June 27, 2013 Articles

Chasing a Red Herring Through the District, Circuit, and Supreme Courts

The specific facts of a case can matter less than making sure the court understands the controlling law and regulations.

By Alexandra Campbell-Ferrari

In January 2013 the U.S. Supreme Court issued its decision in NRDC v. LA County Flood Control District, et al. 133 S. Ct. 710 (2013). On cert, the Court was asked to determine whether the movement of water from a city storm-water system, through a station that measures the levels of pollutants and back into the storm-water system, qualifies as a “discharge” as defined in the Clean Water Act (CWA) and related case law. The real question is, did the Supreme Court need to make that determination? The short answer: no. The Supreme Court should not have accepted this case for decision.

The Clean Water Act prohibits discharges of pollutants into waters of the United States unless the discharger has a permit. Once the permit is issued, the permittee is required to comply with the terms of the permit. The permit issued to the L.A. County Flood Control District authorized the discharge of effluent, but prohibited discharges that “caused or contributed” to violations of the water-quality standards. The permit required that compliance with the stated water-quality standards be monitored at seven specifically identified in-stream mass-emission stations. Data collected at four mass-emission stations established that the dischargers were causing and contributing to violations of the water-quality standards, and such exceedances were acknowledged by the district. But the county argued that it had not violated the permit because the violations were not measured at a “discharge” point. Therefore, the district court, circuit court, and U.S. Supreme Court took up the question of whether there was a discharge at the mass-emission stations, a question that did not need to be answered. The district added a proximity element that neither Congress nor the permitting authority intended to include, thereby allowing the district to avoid liability.

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