By James B. Bacon, Esq.

The Court of Appeals on October 27, 2005 denied a motion for permission to appeal by the Croton Watershed Clean Water Coalition (CWCWC) in its Article 78 proceeding against NYC Department of Environmental Protection (DEP), which sought to force DEP to examine technological advancements in water treatment technologies which had occurred between 1997 and 2004.

    In responding to the federal requirement to filter all surface drinking waters, in 1997 DEP chose Dissolved Air Flotation Filtration (DAF/F) as the means to treat water from the Croton Watershed.  DAF/F pilot tests were compared with membrane filtration, a promising new technology that pilot tests proved had far fewer adverse environmental impacts than DAF/F.  However, membrane technology was relatively new, and DEP could not be assured that membranes could produce superior water quality. DEP chose DAF/F, while acknowledging in its 1999 FEIS that membrane technology was “state-of-the-art” and “advancing rapidly” and that the number of membrane installations was “growing rapidly” and “being widely used” in the United States.

    Following the Court of Appeals decision that NYC must obtain legislative approval for alienation of parkland in Van Cortlandt Park in the Bronx, DEP issued a Supplemental EIS.  CWCWC submitted detailed information indicating that since 1997 membrane filtration had undergone advancements and reductions in costs which industry experts characterized as revolutionary and the most significant of the last 100 years. As a result, membrane filtration became the method of choice for water system operators both for new systems and for retrofitting older conventional filtration systems such as DAF/F.

When DEP issued its SEQRA findings it ignored CWCWC's comments. CWCWC sued, arguing that DEP failed to comply with SEQRA (§617.9(a)(7)(i)('b') and (§617.9(a)(7)(ii)('a')) and CEQR by failing to examine newly discovered information concerning technological advancements of membrane filtration that was important and relevant to mitigating the project's  significant adverse environmental impacts. (CEQR imposes a duty upon an agency to examine recent technological developments. CEQR Technical Manual (2001) at Chapter 3, pg. 3U-2, §270  and Chapter 2(C), §400 pgs. 2-6, 2-7). CWCWC showed that use of membranes would avoid the 5-year digging of an 11-acre, 80-foot hole, the size of Yankee Stadium in a public park and mitigate impacts to the pediatric asthma death rates which were projected to increase from the project's particulate matter.  Water ratepayers would also have saved approximately 700 million dollars with the avoidance of excavation. (A membrane plant would comprise 1-2 acres rather than 11.)  Similar concerns were expressed to DEP by the State and City Comptrollers' Offices. DEP's response was that even if CWCWC were right, DEP would not discard 5 years worth of work and revisit the technological issue.  DEP also used inaccurate arguments to discredit membrane technology even while a 20 million gallon per day plant is being built by Hazen & Sawyer, the firm that recommended DAF/F to DEP, to filter water from Rye Lake - essentially the same water as in the Croton system. DEP's arguments that organic carbon levels in the Croton are incompatible with membrane filtration are false according to James Taylor, P.E., Ph.D., who ran successful membrane pilot tests on swamp water in Florida where organic carbon levels were over 6 times as high as Croton levels.

SEQRA Scope Narrowed

The Queens County Supreme Court issued a decision which mischaracterized the law and facts of the case.  The Appellate Division affirmed without explanation,  stating that the new information was “not of the type of new information requiring further environmental review of the project at issue.”  At the oral argument, one of the Appellate Justices questioned whether the membrane information was relevant because it did not relate specifically to DAF/F, and that was the project under consideration. Such a restrictive reading of §617.9(a)(7) should have been reversible error.  SEQRA's “newly discovered information” subsection includes any relevant and important information regarding the project's significant adverse environmental impacts.  The Appellate Court ignored the plain language of the regulations as well as the legislative history of the 1986 SEQRA amendments.

State of the Law

With the Court of Appeals' refusal to permit an appeal, DEP and other agencies may now avoid examining technological advancements that may reduce a project's environmental impacts.  The Second Department has carved out an exception to §617.9(a)(7) where a court without explanation, may label new information unfit for consideration due to its particular "type."

This cannot be permitted to stand.  New information may be relevant because it is information about technological advancements that relate to a project's adverse impacts.  Lead agencies may now ignore important new information that demonstrates how impacts can be avoided or minimized. This is precisely the information DEC sought to require lead agencies to consider in the 1986 amendments and the adoption of §617.9(a)(7).