The bombshell Supreme Court opinion that wasn’t

A case that could have had explosive implications both on the question of jurisdiction under the Clean Water Act and on the Act’s regulation of stormwater discharges from urbanized areas instead barely registered a fizzle when the United States Supreme Court issued an opinion earlier this year in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc., No. 11-460 (U.S.) (opinion issued Jan. 8, 2013).

The case was initiated when the Natural Resources Defense Council and Santa Monica Baykeeper (together, Plaintiffs) filed a citizen suit against the Los Angeles County Flood Control District (District) and other defendants alleging that water-quality measurements from monitoring stations located within the Los Angeles and San Gabriel Rivers that exceeded water quality standards for a number of pollutants demonstrated that the District was violating the terms of its NPDES permit for stormwater collected, transported, and discharged by its municipal separate storm sewer system (MS4).

The District Court granted summary judgment to the District, finding that Plaintiffs had not produced sufficient evidence to show that the District’s MS4 was the source of pollutants that exceeded the applicable water quality standards. The court reasoned that there are numerous other entities besides the District that discharge to the rivers upstream of the monitoring stations. On appeal, the Ninth Circuit reversed in relevant part, holding that a discharge of pollutants occurred under the Clean Water Act when the polluted water from segments of the rivers engineered with concrete channels for flood-control purposes entered the non-engineered segments of the river downsteam.

The District presented two questions in its cert petition:

  1. Do “navigable waters of the United States” include only “naturally occurring” bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control render the improved portion no longer a “navigable water” under the Clean Water Act?
  2. When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a “discharge” from an “outfall” under the Clean Water Act, notwithstanding this Court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a “discharge” for purposes of the Act?

If the Court had granted cert on the first question and issued an opinion answering that question in the affirmative, the opinion would have severely restricted jurisdiction under the Clean Water Act, as there are no shortage of engineered segments of waterways across the country that would no longer have been subject to regulation under the Act.

The Court, however, only granted cert on the second question, a question that it had effectively already answered in 2004 in the Miccosukee case and upon which all of the parties, as well as the United States as amicus curiae, agreed in their briefs was appropriately answered (again) in the negative. Not surprisingly, the Court held 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 [Clean Water Act].”

The Court declined to take up Plaintiffs’ alternative grounds for affirmance of the Ninth Circuit judgment — that the monitoring system proposed by the District and written into its NPDES permit detected numerous exceedances of water-quality standards sufficient to establish the District’s liability under the terms of the permit, which Plaintiffs argued required the District to address any exceedances detected regardless of whether or not the District’s MS4 was the sole source of the pollutants causing the exceedances.

This was really the only interesting question remaining after the Court easily dispensed with the question upon which it granted review. Even the answer to this remaining question would have been of somewhat limited value, however, because I doubt we will be seeing (m)any permits issued in the future that measure compliance through instream monitoring. Indeed, in a footnote to the opinion, the Court noted that a renewed permit was approved for the District’s MS4 shortly before oral argument in the case, and that, “[u]nlike the District’s prior permit, which required only instream monitoring, the renewed permit requires end-of-pipe monitoring at individual MS4 discharge points.” I can’t say I’m surprised.