U.S. Supreme Court Clarifies “Discharge of a Pollutant” under Clean Water Act
By Bingham Greenebaum Doll LLP
On January 8, 2013, the United States Supreme Court ruled that the flow of polluted water from one portion of a river lined with concrete to another unlined portion of the same river is not a discharge requiring an NPDES permit under the Clean Water Act. The 9-0 decision came in L.A. County Flood District v. NRDC and reversed the U.S. Court of Appeals for the Ninth Circuit which had found NPDES permit violations.
The Natural Resources Defense Council (NRDC) and Santa Monica Baykeeper (Baykeeper) had sued the Los Angeles County Flood District (Flood District) alleging violations of effluent limits in the Flood District’s NPDES permit. The Flood District operates a municipal separate stormwater sewer system (MS4) that collects rainwater and channels it into the Los Angeles River. This runoff collects pollutants as it makes its way from the surface, through the MS4, and into the river. The Flood District is required to have an NPDES permit for discharges from the MS4. Parts of the river have been lined with concrete to help control flooding. Monitoring stations downstream from the concrete-lined channel detected exceedances of NPDES permit limits.
NRDC and Baykeeper brought a citizen suit against the Flood District to enforce the terms of the NPDES permit, claiming discharges from the concrete channel caused the violations at the monitoring stations. The Flood District responded that it could not be held responsible for the violations because it was impossible to prove that the numerous dischargers upstream from the MS4 outfalls were not responsible for the violations. The District Court ruled in favor of the Flood District, but the 9th Circuit Court of Appeals reversed the lower court’s ruling, finding that the Flood District was responsible for the violations because a discharge occurred when water passed out of the concrete channel and into the unlined portion of the river. The Supreme Court agreed to hear the case, but focused only on one very narrow question: “[Under the Clean Water Act (“CWA”)], does the flow of water out of a concrete channel within a river rank as a ‘discharge of a pollutant’?”
The case had been closely watched as it offered an opportunity for the Supreme Court to weigh in on a 2008 rule that excludes certain water transfers from NPDES permitting (Water Transfers Rule). The Water Transfers Rule has been controversial and several challenges to its validity are pending. The Water Transfers Rule exempts certain water transfers from the requirement to obtain an NPDES permit, as long as the transfer of water from one body of water to another body is not subject to an intervening industrial, municipal, or commercial use, even if the transfer involves moving polluted water into a separate body of clean water. Rather than addressing the validity of the Water Transfers Rule, the Court based the narrow ruling on its 2004 holding in South Fla. Water Management Dist. v. Miccosukee Tribe that water transferred from one body of water back into the same body of water is not a discharge of pollutants under the Clean Water Act.
To view a complete PDF of the November/December 2012 issue of the Environmental Letter, click HERE.