July 5, 2012

SCOTUS set to hear Los Angeles River case next term

By Damien M. Schiff Senior Attorney

Regulation of stormwater under the Clean Water Act has a contentious history.  Last month, the Supreme Court granted cert in two cases dealing with stormwater regulation under the Clean Water Act.  One case concerns whether stormwater runoff from forest logging roads can be regulated under the Act (an issue we at PLF have been involved in).  The second concerns whether the owner of  stormwater channel has to take steps to reduce the pollutants in the stormwater that his channels convey to downstream reaches.

The case, Los Angeles County Flood Control District v. Natural Resources Defense Council, deals principally with the Los Angeles River.  The District operates a stormwater system, part of which includes a concrete-channelized section of the LA River.  The enviros sued the District under the Clean Water Act, alleging that the District is guilty of discharging polluted stormwater into the lower part of the LA River, because the District’s improved concrete channel carries polluted stormwater from other parts of the County.  The District argued that it wasn’t responsible for the polluted stormwater, and that its concrete channel is simply one segment of a larger, continuous waterbody—i.e., the L.A. River.

The Supreme Court granted review on the question of whether the District’s concrete channel should be considered the same as the unimproved portions of the LA River above and below the channel.  If the channel is considered the same, then the District is not liable.  Clean Water Act liability is based on the discharge of a pollutant, which in turn requires the “addition” of a pollutant.  And the Supreme Court ruled in 2004 in South Florida Water Management District v. Miccosukee Tribe of Indians that there is no addition of a pollutant where the giving and receiving waterbodies are not meaningfully distinct.

The LA stormwater case will be an important one for stormwater management agencies throughout the country.  It will also give the Supreme Court an opportunity to hone its Miccosukee rule.  If NRDC’s and the Ninth Circuit’s view is upheld, then these agencies will have to implement new and costly control measures to avoid further liability.

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