Justices weigh Los Angeles stormwater dispute

The Supreme Court appeared to be leaning today toward ruling in favor of a Southern California flood control district in a dispute over whether it is liable for water pollution in two rivers.

But it is unclear whether the court will give the Los Angeles County Flood Control District a decisive win or send the case back to an appeals court for further consideration.

The district claims that it should not be held liable for polluted stormwater that flows into the Los Angeles and San Gabriel rivers (Greenwire, Nov. 27).

In March 2011, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in favor of the Natural Resources Defense Council (NRDC) and Santa Monica Baykeeper (now renamed Los Angeles Waterkeeper) in finding that the flood control district -- an independent agency overseen by the Los Angeles County Board of Supervisors -- was responsible for Clean Water Act violations.

Monitoring revealed pollution exceeding limits set under a Clean Water Act permit that the flood district, 84 neighboring cities and the County of Los Angeles are party to.


The district maintains it should not be liable because it merely controls sections of the rivers for flood control purposes. Pollutants, originating from other municipalities in the Los Angeles area that drain into the rivers, merely pass through the sections it oversees, the district's lawyers say.

The main legal question in Los Angeles County Flood Control District v. Natural Resources Defense Council is whether there was a "discharge" -- in Clean Water Act terms -- into the rivers downstream from where the emissions monitoring stations are located.

The court seems likely to rule for the district on that key point.

Instead, the bulk of today's argument focused on whether the court should reverse the 9th Circuit or vacate the appeals court ruling for further arguments on whether the district could still be liable under the terms of the permit. That is what both NRDC and the Obama administration asked the court to do.

Several of the justices expressed doubt about such an approach on the grounds that the permit itself is not clear on how liability should be assessed.

Justice Antonin Scalia noted that under the language of the current permit, it is "impossible" to determine which of the parties are responsible.

"Whose fault is that?" he asked.

Justice Ruth Bader Ginsburg made a similar point.

"What's the purpose of having the monitoring stations if nothing can be done?" she said.

Los Angeles attorney Timothy Coates, arguing on behalf of the district, seized on the mood on the bench by noting that under a recently approved new permit, there will be more monitoring at outfall sites, so that in the future it will be possible to determine each permit holder's contribution to overall pollution levels.

Justice Stephen Breyer said that approach seemed to be "the rational way to proceed."

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