BY LINDA ROEDER

NEW YORK—The discharge of large quantities ofsediment-laden water through a tunnel into a well-known upstate New York trout fishing stream violates the Clean Water Act, the U.S. Court of Appeals for the Second Circuit said June 13 (Catskill Mountains Chapter of Trout Unlimited Inc. v. New York City Department of Environmental Protection, 2nd Cir.,No. 03-7203, 6/13/06).

A three-judge panel rejected the city’s appeal of a 2003 district court decision and reaffirmed that the transfer of turbid water into Esopus Creek constitutes a discharge of pollutants from a point source requiring a permit under the act.

‘‘While we recognize the incremental administrative burden our interpretation entails, we have little doubt that it nevertheless permits the city to deliver drinking water to its citizens while furthering the Clean Water
Act’s goal to ‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters,’ ’’ the appeals court said in the decision written by Chief Judge John M. Walker.

The decision is the latest development in a longstanding case brought by groups representing fishermen and environmental advocates. The lawsuit charged that the transfer of turbid water from one watershed body to another constitutes a pollution discharge under the Clean Water Act.

In 2003, the U.S. District Court for the Northern District of New York acted on an October 2001 remand from the Second Circuit and fined the city $5.7 million after a bench trial on the grounds that muddy transfers from the city water supply’s Shandaken Tunnel into Esopus Creek constituted a discharge of pollutants requiring a permit (27 DEN A-14, 2/10/03). The city appealed, and the Second Circuit’s June 13 decision reaffirmed its earlier 2001 ruling that held a permit was necessary (208 DEN A-3, 10/30/01).

The city’s 18-mile Shandaken Tunnel in its upstate watershed carries as much as 600 million gallons of water each day from the Schoharie Reservoir. Water laden with sediment from the scouring effect of the discharge harms drinking water quality, damages fish habitat, and impairs the use of the Esopus Creek for fly fishing and other recreational uses, the plaintiffs in the suit charged.

Mere ‘Embellishments.’

The Second Circuit characterized the city’s case as having ‘‘basically serve[d] as warmed-up arguments that we rejected’’ in the first decision, plus some ‘‘additional contentions’’ based on the U.S. Supreme Court’s 2004 decision in South Florida Water Management District v. Miccosukee Tribe of Indians (441 U.S. 95, 58 ERC 1001) and a subsequent Environmental Protection Agency interpretation (56 DEN A-4, 3/24/04).
The appeals court rejected the city’s new arguments as ‘‘simply embellishments’’ to the arguments addressed in the first decision.

The court further upheld the amount of the penalty as not having been an abuse of discretion by the district court judge. But it remanded the penalty to the judge for recalculation after finding a calculation error. The plaintiffs had argued on appeal that the fine was too low and the city had argued that it was too high.

City Says Ruling Inappropriate.

In a statement in response to the decision, a city Department of Environmental Protection spokesman said: ‘‘We believe it is inappropriate to apply rules intended to regulate sewage and industrial waste water to the conveyance of untreated, natural drinking water that is part of a public water supply.’’ He added the Shandaken tunnel carries more than 15 percent of the city’s drinking water supply and that releases are also made through the tunnel to meet state standards for maintaining trout habitat.
‘‘This decision has the potential to compromise the reliability of the city’s water supply system, which serves 9 million people daily,’’ he concluded.

State Attorney General Eliot Spitzer (D), who joined the plaintiffs in the case, welcomed the decision as helping to ensure the water quality of Esopus Creek. ‘‘This environmental victory should remind everyone of the importance of clean water and the need to be vigilant in protecting it for our health and our communities,’’ he said in a June 14 statement. In December 2003, Spitzer issued a set of recommendations for addressing the turbidity problems in the upstate watershed that have plagued the trout stream (242DEN A-10, 12/17/03). Plaintiffs in the case included Trout Unlimited, Theodore Gordon Flyfishers, the Catskill-Delaware Natural Water Alliance, Federated Sportsmen’s Clubs of Ulster County, and the Riverkeeper environmental group.BY JOHN HERZFELD
Toxic Substances
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A-2 (No. 115) NEWS
6-15-06 COPYRIGHT _ 2006 BY THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C. DEN ISSN 1060-2976