Concrete channel section of the Los Angeles River

Concrete channel section of the Los Angeles River (source http://www.theriverproject.org)

It’s always good to get a new Supreme Court decision on the Clean Water Act, even a short and sweet one!  On January 8, 2012, the United States Supreme Court issued a five-page decision regarding the meaning of a “discharge of pollutants” under the Clean Water Act (CWA). Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., No. 11-460. The Los Angeles Flood Control District had a CWA NPDES permit for its extensive Municipal Separate Stormwater Sewer System (MS4), which carries urban runoff containing multifarious pollutants from local storm drains to inland rivers and eventually to ocean waters. (For an interesting overview of the Los Angeles River and the concrete channels that carry it through the heart of Los Angeles, visit The River Projects website.) No treatment plant cleans the runoff before it enters the receiving waters. The District’s NPDES permit prohibited discharges from the MS4 that would cause or contribute to the violation of water quality standards. The permit also set forth a water-quality monitoring program involving seven monitoring stations, two of which were located in the Los Angeles River and the San Gabriel River downstream from numerous MS4 outfalls. Notably, the sections of these rivers in which the monitoring stations were located were “concrete channels,” constructed for flood-control purposes, which were owned and operated by the District as part of the MS4. Monitoring data from the monitoring stations showed that water quality standards had repeatedly been exceeded for a number of pollutants.

The district court held plaintiffs had not produced sufficient evidence that the storm-water discharges from the District’s upstream outfalls—as opposed to discharges from the many other upstream sources—contained the standards-exceeding pollutants detected at the downstream monitoring stations. On appeal, the Ninth Circuit reversed, concluding the relevant “discharge” occurred when the polluted water detected at the monitoring stations flowed out of the concrete channels into the portion of the river without concrete lining.  673 F.3d 880, 900 (9th Cir. 2011). When pollutants were detected, the Ninth Circuit held, they had not yet exited the “point source” (i.e., the concrete channel controlled by the district) into navigable waters.

The Supreme Court granted certiorari on the limited question of whether a “discharge of pollutants” occurs when polluted water flows from one portion of a river that is a navigable water of the United States, through a concrete channel or other engineered improvement in the river, and then into a lower portion of the same river? In answering the question in the negative, the Court relied largely on its 2004 holding in S. Fl. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), that the transfer of polluted water between two parts of the same water body does not constitute a “discharge of pollutants” under the CWA. Polluted water flowing from improved sections of the Los Angeles and San Gabriel Rivers to unimproved sections did not “add” any pollutants to the waters, the Court held. As such, there could be no “discharge of pollutants” as defined by the CWA. As the Court wryly observed:

“[I]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘added’ soup or anything else to the pot.”

Justice Ginsburg delivered the opinion for a unanimous Court; Justice Alito concurred in the judgment without opinion.

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