On January 8, 2013 the Supreme Court of the United States ruled that Los Angeles County is not liable for transfers of polluted water from concrete lined portion of rivers into unlined portions of the same river.   Specifically, the question in the case was whether the Clean Water Act’s (“CWA”) permitting requirements apply when water flows from one portion of a navigable river through a concrete channel and then back into a lower portion of the river.  The Clean Water Act typically requires a permit for any discharge of pollutants into a river. 

In this case, the Los Angeles County Flood Control District (the “District”) operated a municipal separate storm water system, a drainage system that collected, transported, and discharged storm water. Pursuant to the CWA, the District obtained a National Pollutant Discharge Elimination System (“NPDES”) permit before discharging storm water into navigable waters.

Natural Resources Defense Council Inc. filed a lawsuit against the District under Section 505 of the CWA, alleging a violation of the terms of the NPDES permit because water quality measurements from monitoring stations within the Los Angeles and San Gabriel Rivers had detected standards-exceeding pollutants allowed under the NPDES permit. 

The lower district court found insufficient evidence to warrant a violation, and found in the District’s favor.  The intermediary United States Court of Appeals for the Ninth Circuit reversed the lower court’s decision, and found the District liable for the discharge of pollutants that occurred when water overflowed out of concrete-lined portions of the rivers and into lower, unlined portions of the same rivers.

The Supreme Court of the United States reviewed and reversed the intermediary court’s decision.  In reversing, the Supreme Court evaluated its decision in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004), where it ruled that the transfer of polluted water between two parts of the same body of water does not constitute a discharge of pollutants under the CWA. 

Here, discharge of pollutants occurred when the polluted water detected at the monitoring stations flowed out of the concrete lined potions of the rivers, into the lower, unlined portions of the same rivers; thus, the transfer of pollutants occurred in the same rivers. 

Therefore, under the decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., a flood control district is not liable for transfers of polluted water from concrete lined portion of a river into unlined portions of the same river.

Alvarez-Glasman & Colvin specializes in water law, and regularly advises its clients about the Clean Water Act.  Please contact AGC Partner John W. Lam at jlam@agclawfirm.com or at (562) 699-5500 for more information regarding this case or other water law matters.