In its most recent foray into the meaning of the Clean Water Act, the Supreme Court has answered the fundamental question: “Does a ‘discharge of pollutants’ occur when polluted 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 and then into a lower portion of the same river”? The Supreme held that it does not, holding 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.” (Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. (— S.Ct. —-, U.S., January 8, 2013).
Natural Resources Defense Council, Inc., and Santa Monica Baykeeper had sued the Los Angeles Flood Control District asserting a violation of the Clean Water Act because water quality in the Los Angeles River several miles downstream of the District’s discharge from its storm water system did contain impermissibly high levels of pollutants. They claimed the District was discharging pollutants in violation of the Clean Water Act (“CWA”) on the apparent theory that the concrete-lined channel of the river constituted a point discharge where the flow continued on in the river’s natural channel.
In reaching its decision, the Court unequivocally restated its 2004 decision in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, in which it held that transfer of water between two portions of the same waterbody, even polluted water, is not a discharge of pollutants under the Clean Water Act. Though Miccosukee had originally been the product of a divided Court, in this decision the Court embraced it unanimously.
Perhaps the significance of the Los Angeles decision lies also in the Court’s recognition that a discharger of pollutants cannot be held to be the guarantor of all water quality below its point of discharge. As the Court noted, numerous entities other than District discharge into the river below its point of discharge but upstream from the monitoring stations. The District Court had found that the record before it was insufficient to show that the District’s discharged storm water had contained the standards-exceeding pollutants detected at the downstream monitoring stations. The Ninth Circuit Court of Appeals had mooted that issue by finding, in effect, that the District’s use of the channelized stream to convey the storm runoff operated as part of its system, and constituted a point of discharge where the channel returned to its unimproved state. As noted above, the Supreme Court disagreed, holding that the channelized and natural portions of the stream were a single unitary “water of the United States.”
The Los Angeles County Flood Control District (“District”) operates a drainage system that collects, transports, and discharges storm water, defined as “storm water runoff, snow melt runoff, and surface runoff and drainage.” A municipal separate storm sewer system that serves a population of at least 100,000 is known as an MS4, and requires a National Pollutant Discharge Elimination System permit before it can be used to discharge storm water into navigable water. District obtained a permit for its MS4 in 1990 and the permit has been renewed several times since it was issued. The District’s MS4 discharges into the Los Angeles River at a point where the stream is channelized and lined with concrete. Measurements of water quality are taken several miles downstream at a point where the stream is unimproved.
Natural Resources Defense Council, Inc., and Santa Monica Baykeeper filed a citizen suit against District and several other defendants asserting that water-quality measurements taken at monitoring stations showed that District was violating its permit. The district court granted summary judgment in favor of District, concluding that although water quality standards had been exceeded for a number of pollutants, numerous entities other than District discharge into the rivers upstream from the monitoring stations. The district court found that the record before it was insufficient to show that “District’s MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations.”
The United States Court of Appeals for the Ninth Circuit reversed in relevant part the district court’s decision. The appellate court reasoned that the monitoring stations for the San Gabriel and Los Angeles Rivers are located in “concrete channels” that were constructed for the purpose of flood control, and concluded that “a discharge of pollutants occurred under the CWA when the polluted water detected at the monitoring stations ‘flowed out of concrete channels’ and entered downstream portions of the waterways lacking concrete linings.” The appellate court concluded that because District exercises control over the portions of the river that are lined with concrete, “the District is liable for the discharges that, in the appellate court’s view, occur when water exits those concrete channels.”
The Supreme Court granted certiorari to answer the following question: Pursuant to the CWA, “does a ‘discharge of pollutants’ occur when polluted 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 and then into a lower portion of the same river”? The Supreme concluded that the answer to this question is “no.”
The Supreme Court cited its previous decision in South Fla. Water Management Dist. v. Miccosukee Tribe involving the removal of water from a canal, transport of the water through a pump station, and deposit of the water into a nearby reservoir. In that decision, the Court held “that the transfer of polluted water between ‘two parts of the same water body’ does not constitute a discharge of pollutants under the CWA” because the CWA defines the phrase “discharge of pollutants” as “any addition of any pollutant to navigable waters from any point source.” In Miccosukee, the Supreme Court stated, “Under a common understanding of the word ‘add,’ no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body.” The Court 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.’”
From the reasoning of this previous opinion, it follows “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.” The Court held “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.” Accordingly, the Supreme Court reversed the decision of the court of appeals.
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Eric N. Robinson | 916.321.4500