Tuesday, January 8, 2013

Supreme Court Rules In LA County Flood Control Dist. v. NRDC

Jan 8: The U.S. Supreme Court issued an opinion 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 [See WIMS 11/30/12]. 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. 
    Today, the Supreme Court said, "The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat.816, as amended, 33 U. S. C. §1251 et seq., does the flow of water out of a concrete channel within a river rank as a 'discharge of a pollutant'? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is 'no.' They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109–112 (2004), in which we accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants- under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We therefore reverse that court's judgment."
    In its unanimous decision, the Supreme Court explained further, "In Miccosukee, polluted water was removed from a canal, transported through a pump station, and then de-posited into a nearby reservoir. 541 U. S., at 100. We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were 'meaningfully distinct water bodies.' Id., at 112. It follows, a fortiori, from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another. We hold, therefore, 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 CWA. Because the decision below cannot be squared with that holding, the Court of Appeals' judgment must be reversed."
    Further, the Supreme Court said, "The NRDC and Baykeeper urge that the Court of Appeals reached the right result, albeit for the wrong reason.The monitoring system proposed by the District and written into its permit showed numerous instances in which water-quality standards were exceeded. Under the permit's terms, the NRDC and Baykeeper maintain, the ex- exceedances detected at the instream monitoring stations are by themselves sufficient to establish the District's ability under the CWA for its upstream discharges. See Brief for Respondents 33–62. This argument failed below. See 673 F. 3d, at 898, 901; App. to Pet. for Cert. 100–102. It is not embraced within, or even touched by,the narrow question on which we granted certiorari. We therefore do not address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for the question we took up for review."
    NRDC issued a release commenting on the decision saying the groups had sought to hold the county responsible for the "toxic mix of mercury, arsenic, cyanide, lead and fecal bacteria found in billions of gallons of stormwater runoff." NRDC said, Today's Supreme Court ruling resolved a narrow legal issue that the parties all agreed on: that the flow of polluted water within a single river does not constitute a 'discharge of pollutants' under the Clean Water Act. The Court did not excuse the County from liability for ongoing water pollution in the Los Angeles and San Gabriel Rivers."

    Steve Fleischli, senior attorney and director of NRDC's national water program said, "We'll continue to seek to hold the Los Angeles County Flood Control District responsible for cleaning up its water pollution. Unless something changes, stormwater pollution will continue to sicken up to one million people in Southern California every year, while local government turns a blind eye and avoids basic infrastructure solutions that will protect people, preserve water quality and increase water reserves." Liz Crosson, Executive Director of L.A. Waterkeeper said, "The county has managed to game the system in a way that has allowed the pollution of our waterways to go unaddressed for many years. The county is the largest source of stormwater pollution to local waterways, and today it has escaped accountability, but only temporarily."

    The groups indicated that, "This pollution can be prevented, however, through the development of green infrastructure solutions, such as on-site water capture and filtration. These techniques trap stormwater pollution at the source, rather than allow it to flow to sea untreated, and allow rainwater to be reused rather than wasted. Green infrastructure is not only good for public health and smart environmental policy, it will save money, increase water supplies, reduce flood risks and clean up local beaches and rivers. The county has not used these available techniques as effectively as it should."

    Access the complete opinion (click here). Access a release from NRDC (click here). 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).  [#Water, #SupCt]

For a short time you can access the complete issue (click here)
Access subscription information (click here)
Want to know more about WIMS? Check out our LinkedIn company website (click here).
33 Years of Environmental Reporting for serious Environmental Professionals

No comments: