ELR Citation: ELR 20111
No(s). s. 03-7203(L), -7253(XAP) (2d Cir. Jun 13, 2006)

The court affirms the imposition of civil penalties against New York City for operating a tunnel that delivers water from Schoharie Reservoir in the Catskill Mountains to the city without a permit. Water from the reservoir is eventually used for city drinking water. As part of the delivery process, water is discharged into Esopus Creek. These discharges from the tunnel into the creek are more turbid than the waters of the Esopus, thereby impairing use of the Esopus for fly fishing and other recreational activities. In a previous decision, the court held that the city was required to obtain a permit for these discharges. A lower court then assessed a $5.749 million civil penalty against the city for the Clean Water Act (CWA) violations. The city appealed both its requirement to obtain a permit as well as the penalty assessment. But there are no compelling reasons to overturn the court's previous decision that the city needs to obtain a permit. And in arriving at the penalty, the lower court carefully considered the factors laid out in CWA §309(d), relied on facts not clearly erroneous, and did not abuse its discretion in deciding the penalty. The court, however, discovered a calculation error and, therefore, remands the case for recalculation of the penalty.

[A prior decision in this litigation is published at 32 ELR 20229.]