By Patrick Crow, Washington Correspondent
In a case monitored by the industrial water community, the U.S. Supreme Court ruled last month that the flow of polluted stormwater from a channelized section of river into a "natural" stretch of the same river does not constitute a "discharge of pollutants" under the Clean Water Act (CWA).
In Los Angeles County Flood Control District v. the Natural Resources Defense Council, the environmental group claimed the county had violated its stormwater permit by allowing high levels of pollution in the Los Angeles and San Gabriel rivers.
NRDC group and Los Angeles Waterkeeper (formerly Santa Monica Baykeeper) said they filed the case in 2008 "to hold the county responsible for the toxic mix of mercury, arsenic, cyanide, lead and fecal bacteria found in billions of gallons of stormwater runoff."
In a unanimous Jan. 8 opinion, the Supreme Court overturned a ruling by the Ninth Circuit Court of Appeals that held the district was responsible for polluted water diverted for flood control purposes but flowing through its watercourses into the ocean.
The district administers a stormwater system that uses hundreds of miles of channels and storm drains to channel water into rivers. Although a CWA permit normally would be required for each pollution "point source" affecting the runoff, the flood control district had joined with 84 cities in Los Angeles County to obtain a single system-wide permit.
That permit only required monitoring stations downstream of the discharge points. The district noted that because the monitoring stations relevant to this case were in channelized portions of the two rivers, the data from those stations reflected aggregate pollution, not simply the district's own contribution.
The county had argued that its flood control district was not primarily to blame for the water pollution because a number of cities discharge polluted runoff upstream from its downriver monitoring sites.
The American Water Works Association (AWWA) and several other groups filed an amicus brief with the Supreme Court last September supporting the district's rebuttal to the lawsuit.
AWWA argued that the CWA does not require a National Pollutant Discharge Elimination System permit for polluted water that is diverted from one portion of a river to another portion of the same river for purposes of flood or stormwater control.
The water association had filed similar briefs in cases arising from Florida in 2002 and New York in 2006.
"AWWA's interest in these cases reflects the legal similarity between diverting already polluted water for purposes of flood plain management, and diverting such water for purposes of municipal water supply," it explained.
Liz Crosson, executive director of L.A. Waterkeeper, said, "The county has managed to game the system in a way that has allowed the pollution of our waterways to go unaddressed for many years. The county is the largest source of stormwater pollution to local waterways, and today it has escaped accountability, but only temporarily."
NRDC downplayed the Supreme Court opinion. It said the court ruled on a narrow legal issue that was not in contention: that the flow of polluted water within a single river does not constitute a CWA "discharge of pollutants."
Steve Fleischli, director of NRDC's national water program, said that since the case was remanded to the Court of Appeals, it's hard to predict what that might entail going forward.
"We had a win in the district court on a separate issue in the same case involving pollution from the county to parts of Santa Monica Bay that was not appealed to the Supreme Court during this phase of the case. That portion of the case will still need to proceed to the remedy phase," he said.
Fleischli stressed that the justices did not excuse the county from liability for ongoing water pollution in the two rivers. NRDC wants the county to adopt green infrastructure solutions, such as on-site water capture and filtration, in order to deal with polluted stormwater pollution at the source rather than allow it to flow untreated to the sea.
Now that the legal issue has been resolved, the flood control district will be able to implement updated storm water regulations that the regional water board set last November. It also plans to proceed with a "water quality fee" to raise $275 million a year for storm water cleanup.
