U.S. Supreme Court Overturns Effort to Hold Stormwater Permit Holder Liable for Condition of Waters Passing Through
The United States Supreme Court, in a unanimous ruling, has acted to limit a potential liability of municipalities and other stormwater permit holders with respect to the condition of waters entering and passing through their jurisdictions. In a short opinion issued on January 8, the Court ruled in LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., that the Flood District could not be held responsible under its municipal separate storm sewer system (stormwater) permit for the polluted condition of waters passing through its jurisdiction. The Court's action reversed a decision by the Ninth U.S. Circuit Court of Appeals, which had found that water moving from channelized or concreted portions of a river to an unchannelized portion of the same river constituted a discharge subject to evaluation under the District's discharge permit. The Supreme Court cited its earlier 2004 opinion SOUTH FLORIDA WATER MANAGEMENT DISTRICT v. MICCOSUKEE TRIBE OF INDIANS, 541 U.S. 95, noting it had held there that transporting water between two sections of the same water body does not constitute a discharge subject to regulation under the Clean Water Act. Instead, the Court explained that the CWA regulates discharges and that those only occur if a pollutant is added to the water body from a point source. Justice Ginsburg, writing for the Court, concluded that "no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another." This was true even though improvements had been made in portions of the water body's channel, in this instance, to enhance flood control efforts. This case has been watched with particular interest by jurisdictions and other entities that may channelize or otherwise direct water through areas or activities under their control. This includes not only municipalities and watershed districts, but entities such as state and local departments of transpiration. At least some of these entities in our region have faced similar claims and threats of litigation from environmental groups. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.
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