Los Angeles water district wins stormwater dispute

The Supreme Court ruled unanimously today in favor of a Southern California water district over whether it is liable for water pollution in two rivers.

The Los Angeles County Flood Control District had insisted that it could not be held accountable for polluted stormwater that flows into the Los Angeles and San Gabriel rivers from multiple municipalities in the area.

The court held in a brief five-page decision that the San Francisco-based 9th U.S. Circuit Court of Appeals was wrong in ruling for environmental groups based on the finding that there could be a "discharge" in Clean Water Act terms from one part of a river to another. Under a Supreme Court precedent from 2004, transporting water between two sections of the same water body doesn't constitute a discharge.

The environmental groups, the Natural Resources Defense Council and Los Angeles Waterkeeper, want to hold the district responsible for pollution in the rivers that exceeds the limits set under a Clean Water Act permit -- since updated and reissued -- that the flood district along with 84 neighboring cities and the County of Los Angeles are party to.

The district argued that it shouldn't be held liable just because the water ran through sections of the rivers that had been encased in concrete channels for flood control purposes (Greenwire, Nov. 27, 2012).


In today's ruling, the Supreme Court agreed that the 9th Circuit had interpreted the facts incorrectly.

Justice Ruth Bader Ginsburg, writing on behalf of the court, noted that the 9th Circuit ruling was "inconsistent" with the 2004 precedent, a case called South Florida Water Management District v. Miccosukee Tribe of Indians.

Based on the language of the Clean Water Act, there is only a discharge if a pollutant is added to the river from a point source, Ginsburg noted in summarizing the earlier ruling.

It follows, Ginsburg wrote, "that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another."

As a result, "the flow of water from an improved portion of a navigable water into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants," she added.

All of the other eight justices agreed with the outcome, although Justice Samuel Alito only concurred in the judgment and did not sign on to Ginsburg's opinion.

The court declined to reach an alternative argument made by the environmental groups: that the monitoring data was sufficient by itself to establish liability. That argument was rejected by the 9th Circuit.

NRDC said it would continue its efforts to force the district to improve water quality in the two rivers.

Steve Fleischli, an attorney who heads NRDC's national water program, said he wasn't sure yet what options the plaintiffs have. But he noted that under the terms of the new permit, the district is required to monitor its own discharges. That data could be the basis for a new lawsuit altogether, he said.

"We are going to do a little more research to see what options are available," Fleischli said.

Timothy Coates, the district's Los Angeles-based attorney, said his client is committed to improving water quality and that the terms of the new permit would help achieve that goal.

Today's ruling was "very straightforward," Coates added.

Click here to read the ruling.

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