WATER POLLUTION:

L.A. asks Supreme Court to take up stormwater discharge case

Los Angeles County on Friday asked the Supreme Court to hear a long-running dispute with environmentalists over stormwater discharges that run through the county's drainage system and into Southern California rivers.

The county wants the high court to reverse an August decision by the 9th U.S. Circuit Court of Appeals that said it is liable for discharges into its massive system that exceed its federal Clean Water Act permit.

If justices hear the case, it will mark the second time the case has made its way to the high court. A year ago, the Supreme Court reversed the 9th Circuit, siding with Los Angeles' flood control district on a different issue presented in the case.

After that ruling, the 9th Circuit took up the case again and ruled in favor of the Natural Resources Defense Council and Santa Monica Baykeeper. The San Francisco-based panel unanimously held that data from the water district's monitors that showed pollution levels exceeding what was allowed under its National Pollutant Discharge Elimination System (NPDES) permit made the county and district liable for violating the Clean Water Act (E&ENews PM, Aug. 8, 2013).

In its court filing, the county argues that the 9th Circuit fundamentally mischaracterizes the nature of the water pollution permit for Los Angeles' huge system of gutters, catch basins and stormwater drains.

That system contains about 500 miles of open channels and 2,800 miles of storm drains. The county says the permit was issued to the county, the flood control district and 84 cities whose runoff contributes to the system. Under the 9th Circuit's ruling, the county would be liable for discharges from those other entities, not the county's.

"The permit was issued to the 86 separate entities as co-permittees, and under its terms, each permittee was responsible only for its own discharge," the county wrote.

Environmentalists brought the lawsuit in 2008, claiming that the water district's downstream monitoring from 2002 to 2008 showed more than 100 instances of pollution exceeding limits allowed by the 2001 permit.

When the case reached the Supreme Court last year, justices focused only on whether water flowing from one portion of a river through a concrete channel to another point of the same river constitutes a discharge under the Clean Water Act. The court held that it did not (Greenwire, Jan. 8, 2013).

The county notes that the Supreme Court declined to address the monitoring issue after the 9th Circuit had addressed it in previous proceedings. Consequently, it also argues in its recent filing that the 9th Circuit should not have revisited the issue.

NRDC said the county's request was an attempt to "shirk responsibility" for cleaning up the pollution.

"We won't solve the problem of urban slobber by continuing to fight over it," said NRDC attorney Steve Fleischli. "It's time for the county to get to work and fix it."

It takes the votes of four justices to grant review of a case. The court will likely consider whether to take up the county's request later this year.

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