The U.S. Supreme Court agreed with the Los Angeles County Flood Control District that it did not have to implement special pollution abatement plans for water flowing from concrete-encased storm water channels into more natural portions of the Los Angeles and San Gabriel rivers.
The Supreme Court ruled the U.S. Circuit Court of Appeals in San Francisco erred when it agreed with environmental activist groups that water flowing from one portion of a river to another qualifies as a “discharge” under the federal Clean Water Act subject to pollution restrictions.
‘Does Not Qualify’ as Discharge
Writing for the Supreme Court in a unanimous decision, Justice Ruth Bader Ginsburg explained there is only a discharge when a pollutant is added to the river; not when water flows from one portion of a river to another.
“No pollutants are ‘added’ to a water body when water is merely transferred between different portions of that body,” Ginsburg observed.
“No discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another,” she explained.
Ginsburg illustrated her point with cooking analogy.
“If 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,” wrote Ginsburg, quoting from a previous Supreme Court decision.
As a result, Ginsburg noted, “the flow of water from an improved portion of a navigable water into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants.”
NRDC Pledges to Continue Fight
“Technically, the Court only found 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 Clean Water Act,” Steve Fleischli, water program director for the Natural Resources Defense Council, told Environment & Climate News. “The decision doesn’t close the door on our enforcement efforts against the county, and it doesn’t limit the county’s obligation to comply with the Clean Water Act.”
“The matter has been remanded to the Ninth Circuit,” Fleischi added. “We will continue to seek to hold the Los Angeles County Flood Control District responsible for cleaning up its water pollution. Until the County addresses this problem, stormwater pollution will continue to sicken up to 1 million people in Southern California every year, while local government avoids basic infrastructure solutions that will protect people, preserve water quality and increase water reserves.”
Suit Was ‘Frivolous’
“Only in California could a case this convoluted arise,” said Maureen Martin, senior fellow for legal affairs at The Heartland Institute, which publishes Environment & Climate News.
“At issue was a permit issued to the county after a process generating a record of 80,000 pages and the testimony of 29 witnesses,” said Martin. “That permit was upheld after five years of litigation in state court concerning its terms. Since the permit itself couldn’t be challenged, the Natural Resources Defense Council filed a citizens suit seeking to impose liability on the county for Clean Water Act violations of the permit terms.”
Martin explained, “NRDC won in the Ninth Circuit, which ruled storm water flowing from a channelized portion of a body of water into a natural part of the same body of water amounted to a discharge of pollutants. This appellate ruling is flatly contradicted by an earlier Supreme Court ruling holding this event does not violate the Clean Water Act.
“In a rare unanimous ruling the Supreme Court reversed [the Circuit Court decision] and held its earlier ruling applies. The NRDC case was frivolous, and the county should seek sanctions,” she concluded.
Alyssa Carducci ([email protected]) writes from Tampa, Florida.