The U.S. Supreme Court for the second time ruled Jan. 8 that
discharging polluted water from one part of a waterway to another part of the
same waterway does not require a permit under the Clean Water Act (Los
Angeles Flood Control District v. NRDC, U.S., No. 11-460, 1/8/13).
The Supreme Court's ruling reverses a decision by the U.S. Court of Appeals
for the Ninth Circuit, which had held that the Los Angeles County Flood Control
District violated its discharge permit by channeling polluted stormwater from
concrete-lined to unlined portions of the Los Angeles and San Gabriel
The Supreme Court granted review solely on the issue of whether water flowing
from one portion of a river through an artificial channel into another portion
of the same river constituted a discharge subject to Clean Water Act permitting
The court's decision reaffirmed that the transfer of polluted water between
two parts of the same water body does not constitute a discharge of pollutants
under the act, citing its 2004 decision in South Florida Water Management
District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105, 58 ERC 1001
Quoting from a Second Circuit opinion, the Supreme Court said, “If one takes
a ladle of soup from a pot, lifts it above the pot, and pours it back into the
pot, one has not 'added' soup or anything else to the pot.”
This observation came from Catskill Mountains Chapter of Trout Unlimited
Inc. v. New York, 273 F.3d 481, 492, 53 ERC 1392 (2d Cir. 2001), and was
previously quoted by the Supreme Court in Miccosukee.
At issue is a case that originated in the U.S. District Court for the Central
District of California and was brought by the Natural Resources Defense Council
over claimed violations of a municipal separate storm sewer system (MS4) permit
for the district's drainage system.
NRDC alleged violations of the permit due to stormwater discharges through
concrete channels into the two rivers. The monitoring stations required under
the district's permit showed pollutants in the river that exceeded the permit's
limits. The district court concluded that the plaintiffs lacked evidence to
prove the flood control district caused the discharges that violated the terms
of its discharge permit.
The Ninth Circuit reversed, saying the Clean Water Act does not distinguish
between those who add pollution and those who convey what is added by others.
“The Act is indifferent to the originator of water pollution,” it said. This led
the flood control district to seek Supreme Court review (NRDC v. County of
Los Angeles, 636 F.3d 1235, 72 ERC 1385 (9th Cir. 2011); 48 DEN A-16,
The Supreme Court said this was inconsistent with its 2004 Miccosukee
ruling. “In Miccosukee, polluted water was removed from a canal,
transported through a pump station, and then deposited into a nearby reservoir,”
the Supreme Court wrote.
“We held that this water transfer would count as a discharge of pollutants
under the CWA [Clean Water Act] only if the canal and the reservoir were
'meaningfully distinct' water bodies,” it said.
Accordingly, the Supreme Court wrote, “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,” the Supreme Court
“Because the decision below cannot be squared with that holding
[Miccosukee], the Court of Appeals' judgment must be reversed,” the
Supreme Court concluded.
According to attorney Timothy S. Bishop with Mayer Brown LLP, the Supreme
Court's decision is “not surprising,” since the Ninth Circuit failed to apply
the test laid down in Miccosukee, which “made clear that moving
pollutants around within a single water body involves no 'addition' of
pollutants to waters, and so does not require a Clean Water Act permit.”
But Bishop said it leaves open important questions about the validity of the
water transfer rule that EPA adopted in 2008. The water transfer rule “goes a
step further and states that discharges of pollutants from activities that
convey waters between water bodies, through pumps or channels for example, do
not require a permit,” Bishop stated (111 DEN A-1, 6/10/08).
“Environmental groups have challenged that rule, which is being litigated at
the moment and is likely to eventually reach the Supreme Court. Unfortunately,
the Court's opinion today does not give any clues how it might resolve that very
important dispute,” Bishop said (Friends of the Everglades Inc. v. EPA,
11th Cir., No. 08-13652, 10/26/12; 211 DEN A-2, 11/1/12).
Justice Ruth Bader Ginsburg delivered the opinion of the court. She was
joined by seven other justices. Justice Samuel A. Alito concurred in the
By Robert C. Cook and John Henry Stam
The U.S. Supreme Court's decision in Los Angeles Flood Control District v.
NRDC is available at http://op.bna.com/env.nsf/r?Open=smiy-93ru66.
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