FOR IMMEDIATE RELEASE
June 18, 2011
Clean Water Advocates of Western New York, Led By Cathy Kern, Reaches Clean Water Act Settlement with the New York State Department of Transportation
On June 17, 2011, United States District Court Judge Mae A. D’Agostino signed a consent decree requiring the New York State Department of Transportation (“NYSDOT”) to comply with its stormwater permit. Pursuant to the permit, NYSDOT was required to develop a program to manage its stormwater from storm sewers across New York State.
Additionally, the permit required NYSDOT to develop a stormwater management plan, documenting NYSDOT’s stormwater management efforts. NYSDOT failed to prepare such a plan and was violating its permit. The Clean Water Advocates of Western New York (“CWANY”) brought this citizen suit under the Clean Water Act in federal court.
The suit was originally commenced against the Wal-Mart, the City of North Tonawanda, and the NYSDOT in the Western District of New York. CWANY is represented by attorney Frank Housh in the Western District litigation. The claims against NYSDOT were separated from the Western District case, and suit was re-filed against NYSDOT in the Northern District. CWANY is represented by Hodgson Russ LLP attorneys Daniel A. Spitzer and Charles W. Malcomb in the Northern District case.
Litigation was initiated to remedy persistent violations of the Clean Water Act and relevant stormwater permits by Wal-Mart, municipalities, and the NYSDOT. NYSDOT’s violations were brought to CWANY’s attention by Wal-Mart’s proposed construction activities in NYSDOT’s highway rights-of-way. Finding Wal-Mart’s stormwater control efforts insufficient, CWANY began investigating NYSDOT’s control policies for stormwater management in areas it controls.
CWANY asserted that NYSDOT was in violation of its storm sewer permit and that NYSDOT has repeatedly failed to apply for permit coverage for construction activities in its rights-of-way. The consent decree requires NYSDOT to (1) issue a draft stormwater management plan for public comment; (2) provide notification of the availability of the draft plan; (3) establish a final stormwater management plan, responding to public comments; and (4) post the final stormwater management plan on its website.
CWANY is still fighting to ensure NYSDOT applies for and receives permit coverage for stormwater from construction activities in its rights-of-way. NYSDOT may not rely on entities like Wal-Mart to comply with the Clean Water Act.
Spitzer stated “The NYSDOT is to be credited for coming into compliance with Clean Water Act’s requirements. At a time when municipalities and private companies are being placed under increasing regaulatory pressures, it is essential that the State lead by example.
Housh commented, "This is a strong vindication of Catherine Kern and CWANY. They have never wavered from their determination that development in their community must be lawful and adhere to environmental mandates."
About the Clean Water Advocates of Western New York
The Clean Water Advocates of Western New York was formed to serve as a strong, united, effective advocate for clean water in New York and across the United States. Led by President Cathy Kern, CWANY’s members use Western New York’s water bodies for recreational, potable, and other purposes. CWANY coordinates policy, message, and funding to foster environmental accountability of developers, municipalities, and state agencies.
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