Los Angeles County Flood Control District v. NRDC

The U.S. Supreme Court released a ruling in early January 2013 in Los Angeles County Flood Control District v. Natural Resources Defense Council, with the High Court confirming that water flowing from one portion of a waterway through an artificial channel into another portion of the same waterway does not qualify as a “discharge” under the CWA.  Accordingly, these types of flows from an improved portion of a waterway to an unimproved portion do not require a National Pollutant Discharge Elimination System (NPDES) permit.  In making this decision, the Court also reaffirmed its 2004 ruling in South Florida Water Management District v. Miccosukee Tribe of Indians that the transfer of already polluted water between two parts of the same water body does not create a discharge under the CWA or require an NPDES permit.

The decision is consistent with NACWA’s long-standing position on the water transfers issue and with arguments from a brief submitted in the case by NACWA, New York City, and a number of other water associations which encouraged the Court to uphold its previous 2004 position.  NACWA is pleased with the Court’s decision and believes it is an important legal victory for the clean water community.

NACWA’s legal position, including in prior litigation before the Supreme Court and multiple federal appellate courts, has been that such water transfers are not discharges under the plain language of the CWA and thus do not require an NPDES permit.  The brief submitted in the case outlines why water transfers do not constitute a “discharge” under the CWA, and why the permitting of such transfers would be inconsistent with the requirements of the Act.  The brief also explains that many municipal clean water agencies rely on such transfers for safe and effective management of stormwater, floodwater, and the public water supply.  It further argues that requiring CWA permits for these kinds of transfers would create significant regulatory and economic burdens for clean water agencies, and would unnecessarily harm their ability to manage stormwater successfully.

• NACWA/Municipal Amicus Brief , 09/13/2012
• LA County Opening Brief , 09/06/2012
• United States Brief , 09/13/2012
• NRDC Brief , 10/29/2012
• LA County Reply Brief , 11/20/2012
• Supreme Court Decision , 01/8/2013

NRDC v. Los Angeles County Flood Control District

The U.S. Supreme Court remanded the case to the Ninth Circuit for consideration of the remaining issue of whether the Flood Control District's monitoring data can be used to establish liability for violations of the municipal separate storm sewer system (MS4) permit for its drainage system.

On August 8, 2013, the federal appeals court issued a unanimous ruling that as a matter of law, the Los Angeles County Flood Control District is liable for violating its MS4 discharge permit when the monitoring data it collects shows permit violations. The ruling was based on the specific language in Defendants’ MS4 permit relating to discharge prohibitions and monitoring and reporting programs that required the Permittees to monitor their LA MS4 discharges, inter alia, via mass-emission monitoring stations.  The court held “Because the results of County Defendants’ pollution monitoring conclusively demonstrates that pollutant levels in the Los Angeles and San Gabriel Rivers are in excess of those allowed under the Permit, the County Defendants are liable for permit violations as a matter of law."

On January 24, 2014, the Flood District and Los Angeles County filed a certiorari petition    with the U.S. Supreme Court asking the court to overturn the August 8 decision arguing, inter alia, that the ruling "eliminates the CWA's requirement that there be proof of a 'discharge' that adds pollutants to a navigable waterway because it imposes liability on a permittee based solely on results from downstream monitoring, even though that monitoring includes pollutants in the river from all upstream sources, natural, permitted and unpermitted, including sources that were never in the District's or County's MS4." Procedurally, Los Angeles argues that the Ninth Circuit had no authority to revisit its earlier opinion because NRDC never petitioned for rehearing or certiorari after the Ninth Circuit rejected their monitoring-based argument in 2011. Los Angeles also contends that as a policy matter, the ruling creates nationwide uncertainty for participants in multi-jurisdiction stormwater permits such as the one that joins the Los Angeles stormwater system with other California jurisdictions. NACWA is not actively involved in this case on the remand issues.

• Order, NRDC v. County of Los Angeles, et al. , Mar. 10, 2011 (decision finding that MS4 permittee is responsible for pollutants that are conveyed through MS4 system even if evidence of pollutants is established prior to discharge point to navigable waterway)
• Order, NRDC v. County of Los Angeles, et al. , 9th Cir., Aug. 8, 2013 (decision finding LA County Flood District liability for MS4 discharge permit violations)
• Certiorari Petition, Los Angeles County Flood District, et al.   U.S. Supreme Court,  Jan. 24, 2014