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Supreme Court Preview: The 2012/2013 Docket: L.A. County Flood Control District v. Natural Resources Defense Council

October 8, 2012

L.A. County Flood Control District v. Natural Resources Defense Council (NRDC)[1] presents the question whether a “discharge” occurs under the Clean Water Act (CWA) when contaminated water flows from a natural river course through a concrete channel that is part of a municipal storm sewer system (MS4) and back out into a natural river course. The Ninth Circuit held that the Los Angeles County Flood Control District (District) was responsible for discharges of pollutants at the end of concrete channels in two rivers, the Los Angeles River and the San Gabriel River.[2]

Statutory Background

The CWA prohibits the “discharge of a pollutant” into waters of the United States from a “point source” without a National Pollution Discharge Elimination System (NPDES) permit.[3] The CWA defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from which pollutants are or may be discharged.”[4] “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.”[5] Unlike a sanitary sewer system, which transports municipal sewage for treatment at a wastewater facility, or a combined sewer system, which transports sewage and stormwater for treatment, an MS4 contains and conveys only untreated stormwater. Section 402(p) of the CWA, added to the CWA in 1987, addresses MS4s and requires NPDES permits for MS4s which serve over 100,000 people.[6] Section 402(p) allows NPDES permits for MS4s to be issued on “a system- or jurisdiction-wide basis.”[7]

The NRDC Decision

The Los Angeles County basin covers approximately 4,500 square-miles. Stormwater within the basin is collected by MS4s operated by a number of entities, including 84 incorporated cities, Los Angeles County and the District. All of these MS4s are regulated under one basin-wide NPDES permit (the Permit). The District’s MS4 is by far the largest within the basin, consisting of approximately 500 miles of open channel and 2,800 miles of storm drains. The District’s MS4 discharges into the Los Angeles and San Gabriel Rivers at a number of points. Downstream from these discharge points, the District has constructed concrete channels in each river for flood control. Near the end of each concrete channel is a monitoring station (“Stations”), where the river water is tested for a variety of pollutants. Monitoring at these Stations has shown that the water flowing out of the concrete channels contains pollutant levels that exceed the limits set in the Permit.

In 2008, two environmental plaintiffs – Natural Resources Defense Council and Santa Monica Baykeeper (Plaintiffs) – filed a CWA citizen suit alleging that the District’s MS4 was improperly discharging pollutants in violation of the Permit. The Plaintiffs relied on the monitoring data at the Stations, and did not provide any monitoring data from the upstream MS4 discharge points. The District sought summary judgment before the district court, arguing that the water flowing through the Stations did not constitute a “discharge” under the CWA. The District relied on the Supreme Court’s decision South Florida Water Management District v. Miccosukee Tribe of Indians.[8] In Miccosukee Tribe, the Supreme Court held that if two portions of a water body are part of the same water body, moving “water from one into the other cannot constitute an ‘addition’ of pollutants” so as to constitute a discharge under the Act.[9] Responding to these arguments, the district court noted “Plaintiffs have not provided the Court with the necessary evidence to establish that the Los Angeles River and the San Gabriel River below the [Stations] are bodies of water that are distinct from the MS4 above these monitoring [S]tations. In other words, the record before the Court does not show where the MS4 ends and either River begins.”[10] Thus, the court concluded “[t]here is no evidence showing that discharges from the District portions of the MS4 are contributing to the exceedances at the [Stations].”[11] After supplementary briefing on the issue, the district court granted summary judgment for the District.[12]

The Ninth Circuit reversed and remanded to the district court to enter judgment against the District. The Ninth Circuit held that the district court had erred in concluding that there had not been a “discharge” under the CWA from the petitioner’s MS4 into the Los Angeles or San Gabriel Rivers.[13] The court concluded that a “discharge” occurred when the water flowed out of the concrete channels and back into the “naturally occurring” part of the river:

Because the [monitoring] stations, as the appropriate locations to measure compliance, for these two rivers are located in a section of the MS4 owned and operated by the District, when pollutants were detected, they had not yet exited the point source into navigable waters. As such, there is no question over who controlled the polluted stormwater at the time it was measured or who caused or contributed to the exceedances when that water was again discharged to the rivers—in both cases, the District. As a matter of law and fact, the MS4 is distinct from the two navigable rivers; the MS4 is an intra-state man-made construction—not a naturally occurring Watershed River.

The discharge from a point source occurred when the still-polluted stormwater flowed out of the concrete channels where the monitoring stations are located, through an outfall, and into the navigable waterways. We agree with Plaintiffs that the precise location of each outfall is ultimately irrelevant because there is no dispute that MS4 eventually adds stormwater to the Los Angeles and San Gabriel Rivers downstream from the Monitoring Stations.

The Ninth Circuit rejected the District’s argument that merely channeling pollutants created by other upstream municipalities or industrial NPDES permittees should not create CWA liability because the District’s discharges did not add or generate those pollutants. The court explained the CWA “does not distinguish between those who add and those who convey what is added by others—the Act is indifferent to the originator of water pollution.”[14] The court pointed out that the CWA defines “point source” to include instruments that channel water, such as “any pipe, ditch, [or] channel, … from which pollutants are or may be discharged.”[15] The Court also noted that EPA’s regulations further specify that MS4 operators require permits for channeling: “Discharge of a pollutant … includes additions of pollutants into waters of the United States from: surface runoff which is collected or channelled by man; discharges through pipes, sewers, or other conveyances owned by a State [or] municipality.”[16] The court also reconciled Miccosukee Tribe, noting that the Supreme Court concluded that “the definition of ‘discharge of a pollutant’ contained in § 1362(12) … includes within its reach point sources that do not themselves generate pollutants.”[17] Thus, the Court concluded that the water flowing from the end of the concrete channels constituted discharges under the CWA.

Supreme Court Review

The District sought certiorari, arguing that the Ninth Circuit’s decision directly contravenes Miccosukee Tribe’s holding that “simply transferring water from one portion of a single body of water into another portion cannot constitute the ‘addition’ of pollutants for purposes of the [CWA].”[18] The District argued that review of the decision was “essential in order to provide clear guidance to the EPA, state permitting agencies and regulated municipalities concerning application of the [CWA] to improved portions of navigable waters of the United States that serve as flood control systems, and incidentally, municipal separate storm sewer systems.”[19] Finally, the District sought review on the grounds that the “confusion” caused by the Ninth Circuit’s decision imposes a “particularly onerous burden” on the District because of the District’s mandate to provide flood control on the Los Angeles and San Gabriel Rivers. The District cautioned “[d]ecisions involving expenditure of tens of millions of taxpayer dollars and impacting the lives and property of millions of citizens should not and cannot be based on speculation about the potential legal ramifications of engaging in basic flood control.”[20] The District also noted that the decision had far reaching consequences – “virtually every major metropolitan area in the country borders a navigable water of the United States and many are subject to the MS4 permitting requirements. … It is vital that local entities be able to assess sooner, rather than later, potential obligations stemming from efforts to alter adjoining rivers, lakes or streams as part of basic flood and stormwater control.”[21]

In response to the Supreme Court’s invitation, the United States filed an amicus brief recommending that the Court deny certiorari. The United States asserted that the Ninth Circuit’s decision was limited to the facts under the specific Permit at issue, and thus the decision has limited applicability in other contexts.[22]

The merits briefing and the amicus briefs may all be found at the SCOTUS Blog site by following this link. Oral argument has been set for Tuesday, December 4, 2012.

For more information, contact any member of our Environmental Litigation practice group.

[1] Docket No. 11-460. The briefs are available here.

[2] Natural Res. Def. Council, Inc. v. County of L.A., 673 F.3d 880, 902 (9th Cir. 2011).

[3] 33 U.S.C. § 1311(a).

[4] 33 U.S.C. § 1362(14).

[5] 33 U.S.C. § 1362(12).

[6] 33 U.S.C. § 1342(p)(2)(C), (D).

[7] 33 U.S.C. § 1342(p)(3)(B)(i).

[8] 541 U.S. 95 (2004).

[9] Id. at 109.

[10] Natural Res. Def. Council, Inc. v. County of L.A., No. CV 08-1467 AHM, 2010 WL 761287, at *7 (C.D. Cal. 2010).

[11] Id. at *8.

[12] See County of L.A., 673 F.3d at 891.

[13] Id. at 902.

[14] Id. at 900.

[15] Id. (quoting 33 U.S.C. § 1362(14)).

[16] Id. (quoting 40 C.F.R. § 122.2).

[17] Id. (quoting Miccosukee Tribe, 541 U.S. at 105).

[18] Petitioner’s Brief, at 22 (citing Miccosukee Tribe, 541 U.S. at 107).

[19] Id.

[20] Id. at 22-23.

[21] Id. at 23.

[22] See United States CVSG Brief, at 12-16.

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