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Court of Appeals Interprets New York City Watershed Regulations

Construction within the New York City Watershed located in Putnam County is regulated, in part, by the New York City Department of Environmental Protection (DEP). The New York Court of Appeals, in Nilsson v Dept. of Environmental Protection, limited the authority of DEP to regulate storm water runoff when reviewing a request for a variance from the fill requirements for the subsurface sewage treatment systems (SSTS) of a residence within the watershed.

The Court found that the DEP could not “extend its jurisdiction to otherwise unregulated sources of degradation or contamination.” The Court also found that the DEP could not require the applicant to prove hardship by evidence of projected financial hardship when the submissions by the applicant demonstrated that it would be impossible to construct any residence without the variances. Therefore the Court found that where there was a hardship claimed of impossibility of building a residence on the parcel “there is little more to be said.”

However, the Court remitted the matter to the Supreme Court. During the review process DEP had asked for information concerning the applicant’s real estate holdings in the immediate area, which the applicant refused to provide. The Court agreed with the Appellate Division’s finding that such a request was over broad. Yet, the Court did find that it was reasonable to request information about ownership of contiguous lots, which might allow the applicant to minimize any hardship. As a result the Court directed that there be further proceedings on that issue.

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