Why the Supreme Court granted certiorari in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., 673 F.3d 880 (9th Cir. 2011), is a mystery. The Court declined certiorari on one Clean Water Act (CWA) question presented in the petition, but then granted it on a second, which is unlikely to be resolved without actually reaching at least some of the touchy issues that may have led it to decline certiorari on the first question. Regardless, the case is particularly important for municipal governments that are attempting to address flooding and stormwater management challenges in a regional context. The Court heard oral argument on December 4.
The County of Los Angeles, the Los Angeles County Flood Control District (District), and 84 cities in southern California are co-permittees on a Municipal Separate Storm Sewer System permit (commonly known as an “MS4 permit”) issued under the Clean Water Act National Pollutant Discharge Elimination System (NPDES) program. Generally speaking, an MS4 is a system of conveyances that collects stormwater runoff and discharges it from a collection of outfalls to “navigable waters” within the meaning of the CWA. Conceptually, the MS4 taken as a whole is a point source under the CWA. The regional permit at issue in the case covers a vast area of southern California and includes thousands of miles of storm drains and hundreds of miles of open channels, many portions of which have been engineered (often concrete lined) for stormwater management and flood control purposes. The NPDES permit authorizes the permittees to discharge stormwater runoff from the MS4 into navigable waters, but prohibits discharges that violate specified water quality standards.
The permit also requires the District to monitor and report on pollutant levels of runoff flowing past seven “mass emissions stations” within the MS4. Two of the stations are located in concrete channelized portions of the Los Angeles and San Gabriel Rivers, and data collected at those stations detected pollutants in excess of permit standards. Both rivers were confined long ago by concrete channels to prevent severe storm flows from flooding neighboring urban areas. Indeed, Justice Kennedy described the Los Angeles River as a 50-mile stretch of concrete and steel in his famous concurrence in Rapanos v. United States, 547 U.S. 715,769–770 (2006).
The Natural Resources Defense Council (NRDC) sued, claiming that the District and the County of Los Angeles were in violation of the permit based upon exceedences at the mass emissions stations in the concrete portion of the two rivers. The district court granted summary judgment for the defendants. The court held that the mass emissions data “merely reflects water passing by the stations” and that in order for the District to be in violation, it must be discharging pollutants to “navigable waters” from a point source. But the plaintiffs had not provided evidence to establish that the rivers below the stations were distinct bodies of water from the MS4 above the stations. Thus, there was no evidence of a discharge. NRDC v. County of Los Angeles, No. CV 08-1467 AHM, at *11 (Mar. 2, 2010).
The Ninth Circuit reversed, holding that, under the CWA, a discharge of a pollutant “from a point source occurred when the still-polluted storm water flowed out of the concrete channels where the monitoring stations are located, through an outfall, and into the navigable waterways. . . . the precise location of each outfall is ultimately irrelevant because there is no dispute that [the] MS4 eventually adds stormwater to the Los Angeles and San Gabriel Rivers downstream from the Monitoring Stations.” 673 F.3d at 900. Further, because the monitoring stations are located in concrete portions of the MS4 controlled by the District, the District “is discharging pollutants from the MS4 to the Los Angeles River and San Gabriel River in violation of the Permit.” Id. at 901.
The District sought certiorari on two questions: (1) whether channelized portions of the Los Angeles and San Gabriel Rivers that are part of an MS4 remain “navigable waters” under the CWA, and (2) whether water passing from the engineered portions of the river to the natural sections of the same river constitutes a regulable discharge that requires an NPDES permit under the Clean Water Act, notwithstanding the Court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), that transfer of water within a single body of water cannot constitute a “discharge” for purposes of the act. The Court then requested the views of the U.S. Solicitor General, who advised it not to take the case in part because it was too fact intensive.
The Court declined the first question, but took the second. One can imagine that the Justices may have declined the first because their most recent attempt to clarify the meaning of “navigable waters” resulted in a 4–1–4 split that still has people scratching their heads. Rapanos v. United States, 547 U.S. 715 (2005). But, in addressing the second question the Court will necessarily intrude into territory it sought to avoid by declining the first. That is because the statute requires an NPDES permit for the “discharge of a pollutant,” defined as the “addition of any pollutant to navigable waters from a point source.” 33 U.S.C. §§ 1311(a) and 1362(12). To be a regulable discharge, the pollutant has to move from a point source to “navigable waters.” In this case, the alleged pollutant is moving from the engineered portions of the natural river to the (un-engineered) natural river. So the key legal question that everyone anticipated would be addressed was whether the engineered portion of the Los Angeles River is a “point source” or a “navigable water.”
It now appears that the answer to the second question in the certiorari petition is “No.” Petitioner, the County of Los Angeles, and respondent, the NRDC, agreed that the answer is “no.” The Solicitor General also agreed that this was the proper answer to the narrowly framed question. Thus, oral argument focused on what, if anything, was left of the case. Petitioner argued that the Court should simply reverse the Ninth Circuit and end the case. The NRDC urged that the Court affirm the Ninth Circuit’s decision on a grounds not raised in the certiorari petition (NRDC did not file a cross-petition). The Solicitor General suggested that the Court remand to the Ninth Circuit for further proceedings, whatever those might be.
Editor’s Note: As this article went to publication, the Supreme Court announced its unanimous judgment, reversing the Ninth Circuit and remanding the case back to the Ninth Circuit. Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc., No. 11-460, 2013 U.S. LEXIS 597 (Jan. 8, 2013). The Court declined the invitation of counsel for the Natural Resources Defense Council to consider affirming the Ninth Circuit’s decision on a grounds not raised in the petition for certiorari.