Clean Water At The Supreme Court

This is a guest blog from American Rivers intern Genevieve Meller.

Los Angeles River, CA

Los Angeles River, CA | USACE, Los Angeles District

I was really excited to attend oral arguments at the Supreme Court last Tuesday as there was a clean water case on the docket. The oral argument session over Los Angeles County Flood Control District v. Natural Resources Defense Council was unique in that when each side answers the question posed, they agree.

The question for which the Court granted certiorari (the process by which the Supreme Court calls the proceedings of a lower court up for review) asked whether water flowing from one portion of a naturally occurring river, through a channel constructed for flood control, and subsequently back into a lower portion of the same river could constitute a discharge under the Clean Water Act. Both sides agree that the answer is no.

The case began when monitoring stations in the Los Angeles and San Gabriel Rivers recorded pollution levels higher than those allowed under the District’s National Pollutant Discharge Elimination System (NPDES) permit. This permit system is a requirement of the Clean Water Act and requires facilities that create a point-source of pollution to obtain a permit with the goal of reducing their overall pollutant discharges.

The District manages the many concrete channels in LA County that are designated as flood control improvements. When monitoring sites below two of these channels recorded permit exceedences, our colleagues at the Natural Resources Defense Council (NRDC) sued the District, asserting that stormwater pollution from LA County had contributed to these permit violations and per the Clean Water Act, the District was then responsible for clean-up. The District responded that there was no way to determine the origins of any pollution, so they could not and should not be held accountable, as their NPDES permit only made them liable for pollution of their own creation.

The result at the Supreme Court was that rather than argue two sides of the same question, each party argued what they thought the question should be. The District held that the question still remained if they were even responsible for the pollution exceedences, while NRDC argued that anyone who contributes to an exceedence is liable under the Clean Water Act, and so the question had to be how to appropriately hold the District accountable. The Assistant to the Solicitor General argued a third question, which simply asked the Court to vacate the case, on the grounds that the 9th Circuit had misunderstood the configuration of the monitoring station and should readdress the case themselves with the correct facts.

From the argument session, it wasn’t clear which way the Court would rule. What’s clear is that the Los Angeles and San Gabriel rivers are in trouble. Both rivers have been heavily modified by dams and concrete channels and flow through heavily urbanized areas where the importance of watershed health is not yet fully understood and accepted. Along with urban rivers all across the country, they are routinely impacted by pollution, particularly during heavy storms. Moving forward, we’ll keep working for stronger stormwater regulations and permits with clearer systems to hold polluters accountable.

Read an amicus brief [PDF] by American Rivers Board Member Amanda Leiter.

Listen to the oral arguments.