Environmental Law: United States Supreme Court Sides with Los Angeles County Flood Control District, Reversing Previous Ninth Circuit Decision
*Article co-written by Jonathan Shardlow
Yesterday morning, the United States Supreme Court issued its much-anticipated ruling in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. The Supreme Court held that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the Clean Water Act. In reaching its decision, the Supreme Court found that the transfer of water is a discharge of a pollutant only if the water was moved between “meaningfully distinct water bodies,” and thus, “no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another.”
At issue was Los Angeles County Flood Control District’s operation of its municipal separate storm sewer system (“MS4”) which is a drainage system that collects, transports, and discharges storm water. The water enters concrete channels constructed for flood-control purposes and flows into downstream portions of waterways that do not have concrete linings.
The Ninth Circuit of Court of Appeals had held that a discharge of pollutants occurred under the Clean Water Act when polluted water, detected at monitoring stations in the concrete channels, flowed out of the concrete channels and into the downstream portions of waterways lacking concrete linings.
If that prior decision were to stand, then the District would be liable for discharges to the San Gabriel River and Los Angeles River from co-permittees and from other permitted and non-permitted sources, regardless of whether they were transmitted through a portion of the MS4 which was operated by the District. Such a result would unquestionably result in MS4 operators looking to shift its liability to upstream permitted dischargers and to others. Recently, the Los Angeles County Regional Water Board adopted a new MS4 permit which became effective on December 28, 2012 and which requires numerous additional monitoring locations.
The United Supreme Court unanimously reversed the decision of the Ninth Circuit Court of Appeals.
If you have any questions about the holding in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., MS4 permits, or reducing potential liability for stormwater discharges, please contact Craig Beam or Jonathan Shardlow of JDTP’s Environmental Services Group.