Update On Clean Water At The Supreme Court
This is a guest blog from American Rivers' intern, Genevieve Meller.
Just last week, the Supreme Court (Court) issued their decision [PDF] on the Clean Water Act (CWA) case, Los Angeles County Flood Control District (District) v. Natural Resources Defense Council (NRDC). The Court reversed and remanded the decision of the 9th Circuit Court of Appeals (which had earlier ruled in favor of NRDC).
As I wrote previously, this case had the unique quality of coming before the Supreme Court with the petitioner and respondents in agreement on the threshold issue, of whether the movement of water between “improved” and “unimproved” portions of a single waterway constitutes a discharge under the CWA.
The Court unanimously decided that it is not a discharge, and in doing so, the Court upheld its precedent based on an earlier decision in South Florida Water Management District v. Miccosukee Tribe of Indians.
Because this conclusion has already been firmly established and the decision was a narrow one, this does not impact stormwater management requirements. One legal scholar considers this result a victory as the “CWA’s key logic and enforceability should ultimately emerge unscathed.”
The more important implication comes from the question the Court pointedly did not address. During the argument session, NRDC tried to reframe the argument and asked the Court to think about permit-violation liability for the District, rather than focus exclusively on the CWA vocabulary question whose answer was undisputed.
In the decision, the court notes NRDC’s attempt to widen the conversation but firmly states that “this argument […] is not embraced within the narrow question on which certiorari was granted” and thus the Court therefore “does not address it”. The Court’s decision does not directly change any clean water obligations or provide new thought on the self-monitoring framework of the CWA.
We’ll post here soon regarding another CWA case, this time in Virginia, on how to manage the clean-up of Accotink Creek.