The U.S. Supreme Court has agreed to consider a case that could very well impact hundreds of communities and water management districts not currently covered by EPA's municipal separate storm sewer system (MS4) permitting requirements under the Clean Water Act.
In June, the Supreme Court agreed to hear an appeal on a lower court ruling last year that found the Los Angeles County Flood Control District (LACFCD) was responsible for polluted runoff released into the Los Angeles and San Gabriel rivers from channelized portions of those same rivers.
The LACFCD serves 84 municipalities and some unincorporated areas of Los Angeles County, and collects and channels stormwater from across the country. The district has channelized some portions of the LA and San Gabriel rivers to help with flood control. However, the rivers are considered "natural rivers" above and below the channelized areas.
Pollution levels exceeding the district's NPDES permit were detected at mass monitoring points in the channelized portions of the streams. Since that water then flows into "natural" portions of the rivers, the transition was considered a point source discharge under the CWA by the lower court.
Because it owned the physical structure, the court found that LACFCD was responsible for control of the stormwater flowing through the conveyance and, therefore, responsible for reduction of pollutants in that stormwater. LACFCD argued that it isn't responsible for the pollution that finds its way into the stormwater, that it simply manages the passageway for water to flow downstream.
In agreeing to hear the case, the Supreme Court justices said they would limit their review to the narrow question of whether water flowing through a concrete flood control channel built into a river can be considered a point source discharge under the Clean Water Act.
If the Supreme Court rules that it is a discharge, the county will be responsible for insuring that the stormwater meets water quality standards. If the channelized portion is considered to be the same body of water, then the district is not liable.
I struggle to see how any reasonable person would consider two sections of the same river to be different water bodies simply because one section is natural and the other lined with concrete.
Off hand, I can think of 4-5 channelized streams within 10 miles of my home. Streamlined to prevent flooding, they collect water from a network of smaller streams that reach into the neighborhoods and small watersheds around town. I can only imagine how many thousands of similar flood control projects can be found in cities and towns across the country.
Several groups have filed briefs in support of the LACFCD, including the Florida Stormwater Association, California Stormwater Quality Association and the National Association of Flood and Stormwater Management Agencies.
In its brief, the Florida group wrote "Allowing a citizen suit action against a single permittee for exceeding mass emissions limitations for pollutants measured at a monitoring point turns established stormwater permit compliance programs across the nation on their heads."
Supreme Court sessions start in October. Hearings for the issue are expected to be set sometime in the last quarter of 2012.
James Laughlin, Editor