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October Term, 2012

January 8, 2013

Today the Supreme Court issued one decision, described below, of interest to the business community.

Clean Water Act—Discharge of Pollutants

Los Angeles County Flood Control District v. Natural Resources Defense Council, No. 11-460 (described in the June 26, 2012, Docket Report)

The Clean Water Act regulates “discharge[s]” of pollutants from, among other things, municipal storm-sewer systems. 33 U.S.C. § 1342(p). In 2004, the Supreme Court held that there is no “discharge” within the meaning of the CWA, and hence no possibility of a statutory violation, when water flows between two bodies of water that are not “meaningfully distinct.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 112 (2004). Today, the Court reaffirmed that holding in Los Angeles County Flood Control District v. Natural Resources Defense Council, No. 11-460.

The Court’s opinion is of interest to businesses that are currently or potentially subject to National Pollutant Discharge Elimination System (“NPDES”) permits.

Petitioner Los Angeles County Flood Control District (the defendant below) operates a municipal storm-sewer system that is subject to an NPDES permit. The system includes concrete channels through which portions of the Los Angeles and San Gabriel Rivers flow. Because monitoring stations in both rivers detected pollutant levels that exceeded the levels allowed by the District’s permit, respondent environmental groups sued the District, alleging that it had violated the terms of the permit. The district court granted summary judgment to the District because the environmental groups had failed to present evidence that the District had discharged the pollutants. But the Ninth Circuit reversed, holding that an unlawful discharge occurred “when the polluted water detected at the monitoring stations ‘flowed out of the concrete channels’” and back into the other portions of the rivers. Slip op. 3 (quoting NRDC v. Cnty. of L.A., 673 F.3d 880, 900 (9th Cir. 2011)).

Before the Supreme Court, all the parties—as well as the United States, as amicus curiae—agreed that the Ninth Circuit’s analysis was incorrect under Miccosukee. The environmental groups argued, however, that the Ninth Circuit’s decision should be affirmed on the alternative ground that the pollutant levels “detected at the instream monitoring stations are by themselves sufficient to establish” liability under the CWA. Slip op. 5.

In an opinion by Justice Ginsburg, the Supreme Court reversed. The Court reasoned that under its holding in Miccosukee “no discharge occurs when water…simply flows from one portion of the water body to another”—as when river water flows through a concrete channel and then back into the main part of the same river. Slip op. 4 (quoting Miccosukee, 541 U.S. at 112). The Court declined to address the environmental groups’ alternative argument because it was not part of the “narrow question” on which certiorari was granted. Slip op. 5.

Justice Alito concurred in the judgment only, but did not file a separate opinion stating his reasons.

Any questions about this case should be directed to Tim Bishop (+1 312 701 7829) in our Chicago office.

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