From a Best Best & Krieger Legal Alert:

“The Ninth Circuit Court of Appeals ruled yesterday [August 8] that elevated pollutant levels in the Los Angeles and San Gabriel rivers represent a violation of the National Pollutant Discharge Elimination System (NPDES) permit issued under the federal Clean Water Act (CWA) and are attributable to the Los Angeles County Flood Control District. The Court of Appeals’ decision in Los Angeles County Flood Control District v. Natural Resources Defense Council follows a remand from the U.S. Supreme Court, which held that water flowing through the channelized Los Angeles and San Gabriel rivers is not a ‘discharge of pollutants to a water of the United States.’

The Supreme Court’s decision had reaffirmed the holding of South Florida Water Management District v. Miccosukee Tribe and emphasized that the CWA and its NPDES program apply only where there is a discharge of a pollutant from a point source.

The Ninth Circuit’s decision, however, appears to sidestep the Supreme Court’s opinion based on the following rationale: (1) the NPDES permit incorporates water-quality limits for each receiving water body, including the Los Angeles and San Gabriel Rivers; (2) mass-emissions monitoring stations have recorded pollutant loads in the receiving water bodies that exceed those standards; (3) an exceedance constitutes non-compliance with the permit and, thereby, the CWA; and (4) the Flood Control District, as holder of the permit and joint operator of the LA MS4, is liable for these exceedances under the CWA.”

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