Another Edition of “No Addition”: Supreme Court Applies Precedent to Confirm Plaintiffs’ Concession That Movement of Water Within River Channel Was Not a “Discharge”

The answer you get depends on the question you ask. That’s the take-home lesson from the Supreme Court’s decision in Los Angeles Flood Control District v. Natural Resources Defense Council. All parties agreed on the answer to the specific question on which the Court granted certiorari. The Court, applying its own 2004 precedent, said they were correct — there was no “discharge” that violated the District’s permit because the flows in question simply went from one part of the same river system to another. The Court never reached the alternative ground for liability urged by the plaintiffs because it went beyond that narrow question. The result? A reversal and a win for the District on essentially procedural grounds.

The Clean Water Act requires a permit for discharges from some municipal stormwater systems. The District has had such a permit for discharges from its stormwater sewers into the Los Angeles and San Gabriel Rivers since 1990. Under the statute’s citizen suit provision, NRDC and the Santa Monica Baykeeper sued the District, alleging, among other things, that water-quality measurements from stations within the rivers demonstrated violations of the District’s permit. The District Court granted summary judgment to the District, pointing to “thousands of permitted dischargers” to the rivers and holding that the record was insufficient to show that the District had violated its permit. The Ninth Circuit reversed in relevant part, holding that the District was liable for discharges from certain concrete-lined portions of the river over which it exercised control into downstream portions of the rivers that had no concrete linings.

The Supreme Court granted the plaintiff’s petition for certiorari, but on the narrow question of whether a Clean Water Act “discharge of pollutants” occurs when polluted water flows from one portion of a river, through a concrete channel or other engineered improvement in the river, into a lower portion of the same river. The grant of certiorari was curious since all of the parties, as well as the United States as amicus curiae, agreed that the answer to the question was “no.” Indeed, the Court had already held in 2004, in South Florida Water Management District v. Miccosukee Tribe, that the transfer of polluted water between two parts of the same water body did not constitute a discharge of pollutants under the statute, which defines the term as “any addition of any pollutant to navigable waters from any point source.” In Miccosukee, the Court had held that no discharge occurred when water was removed from a water body, transported through a pump station, and returned to the same water body. The case at hand was even easier, for the polluted water in question never even left the rivers; it simply flowed from a concrete-lined portion of a waterway to an unimproved portion of the same waterway. Therefore, in an 8-0 decision by Justice Ginsburg (Justice Alito concurred in the result), the Court reversed and remanded the case to the Ninth Circuit.

The Court’s very brief (five-page) decision contains the seeds for plenty of future litigation between the parties. By focusing exclusively on the narrow question presented, the Court avoided wading into complicated factual disagreements among the parties involving the location of the monitoring stations and the interpretation and legal significance of the monitoring results. In addition, as the Court noted in a footnote, shortly before oral argument the District was issued a renewed permit that, unlike its previous permit, required end-of-pipe monitoring of discharges from the stormwater system instead of only in-stream monitoring. Look for another lawsuit from NRDC and the Baykeeper when the District begins to report the results of that monitoring.

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