The U.S. Supreme Court ruled yesterday in Los Angeles County Flood Control District v. Natural Resources Defense Council that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the federal Clean Water Act (CWA). In so doing, the high court reversed a Ninth Circuit Court of Appeals decision that held the Los Angeles County Flood Control District liable for elevated pollutant levels measured at monitoring stations along the Los Angeles and San Gabriel rivers simply because the district operates and maintains the flood control facilities and monitoring stations.
The Ninth Circuit had found that Los Angeles County violated the CWA when stormwater entered the lower portions of the Los Angeles and San Gabriel rivers. The Supreme Court, after granting review, unanimously reversed the Ninth Circuit decision. The high court, relying on its earlier decision in South Florida Water Management District v. Miccosukee Tribe, held that a discharge from one part of a river to another part of the same river does not result in an "addition" of a pollutant to the river, because the two segments of the river are not "meaningfully distinct."
The ruling is important because it reaffirms the holding of South Florida Water Management District v. Miccosukee Tribe and emphasizes that the CWA and its National Pollutant Discharge Elimination System (NPDES) program apply only where there is a discharge of a pollutant from a point source. The decision places limits on the reach of the NPDES program, and will play a role in future decisions about what can and cannot be regulated under the program.
Best Best & Krieger attorneys submitted an amicus brief on behalf of the National Governors Association, the National Association of Counties, the U.S. Conference of Mayors and other national organizations arguing, among other things, that the Ninth Circuit erred in its decision because there was no identifiable point of discharge. The environmental respondents agreed that the Ninth Circuit wrongly decided the “addition” issue, and asserted various other arguments in attempting to sustain the Ninth Circuit’s decision. But the Supreme Court declined to consider these additional arguments because they were not properly raised before the court.
For more information on this ruling and how it may affect your agency, please contact Shawn Hagerty or Andre Monette in the Environmental Law and Natural Resources practice group or Roderick Walston in the Appellate group.
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