This article analyzes the CWA's provisions ensuring public participation in the permitting process and the history of EPA regulations implementing the public participation requirements. The article then examines the EBPS authorizing legislation, DEC's Technical Guidance concerning its implementation of the EBPS, and some instances of DEC's actual practice implementing the EBPS, and compares these procedures with the public participation requirements contemplated by both the CWA and New York State's own clean water implementing legislation, Environmental Conservation Law Article 17. The article concludes that the procedures adopted by the DEC are inconsistent with both the CWA's public participation requirements, as well as with the Environmental Conservation Law's own requirements for reissuance of federally delegated Clean Water Act permits. The article then makes recommendations to improve the EBPS in order more fully to comply with CWA public participation requirements.
Karl S. Coplan, Of Zombie Permits and Greenwash Renewal Strategies: Ten Years of New York's So-Called "Environmental Benefit Permitting Strategy", 26 Pace Envtl. L. Rev. 1 (2005), available at http://digitalcommons.pace.edu/lawfaculty/357/.