January 8, 2013

Rivers are rivers

By Anthony L. Francois Senior Attorney

and the water in them is water.  While these tautologies rest on the identity principle, words are not always what they seem when the EPA and the NRDC get hold of them.

Two recent federal court decisions on the scope of the Clean Water Act provide useful examples of the principle that words in statutes have fixed meanings.  To wit: the EPA cannot regulate water as though it were a pollutant, and the NRDC cannot prevail in a citizen suit merely by showing that a river is polluted, without evidence of a discharge to the river.

The first decision, issued by the Virginia Federal District Court on January 3, in Virginia Department of Transportation v. EPA, rules that EPA may not regulate the amount of water allowed to flow into a creek.  The Act only allows the regulation of pollutants discharged into impaired water bodies, but EPA argued that it could use stormwater as a ‘proxy’ for sediment, the actual pollutant impairing the creek.  The district court ruled that the text of the Act clearly answers the question in the negative.  Water is water, not a pollutant.

The second decision was issued today by the unanimous United States Supreme Court, and holds  that the mere flow of polluted water downstream in a river is not a ‘discharge of pollutants’ within the meaning of the Act.  Los Angeles County Flood Control District v. NRDC reverses a Ninth Circuit opinion in an NRDC citizen suit, which found that the District violated the Act based only on data from the LA and San Gabriel Rivers.  A river does not discharge to itself.

Both decisions may have important consequences beyond the specific cases.  Virginia Department of Transportation observes that EPA has recently tried to increase the extent of its authority through the novel approach of using stormwater flow as a proxy for sediment, and that three other legal challenges to this expansion remain pending.  The Supreme Court’s holding in LA County Flood Control District is narrow, and the case is remanded to the Ninth Circuit for further proceedings, but the holding might be applied to limit citizen suits under the Act where the only evidence is instream water quality data that does not reflect an actual discharge.

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