Water is a precious resource, and New York takes its protection seriously. Before a business can interact with any water sources, they need a permit from the Department of Environmental Conservation (DEC). These documents set limits on how much water businesses and companies can withdraw, what substances they can discharge and how they should treat wastewater before release.
If the DEC denies your business’ permit application, you still have options. Article 78 of the New York Civil Practice Law and Rules provides a way to challenge this decision, especially if you believe the denial was unfair or not based on sound reasoning.
Potential grounds for challenging a permit denial
Article 78 specifies four main reasons for challenging a permit denial. This includes:
- Failure to perform a duty: This ground applies when the DEC did not review a permit application within the required timeframe or failed to consider all the factors they’re supposed to when making a decision.
- Acting beyond legal authority: This means that a government agency made decisions outside its jurisdiction. This could include situations where a local agency denied or approved a permit – a decision only the state DEC can make – or the DEC imposed permit conditions that aren’t related to water quality.
- Improper decision-making: The DEC may not have followed the right process or made unfair choices when deciding on a permit. It could include skipping important steps, misunderstanding rules or making decisions that seem random. For example, the DEC might ignore scientific facts about water quality impacts or give different answers to similar cases without good reasons.
- Lack of substantial evidence: This means the DEC didn’t have enough solid proof to support their decision about a water permit. This often comes up when there was a hearing where businesses presented facts and expert opinions about how a project might affect water quality. If the DEC’s decision doesn’t match up with most of the evidence from the hearing, businesses can challenge this decision.
If a business decides to challenge a permit denial, it must file a petition with the New York State Supreme Court within four months of the denial.
Understand your options
Challenging a permit denial requires a thorough understanding of environmental regulations and legal procedures. To ensure you’re making the best decisions for your business, seek advice from an environmental attorney.