Los Angeles River Transfers Within Waterway Do Not Require Permit, Supreme Court Says

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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 rivers.

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 requirements.

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 (2004).

Soup Ladled From One Pot

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, 3/11/11).

Not 'Meaningfully Distinct Bodies'

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 wrote.

“Because the decision below cannot be squared with that holding [Miccosukee], the Court of Appeals' judgment must be reversed,” the Supreme Court concluded.

Questions About Transfer Rule

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 judgment.

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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