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. Under the Clean Water Act, the federal government controls the discharge of pollutants into navigable waters. A person or entity seeking to discharge pollutants must comply with the National Pollutant Discharge Elimination System (“NPDES”), which requires obtaining permits that limit the type and quantity of pollutants that can be discharged. The Clean Water Act imposes numerous requirements on permit holders, including that the permit holders comply with water quality standards, water monitoring obligations, public reporting obligations, and discharge requirements. The Environmental Protection Agency (EPA) has authorized the State of California to set water quality standards and issue NPDES permits. Within the County and District, systems of storm drains and sewers collect and channel untreated stormwater (“ms4s”). The interconnected network of ms4s (“MS4”) channels stormwater to rivers including the Los Angeles River, the San Gabriel River, the Santa Clara River, and Malibu Creek. Between 2002 and 2008, the monitoring stations for the four waterways identified hundreds of violations of water quality standards. The District admits that it discharges pollutants through the MS4 but denies sole responsibility, attributing much of the discharge to thousands of other permit-holders whose stormwater channels into the MS4.
In 2008, Natural Resources Defense Council and Santa Monica Baykeeper (collectively, “NRDC”) filed a citizen-enforcement action against the District and County in the Central District of California, alleging a violation of the NPDES permit and a violation of the Clean Water Act. The court denied motions for summary judgment because evidence did not show whether the waterways below the monitoring stations are distinct bodies of water from the MS4 above the monitoring stations and thus, failed to establish whether there had even been a “discharge” from a “point source” within the statutory meanings of those terms. *7 After the parties filed supplemental briefs, the District Court granted summary judgment for the District and County on all the Watershed Claims because NRDC failed to prove that the pollutants which violated permit requirements passed through the MS4 “outflows” at the time the violations were observed.
The Court of Appeals for the Ninth Circuit reversed in part, finding that NRDC was entitled to summary judgment on its claims pertaining to the Los Angeles and San Gabriel Rivers because the monitoring stations are located within the MS4. Thus, according to the Ninth Circuit, regardless of specifically where the outfall occurs, the MS4 necessarily discharges polluted stormwater to the Rivers downstream from the monitoring stations. The Ninth Circuit affirmed the other two grants of summary judgment for the District and County because the monitoring stations for the Santa Clara River and Malibu Creek were located within the waterways, meaning that NRDC had not linked the presence of water quality violations in the waterways to the MS4’s discharge of pollutants.
The Supreme Court granted the District’s petition for writ of certiorari, limiting its review to Question 2.
Petitioner, Los Angeles County Flood Control District (“District”) argues that this case is resolved by the Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, which recognized that transferring water within a single water body does not add anything. Respondents, National Resource Defense Council and Santa Monica Baykeeper (“NRDC”), argue that Miccosukee does not apply because the District’s NPDES permit presupposes that the District discharges pollutants.
South Florida Water Management District v. Miccosukee Tribe of Indians
The District argues that it does not “discharge” any pollutants into the San Gabriel and Los Angeles Rivers (“Rivers”) pursuant to the statutory definition of “discharge” in the CWA. The District asserts that the CWA defines “discharge” as “any addition of any pollutant to navigable waters from a point source.” Here, the District contends that the lower court did not actually find the addition of pollutants at a point source. Rather, the District claims that the lower court found discharge by looking at data from in-river monitoring stations, which measure the water flowing through the District’s channels. The District asserts that its channels are part of the same water bodies as the Rivers. Thus, the District argues that the rationale discussed in Miccosukee, where the Supreme Court held that the transfer of water from one part of a water body through an engineered improvement to another portion of the same water body does not “add” anything, is applicable in the present case. Moreover, the District cites 33 U.S.C. § 1362(7), which defines “navigable waters” as “the waters of the United States.” The District asserts that the channelized portion of a river is navigable like the rest of the river, and thus, they are a single body of water. Therefore, the District claims that its channels do not discharge into waters of the United States, but “are waters of the United States.” The District contends that there is no statute that says a man-made improvement to a river alters its status as navigable. Further, the District argues that in Rapanos v. United States, the Supreme Court recognized that navigable waters include man-made or improved water bodies.
NRDC responds that Miccosukee does not apply because the District already has an National Pollutant Discharge Elimination System ("NPDES") permit which regulates the District’s discharge of pollutants. NRDC argues that Miccosukee addressed whether a party without an NPDES permit had added pollutants to navigable waters, which would have triggered an NPDES permit requirement. Here, NRDC claims that the District already has an NPDES permit, which recognizes that the District discharges stormwater from its MS4 into the Rivers. NRDC asserts that Miccosukee does not prevent the CWA from regulating discharges from MS4s. Moreover, NRDC claims that Miccosukee does not apply because the District admits to adding pollutants into the San Gabriel and Los Angeles Rivers from various point sources. Thus, NRDC contends that the issue is not whether the District discharged pollutants, but whether the District is liable based on data from monitoring stations indicating excessive pollutant levels. NRDC further contends that the District’s argument concerning man-made improvements on the Rivers addresses a question that the Court declined to review when it granted certiorari: whether the portions of the Rivers lined with the District’s concrete channels are navigable. NRDC claims that the District has an NPDES permit because it discharges from its MS4 into navigable waters, so the relevant issue is how the District measured compliance under its NPDES permit, and whether the District violated the permit.
How to Establish “Discharge” Under the CWA
The District argues that an NPDES permit alone without proof that the permit-holder “added” a pollutant does not constitute a discharge in violation of the CWA. To establish a CWA violation, the District contends that a plaintiff must show discharge from a point source. The District claims that the Ninth Circuit erroneously found discharge based on a finding of excessive pollutants at monitoring stations located in the Los Angeles and San Gabriel Rivers. The District argues that the court did not actually find addition of pollutants upstream from the monitoring stations. Rather, the District claims that the court mistakenly found discharge by reasoning that concrete channels in a river can be a point source. However, the District contends that its channels in the Los Angeles and San Gabriel Rivers are part of those Rivers, and thus, not point sources. The District further argues that a plaintiff, to prove discharge, would have to show the addition of pollutants from one of the District’s MS4 outfalls. The District claims that for the purpose of regulating MS4s, the EPA has noted the importance of knowing the location of “outfalls,” because outfalls “clarify where the storm sewer ends and where waters of the United States begin.” Thus, the District concedes that its “pipes, drains and other elements of its storm sewer system” are outfalls under the CWA, and that they do discharge into the Rivers, but that NRDC has failed to show that water flowing out of those outfalls caused excessive pollution levels.
NRDC responds that the excess pollutant levels recorded at the monitoring stations required by the EPA permit system are sufficient to show a CWA violation. NRDC argues that NPDES requires each discharger, in its permit application, to propose a monitoring scheme that complies with the permit-holder’s pollution limits. Here, NRDC claims that the District proposed its “instream stations” as representative locations instead of placing stations at precise MS4 outfalls. NRDC argues that this option is practical because most large MS4s have too many outfalls to monitor individually. Thus, NRDC disputes the District’s claim that compliance can only be measured at an outfall. Instead, NRDC claims that citizens and the government can enforce the permit system by comparing the samples at monitoring stations to the particular pollution limits in a permit-holder’s permit. NRDC asserts that the District’s permit includes a self-monitoring system that prohibits discharges that exceed water quality standards. Further, NRDC claims that samples from the District’s instream stations in the Los Angeles and San Gabriel Rivers show more than 140 samples exceeding the District’s permitted limits. NRDC concludes that even though the District’s monitoring stations are “not located directly at the District’s discharge points,” under the EPA’s regulatory scheme permitting representative sampling, these samples prove that the District violated its permit.
The parties dispute whether the Clean Water Act (“CWA”), whose permit system regulates the addition of pollutants, imposes liability on the District as principal permit-holder for exceeding allowed pollution levels. The District argues that it has not violated its permit because it did not “add” pollutants under the term as it is defined in the CWA. In opposition, Natural Resources Defense Council and Santa Monica Baykeeper (collectively, “NRDC”) argue that because the District’s self-monitoring of its municipal separate sewer system (“MS4”) has shown consistent permit violations, the CWA imposes liability on the District.
Impact on Municipal Decision-Making
The District maintains that if the Supreme Court finds that the National Pollutant Discharge Elimination System ("NPDES") permit system applies to engineered improvements in a river, municipalities will face increased costs of flood control planning, regulatory compliance, and potential liability for alleged pollutant discharges. According to the International Municipal Lawyers Association (“IMLA”), if a municipality can be held responsible for pollutants found in improved portions of a river, regardless of whether the municipality has added the pollutants or just transported them, it will bear significant costs and face uncertainty about its liability. IMLA notes that flood control is a process that cannot be easily modified and that there is limited money available to municipalities to fund flood control measures. IMLA insists that applying the permit system in this case will actually increase municipal liability because the holding changes legal rules, impeding the municipalities’ abilities to submit detailed proposals to receive funding for flood control.
NRDC counters that the District exaggerates the costs it would incur to achieve compliance under the NPDES permit program if the Court finds the District liable. In support of NRDC, Heal the Bay asserts that green infrastructure represents a cost-effective, efficient stormwater management option that is a worthwhile investment for municipalities seeking to comply with permit restrictions. Further, Heal the Bay notes, municipalities may subsidize permit compliance costs by funding implementation of green infrastructure through bond issues, general fund allocations, and state and federal loans. Moreover, according to Dr. Linwood Pendleton, allowing the District to avoid liability carries costly public health and economic implications, as shown by studies that link water pollution to medical ailments and reduced property value.
Interpreting Lawmakers’ Intent
The National Governors Association (“NGA”) contends that if the Supreme Court imposes liability on the District for permit violations under the federally-enacted CWA, it will disrupt the partnership that Congress intended to create between federal and state regulation of water quality and water use. NGA notes that the CWA purposely delegates to states the authority to oversee their own management of water pollution and does not require states to implement the NPDES permit program. To impose liability under the CWA for permit violations would undermine the authority that Congress has intentionally delegated to the states.
In opposition, the National Wildlife Federation (“NWF”) argues that the Supreme Court will override congressional intent if it fails to impose liability on the District under CWA. NWF reasons that if the District may defend itself against liability by challenging the terms of its NPDES permit, other permit-holders will attempt to raise similar defenses to their own permit violations. The result of challenges by permit-holders, according to NWF, is delayed compliance with water quality standards and further damage to wildlife habitats, public health, and safe use of national waters. NWF notes that this result is entirely contrary to what Congress intended when it enacted the CWA to maintain and improve water quality nationally.
In this case, the Supreme Court will determine whether water that flows from a river into a man-made channel and back into the river can be a “discharge” as defined pursuant to the Clean Water Act. This decision will clarify the relationship between the Environmental Protection Agency’s National Pollutant Discharge Elimination System and the Supreme Court’s recent decision in South Florida Water Management District v. Miccosukee Tribe of Indians, which recognized that the transfer of water between two points in a single water body does not “add” anything under the Clean Water Act. The Court’s decision will impact parties who face water management issues, including state and local government agencies, environmental groups, and water suppliers.
- Richard Frank, In the Supreme Court’s Crosshairs: The Ninth Circuit’s Environmental Jurisprudence (June 19, 2012).
- Lawrence Hurley, Clean Water Act Cases on Docket as Justices Return (Sept. 24, 2012).