Supreme Court Will Wear Oral Arguments In Stormwater Case

Nov 30: On December 4, the U.S. Supreme Court will hear oral arguments in the case of Los Angeles County Flood Control District, Petitioner v. Natural Resources Defense Council, Inc., et al. (SupCt. docket 11-460). The high profile case with 22 amicus briefs, deals with the issue of pollutants stemming from municipal stormwater systems.

 

    The questions presented in the case include: (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?

     In March 2011, the U.S. Court of Appeals, Ninth Circuit (Case No. 10-56017) ruled partially in favor of NRDC, et al [See WIMS 3/11/11] and overturned a district court's grant of summary judgment in favor of two municipal entities and Los Angeles County. In that case Plaintiffs contended that Defendants County of Los Angeles (County) and Los Angeles County Flood Control District (District) were discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County. Defendants contended that there was no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers.

 

    However, the Appeals Court also ruled, "Plaintiffs, however, failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River and Malibu Creek [the other two water bodies]. Plaintiffs did not provide evidence sufficient for the district court to determine if stormwater discharged from an ms4 controlled by the District caused or contributed to pollution exceedances located in these two rivers. Similarly, Plaintiffs did not delineate how stormwater from ms4s controlled by the County caused or contributed to exceedances in any of the Watershed Rivers. Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants on these claims."

 

    In a blog posting from NRDC, the group says, "In the case we'll argue Tuesday, we are asking Los Angeles County to stop shirking its responsibility and start doing right by the residents of Southern California -- and the region's millions of annual visitors. In resisting our efforts, the flood control district is dramatically overstating the cost of adopting green infrastructure and reducing water pollution in the region. By doing the right thing, Los Angeles County officials, like many of their counterparts around the country, would learn that embracing green infrastructure is not only good for public health and smart environmental policy; it will actually save money, increase water supplies, reduce flood risks and clean up local beaches and rivers."

 

    Access the SupCt docket for the case (click here). Access links to all of the merit and amicus briefs in the case (click here). Access the complete opinion of the Ninth Circuit (click here). Access the blog posting from NRDC with links to related information (click here). [#Water, #SupCt]

 

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