environmental law violations

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

Issues

If water from an interstate river travels through a human-engineered stormwater channeling system before it returns into a lower portion of the same river, does the addition of polluted stormwater constitute a “discharge” from an “outfall” as defined under the Clean Water Act, even though the Supreme Court has previously decided that there can be no “discharge” when water is transferred within a single body of water?

 

Between 2002 and 2008, the Los Angeles County Flood Control District repeatedly detected impermissible levels of water pollution in its stormwater channeling system, the MS4, which collects and transports stormwater runoff through rivers flowing to the Pacific Ocean. The levels were impermissible because they exceeded the pollution amounts allowed to the District through a state-issued permit pursuant to the federal Clean Water Act. The Natural Resources Defense Council and Santa Monica Baykeeper commenced an action, seeking to impose liability on the District for its permit violations in four rivers. The District argues that this case is resolved by the Court’s earlier decision that transferring water within a single water body does not add anything. Its opponents argue that the earlier decision does not apply because the District’s permit establishes that the District discharges pollutants. The Supreme Court’s holding will determine what kinds of precautions a municipality must take to design water treatment systems that comply with the permit system of the Clean Water Act. This decision will impact the way that state and local government agencies plan to reduce pollution and allocate their risks and resources.

Questions as Framed for the Court by the Parties

The Clean Water Act regulates the addition of pollutants to the navigable waters of the United States, including pollutants stemming from municipal stormwater systems. 33 U.S.C. §1342(p).

The questions presented by this petition are:

1. Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

2. When 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 constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

After rainstorms, unabsorbed stormwater that flows over urban areas collects pollution, ultimately carrying it into rivers and oceans. Natural Res. Def. Council, Inc. v. County of Los Angeles (“NRDC”), 673 F.3d 880, 883-84 (9th Cir.

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