Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc.

Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S.  Ct.  710 (2013) (holding the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway is not a discharge of a pollutant under the Clean Water Act).

The problem surrounds a Los Angeles storm sewer system.  The Los Angeles County Flood Control District (“Los Angeles”) operates a drainage system that collects, transports, and discharges storm water which federal regulation 40 Code Fed. Reg. § 122.6(b)(8) defines storm water as storm water runoff, snowmelt runoff, and surface runoff and drainage.  Due to the highly polluted nature of the storm water, the Clean Water Act (“CWA”) required the drainage systems’ operators to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit before discharging storm water into navigable waters.  Los Angeles obtained a NPDES permit in 1990 and renewed the same permit several times.

Respondents, Natural Resources Defense Council (“NRDC”) and Santa Monica Baykeeper filed a citizen suit in District Court alleging Los Angeles violated water-quality measurement requirements under its NPDES permit.  Even though water in the storm sewer system showed levels of pollutant discharges exceeding statutory limits, the District Court for the Central District of California granted summary judgment in favor of Los Angeles.  The district court found many entities contributed permitted discharges to the water, not only Los Angeles.  The Ninth Circuit reversed in part, holding a discharge of pollutants occurred under the CWA when polluted water left the concrete channel system in Los Angeles and entered downstream waterways lacking concrete linings.  Because Los Angeles controls the concrete portions of the system, the Court of Appeals held it responsible for discharges leaving its system into those unprotected from concrete lining.

The US Supreme Court (“Court”) granted certiorari and considered only one question: under the CWA, does the flow of storm water out of a concrete channel within a river qualify as the discharge of a pollutant? The Court reversed the Ninth Circuit by following the precedent set by South Fla. Water Mgmt Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) wherein the Court held pumping polluted water form one part of a water body into another part of the same body is not a discharge of pollutants under the CWA.

The language of CWA defines “discharge of a pollutant” as the addition of any pollutant to navigable waters from any point source.  The Court pointed to a common understanding of the word “add” and explained that pollutants are not “added” when water is merely transferred between different portions of that water body.  If an addition were to be a discharge, then the water would have to be transferred between two meaningfully distinct water bodies.

Ultimately, the Court noted that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a discharge of pollutants under the CWA.  Therefore, the Court reversed the Ninth Circuit and remanded the case for further proceedings.