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The U.S. Supreme Court is set to review an appeals court decision that held a channelized portion of a river in Los Angeles County that allows contaminated runoff to flow into an unchannelized portion of the river to be a point source subject to Clean Water Act permitting requirements.
The high court will hold oral arguments Dec. 4 in its review of the March 2011 decision by the U.S. Court of Appeals for the Ninth Circuit in light of its own 2004 Miccosukee ruling, which said a transfer of water within a single body of water cannot constitute a “discharge” under the Clean Water Act.
At issue is the National Pollutant Discharge Elimination System permit issued by the state in 2001 to the Los Angeles County Flood Control District (LACFCD), Los Angeles County, and 84 cities within the district to regulate stormwater and urban runoff discharges. The permit required that monitoring stations be set up in seven watersheds, including the San Gabriel and Los Angeles rivers, to ensure that the stormwater discharges were not violating water quality standards.
In seeking Supreme Court review, the LACFCD said the appellate court erred in finding that pollutants flowing from channelized sections of the San Gabriel and Los Angeles rivers into naturally occurring portions of the rivers constituted discharges in violation of permit requirements (Los Angeles County Flood Control District v. NRDC, U.S., No. 11-460, cert. granted 6/25/12; 122 DEN A-4, 6/26/12).
“Nothing in the statutory or regulatory scheme concerning municipal storm sewers suggests that a portion of a river channelized for flood control purposes that merely transfers water from one part of the river to another can constitute a point source,” the Los Angeles County Flood Control District said in its brief filed Sept. 6 in support of its petition for review.
The Natural Resources Defense Council and the Santa Monica Baykeeper sued the flood control district in 2008 for alleged violations of the NPDES stormwater permit using monitoring stations data as evidence. But the U.S. District Court for the Central District of California concluded the environmental groups could not prove the district was solely responsible for causing the discharges in excess of permit terms.
The Ninth Circuit overruled the district court and held the LACFCD liable under its NPDES permit, saying the monitoring stations located in the channelized portions of the rivers detected discharges into the remainder of the river, violating water quality standards.
In a friend-of-the-court brief filed Sept. 13 in supprt of LACFCD, the League of California Cities, the National League of Cities (NLC), and the California State Association of Counties said the Ninth Circuit “mischaracterized” the function of the concrete channelized portions of both rivers, which is to direct the flow of water.
Although the channelized portions are part of the municipal separate storm sewer systems, the groups said, these structures are responsible for directing floodwater, not for adding pollutants into the rivers.
Moreover, the groups said in the brief that the Ninth Circuit assumed that the polluted stormwater passed through the monitoring stations in the channelized portions of the river before exiting into the river through outfalls, or outlets where stormwater is discharged from storm drains into the rivers.
“This conclusion is erroneous” because the monitoring stations were located in the rivers themselves, the NLC brief said.
In a brief filed Oct. 29 in response to the petition for Supreme Court review, NRDC maintained that the flood control district is excusing itself from liability under Miccosukee. The NRDC said the LACFCD remains liable under the Clean Water Act because its municipal separate storm sewer system did discharge into the rivers pollutants that the monitoring stations detected in excess of authorized permit levels
Vermont Law Professor Patrick Parenteau told BNA that “there is no 'Miccosukee' issue.”
He did not say that the Ninth Circuit erred or mischaracterized. Rather, he said that “the Ninth Circuit was confused about where the monitoring station was located in relation to the discharges from the stormwater system.
Parenteau said the issue is one of permit interpretation, not whether there is a "discharge from one water body to another."
John Cruden, president of the Environmental Law Institute and a former deputy assistant attorney general for environment and natural resources, said the case would have been a “straightforward case of permit noncompliance” had the monitoring stations been placed right next to the outfall.
“This would not be a tough case, entirely straightforward. Facts are that the monitoring station was downstream from the outfall, and the Ninth Circuit got the facts wrong in saying that the monitoring station was next to the outfall,” Cruden said.
That said, Cruden said the issue of noncompliance does not go away. That position was reiterated by the U.S. Solicitor General Donald Verrilli Jr. in a friend of the court brief in support of neither party.
Verrilli said that although the appellate analysis was faulty, “the court's ultimate finding of liability is not necessarily incorrect.”
“In either event,” he added, “it would be appropriate for this Court to vacate the judgment of the court of appeals and remand for further proceedings to determine whether the petitioner is liable for violating its NPDES permit.”
The National League of Cities brief is available at http://tinyurl.com/bwkwler.
The NRDC brief is available at http://sblog.s3.amazonaws.com/wp-content/uploads/2012/11/11-460-bs.pdf.
The U.S. solicitor general's brief is available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-460_neutralamcuusa.authcheckdam.pdf.
The LACFCD brief is available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-460_pet.authcheckdam.pdf.
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