The Ninth Circuit Court of Appeals ruled on August 8, 2013, 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.

Addressing the lack of a discernable point of discharge at which to assess compliance, the Ninth Circuit repealed its previous holding that: “The precise location of each outfall is ultimately irrelevant because there is no dispute that [the LA] MS4 eventually adds stormwater to the Los Angeles and San Gabriel Rivers downstream from the Monitoring Stations.” Instead, the Ninth Circuit, in its latest ruling, assessed liability based on a strict, contractual reading of the NPDES permit requirements. The Ninth Circuit interpreted that permit and its monitoring provisions as holding the Flood Control District liable for exceedances measured at the mass-emissions monitoring stations. The court remanded the case to the district court to determine the appropriate remedy. It is anticipated that the Flood Control District will seek review of the decision.

Best Best & Krieger attorneys submitted an amicus brief in the Supreme Court case on behalf of the National Governors Association, the National Association of Counties, the U.S. Conference of Mayors and other national organizations arguing, among other things, that the Ninth Circuit erred in its decision because there was no identifiable point of discharge. While the Supreme Court ultimately agreed with this rationale, the Ninth Circuit’s decision on remand imposes liability on the Flood Control District.