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By Russell Prugh, Associate, Marten Law PLLC
In this Emerging Issues Analysis, Russell Prugh of Marten Law PLLC discusses LA County Flood Control Dist. v. NRDC in which the U.S. Supreme Court considered the scope of what constitutes a "discharge" under the Clean Water Act and held that no discharge occurs when water flows from one portion of a river to another through a concrete flood control channel. Mr. Prugh also provides insight into possible implications of the decision.
The Supreme Court decided a case this month that everyone agreed the Ninth Circuit had gotten wrong-the scope of what constitutes a "discharge" under the Clean Water Act (CWA). The Court held that no discharge occurs when water flows from one portion of a river to another through a concrete flood control channel. None of the litigants in the case, Los Angeles County Flood Control District v. Natural Resources Defense Council (L.A. County), supported the Ninth Circuit decision below, which had held the operator of a Municipal Storm Sewer System (MS4) responsible for pollutants detected at monitoring points within two rivers. The Court relied on South Florida Water Management District v. Miccosukee Tribe of Indians, an earlier Supreme Court decision which held that transfer of water from one water body to another does not constitute a CWA discharge unless the two waterbodies are "meaningfully distinct." In the L.A. County case, since the water merely flowed through a manmade channel and back into the same river, the Court concluded no CWA discharge had occurred. L.A. County continues the recent trend of Ninth Circuit reversals in environmental cases-representing the seventh instance where the Court has struck down the Ninth Circuit on an environmental question in the last five terms.
Although the MS4 operator prevailed in the litigation, the case may have unwanted consequences for MS4 permit holders around the country. The Court indicated that the regulatory authority modified the MS4 operator's CWA permit during the litigation to require end-of-pipe monitoring at certain MS4 discharge points in addition to the centralized, in-stream monitoring points at issue in this case. As many other MS4 permits employ a similar strategy-centralized compliance monitoring-the decision could indirectly impact MS4 operators as permitting authorities around the country re-evaluate their MS4 permits in the wake of the decision.
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