High Court Throws Out LA Stormwater Case

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The U.S. Supreme Court has tossed out a case against Los Angeles County that could have impacted 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.

Environmentalists had claimed that the Los Angeles County Flood Control District (LACFCD) was responsible for polluted runoff released into "natural" sections of 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, operating 500 miles of open channels and 2,800 miles of storm drains that collect runoff. 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 passage for water to flow downstream.

The Supreme Court limited its 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.

Justice Ruth Bader Ginsburg wrote for the court in its unanimous decision, stating, "The flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a 'discharge of a pollutant' under the CWA."

She noted that no pollutants are added to a water body when water is merely transferred between different portions of that body.

The finding is consistent with a 2004 Supreme Court case between the South Florida Water Management District and the Miccosukee tribe in which the court determined that pumping polluted water from one part of a water body to another is not considered a "discharge of pollutants" under the CWA.

Clearly there are pollutants in both the LA and San Gabriel rivers that need to be removed: copper, zinc, cyanide, aluminum and fecal bacteria flow into the rivers and subsequently the ocean from countless point and non-point discharges across Los Angeles County.

The case illustrates the difficulty of monitoring and controlling pollution that results from stormwater that runs off city streets into drains and eventually into rivers and the ocean. There is no easy answer to this problem, be it a monster treatment system, creative use of green infrastructure, a massive public education campaign, or all of the above. The fact is, cities are universally nasty places and when they get wet they exude nasty runoff.

James Laughlin   James Laughlin, Managing Editor

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