §§ 4.2, 4.5, see also 40 CFR § 131.12(a)(2).

183. Under Tier II antidegradation protection, in no case may water quality be lowered

to levels that would interfere with existing or designated uses of the water. 40 CFR §

131.12(a)(2); Ex. 39 U.S. EPA Handbook, at § 4.2.

184. In the event a state allows degradation or lower water quality of Tier II waters,

“there shall be achieved the highest statutory and regulatory requirements for all new and

existing point sources and all cost-effective and reasonable best management practices for

nonpoint source control.” 40 CFR § 131.12(a)(2); Ex. 39, U.S. EPA Handbook, at § 4.5

185. Under Tier II antidegradation protection, a state’s ability to lower water quality

after meeting all necessary requirements, provides “relief only in a few extraordinary

circumstances where the economic and social need for the activity clearly outweighs the benefit

of maintaining water quality above that required for ‘fishable/swimmable’ water, and both

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cannot be achieved,” and the “burden of demonstration on the individual proposing such activity

will be very high.” Ex. 39, U.S. EPA Handbook, at § 4.5 (emphasis added).

186. Pursuant to the mandate of the CWA, New York State has implemented a

statewide antidegradation policy which affords Tier I and Tier II protection to NYS waterbodies.

Ex. 42, NYSDEC, Organization and Delegation Memorandum No. 85-40, Water Quality

Antidegradation Policy (Sept. 9, 1985), at 1-2 [hereinafter NYSDEC O&D Memo]. New York

implements antidegradation requirements through various state laws, including through its

SPDES permitting process and SEQRA environmental review process. Id. at 1.

187. Consistent with the CWA and federal Tier I antidegradation protections,

NYSDEC’s antidegradation policy does not allow the degradation of New York State water

quality below that which is necessary to preserve existing water uses, and states that, in all

circumstances, “water quality will be adequate to meet the existing usage of a waterbody,” and

that “water uses and the level of water quality necessary to protect such uses shall be maintained

and protected.” Id. at 1-2.

188. Consistent with the CWA and federal Tier II antidegradation protections,

NYSDEC’s antidegradation policy disallows the degradation of waters which “possess an

existing quality which is better than the standards assigned thereto” absent a showing that

“allowing lower water quality is necessary to accommodate significant economic or social

development in the affected areas.” Id.

189. NYSDEC’s antidegradation policy also incorporates the Federal directive that

“the highest statutory and regulatory requirements for all new point sources and costs effective

and reasonable best management practices for non-point source control shall be achieved.” Id. at

2 (emphasis added).

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190. In addition, New York law prohibits any addition of materials to waters of New

York State that would “cause or contribute to a condition in contravention of water quality

standards,” ECL § 17-0501, which encompass NYS’s antidegradation requirements.

191. Under the CWA, any revision of an “effluent limitation” is subject to and must be

consistent with antidegradation policies established and implemented by states pursuant to CWA

§ 303(d)(4)(B), 33 USC § 1313(d)(4)(B) (2012); Ex. 39, U.S. EPA Handbook, at § 4.8.

192. In particular, revisions to “effluent limitations” must be “reviewed to determine,

based on the level of antidegradation protection afforded to the affected waterbody segment,

whether the proposed activity can be authorized. Water Quality Standards Regulation, Advance

Notice of Proposed Rulemaking, 63 Fed. Reg. 36742 (July 7, 1998). Such “antidegradation

reviews” “should be documented and subjected to public review and comments (e.g., as part of

the public review of the water quality certification, NPDES permit, or other regulatory action).”

Id.

193. NYSDEC’s Final Rulemaking eliminates the requirement that dairy facilities with

200-299 cows that NYSDEC considers currently “non-discharging" operate in accordance with

facility-specific CNMPs.

194. Applicable Federal precedent establishes that “the terms of [] nutrient

management plans constitute effluent limitations.” Waterkeeper Alliance, Inc. 399 F.3d at 502

(emphasis added).

195. Because NYSDEC’s deregulation revises an “effluent limitation” applicable to

dairy farms with 200-299 mature cows, NYSDEC was obligated to subject its revisions to an

“antidegradation review” and make a determination that such changes were consistent with

antidegradation protections afforded by Federal and State law. CWA 303(d)(4)(B), 33 USC §

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1313(d)(4)(B); Ex. 42, NYSDEC O&D Memo; Water Quality Standards Regulation, 63 Fed.

Reg. 36742 (July 7, 1998).

196. NYSDEC has failed to subject the revision of these effluent limitations that

resulted from its regulatory changes to a necessary antidegradation review (by completely

removing that effluent limitation), or demonstrate that the changes are consistent with

antidegradation protections. Ex. 21, Response to Comments, at 33-34. The record supports a

determination that NYSDEC’s deregulation will result in degradation to, or will cause or

contribute to the degradation of, water quality of NYS waterbodies that is prohibited or

unjustified, especially in light of evidence of environmental impacts to NYS waters likely to

occur as a result of NYSDEC’s regulatory changes. See Ex. 4, Smolen Aff., at ¶¶ 7, 9, 28, 29;

Ex. 6, Select NYSDEC, Selected Inspection Reports and Notices of Violation.


modifications effecting a deregulation of dairy farms with 200-299 mature cows in New York (1)

were adopted in violation of federal and NYS antidegradation protections, (2) are arbitrary and

capricious, and (3) are without legal effect.

TWELFTH CAUSE OF ACTION: Violations of Clean Water Act and New

York State Anti-Backsliding Requirements



199. Anti-backsliding provisions contained in the CWA and the ECL make it illegal to

renew, reissue or modify a permit where the new permit contains effluent limitations that are less

stringent than the comparable effluent limitations in the previous permit. See CWA § 402(o)(1),

33 USC § 1342(o)(1) (2012); ECL § 17-0809(3).

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200. The federal and state prohibitions on anti-backsliding apply to modifications to

general permits as well as individual permits. See, e.g., National Pollutant Discharge

Elimination System: Regulations for Revision of the Water Pollution Control Program

Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68,784 (Dec. 8, 1999).

201. While the CWA includes certain exceptions to anti-backsliding prohibitions, in no

case may a permit be modified to contain less stringent requirements if doing so will result in a

violation of water quality standards. See CWA §§ 402(o)(1), 402(o)(2)(A)-(E), 402(o)(3); 33

USC §§ 1342(o)(1), 1342(o)(2)(A)-(E), 1342(o)(3) (2012).

202. New York State’s anti-backsliding prohibition provides as follows:

Notwithstanding any other provision of this article, when effluent limitations are established they must be at least as stringent as the effluent limitations previously required unless the commissioner determines, through regulation, that an exception is warranted as provided in section 303(d) and 402(o) of the Federal Water Pollution Control Act (33 U.S.C. sections 1313(d) and 1342(o)) as amended by the Water Quality Act of 1987.

ECL § 17-0809(3).

203. NYSDEC’s deregulation rulemaking exempts numerous dairy farm facilities from

permit coverage, and thereby from previously mandatory CNMP effluent limitations.

204. The terms of CNMPs unequivocally constitute “effluent limitations” under

Federal and NYS law. See Waterkeeper Alliance, Inc., 99 F.3d at 502; CWA §502(11), 33 USC

§ 1362(11) (2012); ECL § 17-0105(15).

205. NYSDEC has explicitly acknowledged that it is the development and compliance

with these CNMP effluent limitations that provide assurance that any particular farm facility is

not discharging pollutants to water of the State. See, e.g., Ex. 10, DRAFT CHESAPEAKE WIP, at

28; Ex. 3. FINDINGS STATEMENT, at 9 (because the “potential significant adverse environmental

impacts from the proposed action . . . would not occur if a [deregulated dairy facility]

implements BMPs, including developing a CNMP or Nutrient Management Plan (NMP),

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potential impacts are arguably speculative”) (emphasis added); Ex. 2, FEIS, at 52-53, 58, 118;

Ex. 43, NYSDEC, Medium CAFO Designations for Animal Feeding Operations (AFOs), at 6.

206. NYSDEC reaffirmed its position four months before the Final Rulemaking, when

it represented to U.S. EPA that, “it is important to note that the New York CAFO program covers

all farms with as few as 200 cows with binding permits” and conceded “this type of science-

based, risk reduction approach to CAFO regulation should be considered the national

standard; anything less is inconsistent with the Clean Water Act’s ‘best technology’

requirements.” Ex. 10-A, NYSDEC, FINAL PHASE II WATERSHED IMPLEMENTATION PLAN FOR

NEW YORK SUSQUEHANNA AND CHEMUNG RIVER BASINS AND CHESAPEAKE BAY TOTAL

MAXIMUM DAILY LOAD, 27-28 (Jan. 7, 2013).

207. Thus, NYSDEC’s elimination of the requirement that dairy farms with 200 to 299

cows maintain and implement CNMPs constitutes the complete elimination of an “effluent

limitation” for all of the deregulated facilities that results in less stringent requirements for such

facilities, in direct violation of anti-backsliding requirements.

208. For the foregoing reasons, NYSDEC’s revisions to dairy farm permitting in NYS

violate federal and state anti-backsliding provisions.



CWA and NYS anti-backsliding protections, (2) are arbitrary and capricious, and (3) are without

legal effect.

THIRTEENTH CAUSE OF ACTION: NYSDEC’s Failure to Seek and Obtain U.S. EPA

Approval for its Modification of 6 NYCRR Part 750



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211. Revisions to federally delegated NPDES permitting programs, such as

NYSDEC’s SPDES program, including any modifications to a State’s “basic statutory or

regulatory authority, its forms, procedures, or priorities,” require review and approval by the

U.S. EPA. 40 CFR § 123.62 (2013).

212. To accomplish a program revision, a State must request a approval for such

modification from U.S. EPA by submitting to U.S. EPA a modified program description and

other relevant documents for review and approval. 40 CFR § 123.62(b)(1) (2013); Ex. 38,

National Pollutant Discharge Elimination System State Program Guidance for Development and

Review of State Program Applications and Evaluation of State Legal Authorities (40 C.F.R.

Parts 122-125 and 403), at 2-10 to 2-11 (July 29, 1986) (“NPDES 1986 Guidance”). In the

alternative, U.S. EPA has the authority to initiate the review and approval process for a State’s

program revision. 40 CFR § 123.62(d) (2013).

213. U.S. EPA must review proposed program modifications and make a determination

regarding whether such revisions are substantial or non-substantial. 40 CFR § 123.62(b)(2)

(2013); Ex. 38, NPDES 1986 Guidance, at 2-10 to 2-13. If “EPA determines that the proposed

program revision is substantial, EPA shall issue public notice and provide an opportunity to

comment” prior to making a final decision about the proposed modification. 40 CFR §

123.62(b)(2).

214. In any case, “[t]he Administrator [of the U.S. EPA] will approve or disapprove

program revisions based on” applicable requirements. 40 CFR § 123.62(b)(3) (2013). An

explicit determination from U.S. EPA regarding a State program revision is required. See Wis.

Res. Prot. Council v. Flambeau Mining Co., 903 F.Supp.2d 690, 718 (W.D. Wis. 2012); 40

C.F.R. § 123.62(b) (2013). Any proposed program modifications do “not become effective as a

matter of federal law until approved by EPA.” Ex. 38, NPDES 1986 Guidance, at 2-12.

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215. NYSDEC’s rulemaking effecting the deregulation of dairy farms with 200 to 299

cows constitutes a “program revision” since the changes substantively alter NYSDEC’s

regulations promulgated in 6 NYCRR Part 750, which list the CWA, inter alia, as the statutory

authority for those regulations. The rulemaking also substantially alters NYCDEC’s basic

regulatory authority, procedures, and priorities, related to dairy farm SPDES permitting in NYS.

40 CFR § 123.62(a) (2013).

216. Since NYSDEC’s deregulation implicates a “program revision,” NYSDEC was

legally obliged to fully inform, seek review, and obtain approval from U.S. EPA prior to

finalizing its program revision concerning dairy farm permitting in NYS. 40 CFR § 123.62.

217. In any event, U.S. EPA unequivocally invoked its authority to initiate and conduct

the review and approval process in relation to NYSDEC’s deregulation, by recognizing

NYSDEC’s regulatory changes as a “program revision,” and requesting a modification document

package from NYSDEC for review and approval by U.S. EPA. See Ex. 46, Pabst Letter.

218. In order “[t]o ensure that the requirements of 40 CFR Part 123 [have been] met”

U.S. EPA requested that NYSDEC provide (1) “a modified program description,” (2) “an

Attorney General's statement;” (3) “original and modified text of adopted amendments;” (4)

“text of the new rules” and “the draft new Clean Water Act permit.” Id. at 2. Upon information

and belief, no such package was ever provided by NYSDEC to U.S. EPA.

219. NYSDEC’s regulatory changes are properly characterized as “substantial

modifications” since the changes fundamentally alter the substantive requirements contained in

State law, modify NYSDEC’s regulatory control over all dairy farms with between 200 and 299

cows, and implicate a clear and significant programmatic impact to New York State’s CAFO

permitting program that is likely to result in unregulated pollution and impacts to water quality in

New York State. Moreover, there is clearly a high degree of public interest and concern over

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NYSDEC’s revised regulations. Thus public notice and comment is required prior to any

determination by U.S. EPA on whether to deny or approve such changes, and prior to any

finalization by NYSDEC of such changes.

220. Despite the requirements and obligations described above, upon information and

belief, as of the date of filing of this Verified Petition, NYSDEC not obtained the required U.S.

EPA approval.

221. Due to NYSDEC’s failure to obtain explicit approval of its regulatory

modifications from U.S. EPA, NYSDEC’s Finalized Rulemaking cannot be effective as a matter

of federal law, and is null and void. 40 CFR § 123.62(b); Ex. 38, NPDES 1986 Guidance, at 2-

12.


modifications effecting a deregulation of CAFOs in New York (1) were adopted without

required and necessary approval from U.S. EPA “in violation of lawful procedure,” (2) are


* * *

WHEREFORE, Petitioners respectfully request that this Court enter judgment:

1. declaring that Respondents have acted arbitrarily, capriciously, and contrary to law by

issuing a Final Rulemaking that fails to conform to the requirements of federal and state

law in the manner described herein;

2. annulling, voiding, and vacating the Final Rulemaking;

3. requiring immediate withdrawal of the Final Rulemaking and resulting regulations from

the New York Codes, Rules, and Regulations;

supreme court of the state of new york county of … · for judgment pursuant to article 78 of the...

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