Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

Los Angeles County Flood Control District v. NRDC
Supreme Court of the United States
Argued December 4, 2012 Decided January 8, 2013
Full case name	Los Angeles County Flood Control District v. National Resources Defense Council, et al.
Docket no.	11-460
Citations	568 U.S. (more)
Case history
Prior	673 F. 3d 880, 886 (CA9 2011)rehearing denied; 636 F.3d 1235 (9th Cir. 2011)
Holding
The flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a "discharge of a pollutant" under the CWA
Court membership
Chief Justice John Roberts Associate Justices Antonin Scalia · Anthony Kennedy Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito Sonia Sotomayor · Elena Kagan
Case opinion
Majority	Ginsburg J., joined unanimous
Laws applied
U.S. Const. art. III; Clean Water Act

The Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc. (2013) is a U.S. Supreme Court case decided by a 9-0 vote, in which the Natural Resources Defense Council (NRDC) and Santa Monica Baykeeper challenged the Los Angeles County Flood Control District (District) for violating the terms of its National Pollutant Discharge Elimination System (NPDES) permit as shown in water-quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers. The Supreme Court reversed and remanded the Ninth Circuit's ruling on the grounds that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a "discharge of a pollutant" under the CWA.

Parties

Los Angeles Flood Control District

The Los Angeles Flood Control District (District) is the petitioner in this particular case. The District was established upon adoption of the Los Angeles County Flood Control Act in 1915, after a disastrous regional flood occurred. The District's primary purpose is to provide flood protection, water conservation, recreation, and aesthetic enhancement within its boundaries. As of 1985, the responsibilities and authority of the District were transferred to the County of Los Angeles Department of Public Works. The Flood Control District encompasses more than 3,000 square miles, 85 cities in southern California. It includes approximately 500 miles of open channel, 2,800 miles of underground storm drainage pipelines, and an estimated 120,000 catch basins.

The District argued that this case is resolved by the Court’s earlier decision on South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), which determined that transferring water within a single water body does not constitute as a "discharge" according to the Clean Water Act.

Natural Resources Defense Council

The respondent, Natural Resources Defense Council and Santa Monica Baykeeper (collectively NRDC), previously filed a citizen-enforcement action against the District and County in the Central District of California, alleging that the District violated the NPDES permit and the Clean Water Act.

Background

The District operates a "municipal separate storm sewer system" (MS4), which collects and transports stormwater runoff through rivers flowing to the Pacific Ocean. Because stormwater is often heavily polluted from various non-point sources, the Clean Water Act (CWA) and its implementing regulations require certain MS4s to obtain a National Pollutant Discharge Elimination System (NPDES) permit before discharging stormwater into navigable waters. Between 2002 and 2008, the monitoring stations continually detected water pollution levels that exceeded its MS4 permit in its stormwater channel system. Water traveled from a naturally occurring portion of the river, into a human-engineered channel for stormwater drainage. Water quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers indicated that there were exceedances of water quality standards for pollutants including, aluminum, copper, cyanide, fecal coliform and zinc. The District acknowledged that it discharges pollutants through the MS4 but denied complete responsibility, claiming that thousands of other permit-holders whose stormwater channels into the MS4 contributed to these exceedances.

Prior cases

District Court opinion

In 2008, the NRDC sought to impose liability on the District for its permit violations in four rivers: the Los Angeles River, San Gabriel River, Santa Clara River, and Malibu Creek. The District argued that this issue was resolved by the Court’s earlier decision in the South Florida Water Management Dist. v. Miccosukee Tribe (541 U.S. 95) case, which determined that transferring water within a single water body does not does not constitute as a "discharge." The District Court initially denied summary judgment because the evidence did show whether the waterways below the monitoring stations are distinct bodies of water from the MS4 above the monitoring stations and thus, failed to establish whether there had even been a “discharge” from a “point source” within the statutory meanings of those terms. The District Court granted summary judgment to the District on these claims, concluding that the record was insufficient to warrant a finding that the MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations.

South Florida Water Management District v. Miccosukee Tribe of Indians

Southern third of the Florida Peninsula, showing the area managed by the South Florida Water Management District

In this 2004 U.S. Supreme Court case, the Miccosukee Tribe challenged the South Florida Water Management District on an issue related to the operation of a new pump station (referred as "S-9") that transferred water from a concrete canal (referred as "C-11") to a large undeveloped wetland area near (referred as "WCA-3"). The S-9 pump station, C-11 canal and two levees are components of the Central and South Florida Control Project, a project aimed to address drainage and flood control issues in reclaimed portions of the Everglades. Water conveyed through the C-11 canal collected rainwater from a combination of agricultural, urban, and residential land uses. During rain events, stormwater collected in the C-11 canal contains contaminants such as phosphorus and fertilizers from these developed areas. The WCA-3 area is a remnant of the original South Florida Everglades and the District impounds water in this area to conserve fresh water that might otherwise flow directly to the ocean and to preserve wetland habitat. When the water level in C-11 rises above a set level, S-9 begins operating and pumps water out of the canal and empties the water into WCA-3. The phosphorus in the water alters the balance of WCA-3's ecosystem (which is naturally low in phosphorus) and stimulates the growth of algae and plants that are not naturally found in the Everglades ecosystem.

The Miccosukkee Tribe filed suit under the Clean Water Act (Act), which prohibits “the discharge of any pollutant by any person” unless done in compliance with the Act (33 U. S. C. §1311(a)). Under the Act’s NPDES and as established in §1342, dischargers must obtain permits limiting the type and quantity of pollutants they can release into the Nation’s waters. The Act defines “ ‘discharge of a pollutant’ ” as “any addition of any pollutant to navigable waters from any point source” (§1362(12)), and defines “ ‘point source’ ” as “any discernible, confined and discrete conveyance” “from which pollutants are or may be discharged” (§1362(14)). The Tribe claimed that S–9 requires an NPDES permit because it moves phosphorus-laden water from C–11 into WCA–3, but the District contended that S–9’s operation does not constitute the “discharge of [a] pollutant” under the Act. The District Court granted the Tribe summary judgment, and the Eleventh Circuit affirmed.

For the purposes of determining whether there has been "any addition of any pollutant to navigable waters from any point source," the Government contended that all water bodies that fall within the Act's definition of "navigable water" should be viewed unitarily for purposes of NPDES permitting requirements. Since the Act requires NPDES permits only when a pollutant is added to navigable waters, the Government contended that such permits are not required when water from one navigable body is discharged, unaltered, into another navigable water. Nonetheless, because neither the District nor the Government raised the "unitary waters" approach before the Eleventh Circuit or in their briefs respecting certiori, the U.S. Supreme Court declined to resolve the argument here and the unitary waters argument was remanded to the lower court. The District and the Government argued that the C-11 canal and WCA-3 area are not distinct water bodies but are two hydrologically connected bodies that contribute to a single water body. The Tribe disagreed on this point but the Supreme Court did not decide whether the District Court's test is adequate for determining whether C-11 and WCA-3 are distinct because the District Court applied its test prematurely. The U.S. Supreme Court concluded that summary judgment is appropriate only where there is no genuine issue of material fact, but some factual issues remain unresolved in this case. Although the District Court correctly characterized the flow through S–9 as non-natural, it appears that if S–9 were shut down, the water in the C–11 canal might for a brief time flow east instead of west and if S-9 was shut down, the water in the canal would flood and the water within the C-11 basin and WCA-3 would be part of a larger water body. The District Court did not address this issue when it granted summary judgment; therefore further development of the record was found necessary to resolve the question over the validity of the distinction between C-11 and WCA-3 waters and the Government's broader "unitary waters" argument is open to the District on remand.

Appeals Court opinion

The U.S. Court of Appeals for the Ninth Circuit reversed in part, finding that the NRDC was entitled to summary judgment on its claims regarding the Los Angeles River and San Gabriel River because the monitoring stations are located within the MS4 owned and operated by the District. The U.S. Court of Appeals held that the District was liable for the discharge of pollutants that occurred when the polluted stormwater detected at these monitoring stations flowed out of the concrete-lined portions of the rivers, where the monitoring stations are located, into lower, unlined portions of the same rivers. However, with regard to the Santa Clara River and Malibu Creek, NRDC failed to provide adequate evidence for the the District Court to determine if stormwater discharged from the MS4 caused or contributed to exceedances of permitted water quality levels. As such, the NRDC was entitled to summary judgment on the District's liability for discharges into the Los Angeles and San Gabriel Rivers but not the Santa Clara River or Malibu Creek.

Map of the Los Angeles River Watershed

Map of the San Gabriel River Watershed

Supreme Court decision

Issues

The Clean Water Act regulates discharges of pollutants to navigable waters of the United States. This includes discharges of pollutants from municipal stormwater systems. The petition of a writ of certiorari (filed October 11, 2011) posed two questions to the Supreme Court:

1. Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

2. When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

Granting of certiorari

The petition for a writ of certiorari sought to expand the definition of "navigable waters of the United States" to potentially include human engineered improvements, and to also reverse the verdict of the Ninth Circuit based on the Supreme Court's prior ruling in South Florida water Management District v. Miccosukee Tribe of Indians.

On June 25, 2012 the Supreme Court granted a writ of Certiorari and limited to Question 2 set forth in the initial petition for a writ of certiorari.

The Supreme Court granted the certiorari in order to address the Ninth Circuit's verdict which reversed a previous decision and held that the Los Angeles County Flood Control District was liable due to the discharge of pollutants that occurred when polluted water was detected at the monitoring stations as it flowed out through the concrete channel to unimproved portions of the river. The Supreme Court decided to limit its scope to the latter of the two questions, leaving the first to the lower courts.

Arguments

Los Angeles River Bridge

The NRDC and Baykeeper sought to instead argue that the exceedances detected at monitoring stations themselves sufficed in establishing the liability of the Los Angeles County Flood Control District under the Clean Water Act for its upstream discharges. The NRDC and Baykeeper felt that the Court of Appeals came to the correct decision for the wrong reasons in their evaluation of the discharge of pollutants from an improved portion to unimproved portion of the same waters. The NRDC and Baykeeper contended that the exceedances detected at the instream monitoring stations were sufficient to establish the District's liability under the Clean Water Act for upstream discharges. In addition, the NRDC argued that under the terms of the permit, the District had agreed to be jointly and severally liable with its co-permittees for any excess pollution in the river picked up by the monitoring stations. The Supreme Court ruled that their grant of certiorari was only to evaluate the Court of Appeals ruling as it related to the prior standing and "did not address or indicate any opinion on the issue the NRDC and Baykeeper seek to substitute."

Opinion of the Court

The case was argued on December 4, 2012 with a decision being issued on January 8, 2013.

Justice Ginsburg delivered the opinion of the court which held that the flow from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not constitute a "discharge of a pollutant" under the CWA. This was based on the standing of the South Fla. Water Management Dist. v. Miccosukee Tribe. Based on this, the court found that the Ninth Circuit's decision was not in accordance with this hold and reversed and remanded the decision.

Significance of the Case

Some environmental groups express concern that the U.S. Supreme Court decision inappropriately relies on the Court's past decision on the South Florida Water Management Distrcit v. Miccosukee Tribe of Indians case. While the Court was asked to determine whether the transfer of water that arguably contained pollutants from one part of a water body into another part of that same water body needed a permit to discharge pollutants in the Miccosukee case, there is no doubt that municipal storm sewers need permits to discharge into rivers in the Los Angeles Flood Control District v. NRDC case. Outside parties assert that the two situations have nothing in common.

In general, several parties believe that the U.S. Supreme Court's decision is narrow in its scope. However, the reversal of the Ninth Circuit’s judgment against the Los Angeles County Flood Control District in the case implies that local water quality advocates will continue to pressure the local regulator, the Regional Water Quality Control Board, to ensure that the new municipal stormwater permit effectively implements its water quality improvement measures.

Additionally, while the Supreme Court decided against addressing the first question raised in the certiorari, if it had been addressed, it would have further defined "navigable waters" under the CWA.

Some observers of the case contend that there are additional lessons that can be taken from the Supreme Court case. By not defending the decision made by the Ninth Circuit, the NRDC was able to steer the Court's attention to more plausible grounds in an effort to keep the case alive for a remand.

See also

South Florida Water Management District v. Miccosukee Tribe