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Thursday, January 17, 2013

Storm Water Transfer Not a Discharge of Pollutants

The U.S. Supreme Court recently reaffirmed its position in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004), that the transfer of polluted water between two parts of the same water body does not constitute a discharge of pollutants under the Clean Water Act.   Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., 568 U.S. (2013).

The Los Angeles County Flood Control District operates a municipal storm sewer system that collects, transports, and discharges storm water that is often heavily polluted.  Storm water flows from one portion of the river system, through a concrete channel, and then back into a lower portion of the river system. The Natural Resources Defense Council brought suit, alleging that its Flood Control District violated the State Pollutant Discharge Elimination System permit by allowing storm water runoff to flow into the Los Angeles and San Gabriel rivers.  The Council alleged that the storm water runoff caused the water-quality standard to be degraded by mercury, arsenic, lead, cyanide, and fecal bacteria, in violation of the permit. The Flood Control District responded that several sources had discharged into the river system and there was no way to know who was responsible.

The 9th Circuit held in favor of the Council, finding that the Flood Control District had violated its permit.  On appeal, the U.S. Supreme Court reversed, unanimously holding that the Flood Control District did not violate the permit by transferring already polluted water from one part of the river to another part of the same river. The Supreme Court looked to the Clean Water Act, which requires a permit for any “discharge of pollutants” into a river.  The Court then addressed whether the Clean Water Act’s permitting requirements are applicable when water flows from one portion of a navigable river through a concrete channel, and then back into a lower portion of the river. After reviewing precedent case law, the Supreme Court unanimously held that the Clean Water Act does not regulate movement of water from one part of a river, through a concrete channel, into a lower portion of the same river. 

Environmental groups have expressed dissatisfaction with the Supreme Court’s ruling, arguing that the Flood Control District should not be excused from mitigating water pollution.

Post Authored by Erin Baker, Ancel Glink


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