L.A. Cty. Flood Control Dist. v. NRDC, Inc. - 568 U.S. 78, 133 S. Ct. 710 (2013)

Rule:

The transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the Clean Water Act (CWA). The CWA’s text defines the term “discharge of a pollutant” to mean any addition of any pollutant to navigable waters from any point source. 33 U.S.C.S. § 1362(12). Under a common understanding of the meaning of the word “add,” no pollutants are “added” to a water body when water is merely transferred between different portions of that water body.

Facts:

Petitioner Los Angeles County Flood Control District (District) was operating a “municipal separate storm sewer system” (MS4), a drainage system that collects, transports, and discharges storm water. Because storm water was often heavily polluted, the Clean Water Act (CWA) and its implementing regulations required certain MS4 operators to obtain a National Pollutant Discharge Elimination System (NPDES) permit before discharging storm water into navigable waters. The District has such a permit for its MS4. Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and others under § 505 of the CWA, 33 U.S.C. §1365, alleging, among other things, that water-quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit. The District Court granted summary judgment to the District on these claims, concluding that the record was insufficient to warrant a finding that the MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations. The Ninth Circuit reversed in relevant part. The court held that the District was liable for the discharge of pollutants that, in the court's view, occurred when the polluted water detected at the monitoring stations flowed out of the concrete-lined portions of the rivers, where the monitoring stations are located, into lower, unlined portions of the same rivers. Certiorari was granted.

Issue:

Under the circumstances, did the petitioner water district “discharge pollutants” within the meaning of the Clean Water Act? 

Answer:

No.

Conclusion:

The judgment of the Ninth Circuit was reversed. Under the Clean Water Act, the flow of water out of a concrete channel within a river was not a “discharge of a pollutant.” The transfer of polluted water between “two parts of the same water body” did not constitute a discharge of pollutants under the Act. Thus, no discharge of pollutants occurred when water, rather than being removed and then returned to a water body, simply flowed from one portion of the water body to another. The flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway did not qualify as a discharge of pollutants under the Act.