Author:
Jessica Bardi
J.D. Candidate, 2014
New England Law | Boston
Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc, 133 S.Ct. 710, 712 (2013).
Facts:
The LA County Flood Control District (District) operates a municipal storm sewer system that collects, transports and discharges storm water.[1] Under the Clean Water Act, the system is required to have a NPDES permit before it can discharge pollutants into the Los Angeles and San Gabriel Rivers.[2] The NPDES permit for the system required end-of-pipe monitoring at individual discharge points.[3] NRDC and the Santa Monica Baykeeper filed a citizen suit against the District alleging that the District violated its NPDES permit because water quality measurements from the monitoring points were above the regulated levels of pollution.[4]
The District Court granted summary judgment on the issue that there was insufficient evidence that the District’s system contributed solely to the elevated levels of pollution for downstream monitoring stations.[5] The Ninth Circuit reversed, holding the District liable for the discharges that violated the NPDES permit.[6] It reasoned that the District was in charge of the concrete channels, where the monitoring systems were located, and those channels were the source of the pollution into downstream waterways.[7]
The Supreme Court granted certiorari on the issue of whether “under the CWA, does a discharge of pollutants occur when polluted water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river and then into a lower portion of the same river?”[8]
Summary of the Court’s Decision:
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 doesn’t qualify as a discharge of pollutants under the CWA.[9] The Supreme Court based its decision on its holding from South Fla. Water Management Dist. v. Miccosukee Tribe.[10] In that case, the Supreme Court found that discharging polluted water from one part of a waterway to a downstream part of the same waterway was not a discharge of pollutants that should be regulated by the CWA.[11] It reasoned that “discharge of pollutants” under the CWA means “any addition of any pollutant to navigable waters from any point source.”[12] The Court said that there was no “addition” when the polluted water was being transferred to a different portion of the same waterway.[13] Only where the water bodies were different was the CWA triggered.[14]
NRDC and Baykeeper argued that the Court of Appeals was correct in its decision, but wrong in its reasoning.[15] They said that the Court of Appeals misunderstood the facts by thinking that the monitoring stations sampled polluted stormwater from the system before discharge into the Los Angeles and San Gabriel Rivers, therefore two different waterways were involved.[16] The NRDC and Baykeeper argued that there was sufficient evidence from the monitoring systems upstream and downstream to determine that the District is liable for the upstream discharge of pollutants.[17]
Editorial Comment:
1. Have any MA or fed MA courts cited the decision?
No, at the moment neither the Massachusetts state courts, nor the First Circuit have cited this decision.
2. Does the decision impact any DEP programs?
From my research, it doesn’t seem any DEP programs are vulnerable to the decision. Under 314 CMR 3.02, DEP uses the same definition of “discharge of pollutants” as the decision, which is taken directly from the Clean Water Act. There is no mention of improved or unimproved waters within the DEP regulations governing surface water and groundwater discharge permitting programs. In fact, the Massachusetts Clean Water Act essentially mimics the federal Clean Water Act. Therefore, it is unlikely the DEP programs will be effected by this decision.
3. Does the decision overrule any MA or fed MA cases?
Massachusetts state and federal courts have not decided an issue on whether water flowing from an unimproved section of a waterway to an improved part of the same waterway constitutes a discharge of pollutants under the Clean Water Act.
Click Here for the Court's Opinion
Citations
[1] Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc, 133 S.Ct. 710, 712 (2013). See also 40 CFR § 122.26(b)(8) (2012).
[2] Los Angeles, 133 S.Ct. at 712 (citing 33 U.S.C. § 1311(a) and 40 CFR § 122.26(a)(3)).
[3] Los Angeles, 133 S.Ct. at 714 n.2.
[4] Id. at 712.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 712-13.
[9] Id. at 713.
[10] Id.; South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004).
[11] Los Angeles, 133 S.Ct. at 713 (citing South Fla., 541 U.S. at 109).
[12] Los Angeles, 133 S.Ct. at 713 (quoting 33 U.S.C. § 1362(12)).
[13] Los Angeles, 133 S.Ct. at 713.
[14] See id.
[15] Id.
[16] Id. at 713-14 n.1
[17] Id. at 714 (citing Brief for Respondents 33 62).
