Supreme Court upholds definition of "discharge pollutants"
The United States Supreme Court recently opined that a "discharge of pollutants" under the Clean Water Act (CWA) does not occur when polluted water flows from an improved portion of a navigable waterway into an unimproved portion of the same waterway. The Court's decision in Los Angeles County Flood Control District v. Natural Resources Defense Council was unanimous and is significant in that the Court did not expand the definition of "discharge of pollutants," a key term in the CWA.
Los Angeles County Flood Control District (LACFCD) operates a municipal separate storm sewer system (MS4) that collects, transports, and discharges stormwater. MS4 operators must obtain National Pollutant Discharge Elimination System (NPDES) permits before discharging stormwater into navigable waters. Pollution testing in concrete channels in the Los Angeles and San Gabriel Rivers revealed that water quality standards were exceeded. The Ninth Circuit held that LACFCD was responsible for the polluted water that flowed out of the concrete-lined portions of the rivers because LACFCD controlled the concrete channels, regardless of the fact that thousands of other dischargers discharged into the rivers upstream of the concrete channels. Per the CWA, the "discharge of a pollutant" means "any addition of any pollutant to navigable waters from any point source." In South Florida Water Management District v. Miccosukee Tribe the Supreme Court held that an "addition" of a pollutant only occurs if a pollutant is transferred from one "meaningfully distinct" water body into another. In that case polluted water was removed from a canal, transported through a pump station, and deposited into a nearby reservoir. The State and Local Legal Center (SLLC) filed an amicus brief on behalf of the Los Angeles County Flood Control District (LACFCD). The National League of Cities signed onto the League of California Cities' brief.
The SLLC's amicus brief argued that the segments of the rivers above and below the channeled portions of the rivers in this case aren't "meaningfully distinct," so no addition of a pollutant has occurred. The Supreme Court agreed that: "[i]t follows...from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a body of water, simply flows from one portion of the water body to another."
Justice Ruth Ginsburg wrote the Court's opinion. It was unanimous and issued a just a month after oral arguments - all sound indications that the Supreme Court had little difficultly coming to the conclusion that it did in this case.
