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Supreme Court Should Not Unduly Expand the Scope of the CWA

JURIST Guest Columnist Roderick Walston of Best Best & Krieger says that municipal stormwater systems should not be held to the same lofty standards as other dischargers under the Clean Water Act because municipalities do not have ample control over the release of pollutants into passing waterways...

Many municipalities operate storm sewer systems that collect stormwater during periods of heavy rainfall and discharge the stormwater through drains, ditches, culverts and other channels into flowing rivers and streams. The stormwater typically gathers in numerous locations — parking lots, shopping malls and the like — and picks up various pollutants — such as engine oil, toxic chemicals and heavy metals — before it is discharged into the waterways. These municipal storm systems are called "municipal separate storm sewer systems," or "MS4s" for short. The US Supreme Court recently decided to review a case, Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., that raises the question of whether MS4s are subject to the same requirements and prohibitions that apply to industries and municipalities when they discharge sewage and other waste into passing waters.

The Court will hear oral argument in the case on December 4, 2012 and is expected to issue its decision well before the end of the Court's term in July 2013.

The Clean Water Act (CWA) prohibits the "discharge of a pollutant" except as authorized by the Act. The CWA defines this quoted phrase as an "addition" of a pollutant from a "point source" to "navigable waters." The term "navigable waters" is, in turn, defined as "the waters of the US," but the "the waters of the US" is a term not defined in the CWA. In short, the CWA prohibits an unauthorized "addition" of a pollutant from a "point source" to "the waters of the US" — a possibly ambiguous term.

Under the CWA, the Environmental Protection Agency (EPA) is authorized to issue a National Pollutant Discharge Elimination System (NPDES) permit allowing an entity or individual to discharge various pollutants. The NPDES permit typically establishes effluent limitations for the discharges, and it requires the discharger to comply with the effluent limitations as a condition of the permit. The EPA is also authorized to grant authority to a state to administer its own NPDES permit program. To date, the EPA has granted such authority to 46 states. Thus, the CWA, although passed by Congress, is largely administered by the states through a form of "cooperative federalism" — a hallmark of the nation's unique system of government.

The issue before the Supreme Court in the case at hand, is whether the Los Angeles County Flood Control District's ("the District") MS4s have violated, and are violating, the CWA by causing an "addition" of pollutants from a "point source" into two flowing rivers: the Los Angeles River and the San Gabriel River. A "point source" is a pipe, ditch, channel or other conduit that conveys pollutants into "the waters of the US." Everyone agrees that the Los Angeles and San Gabriel Rivers are part of "the waters of the US."

The US Court of Appeals for the Ninth Circuit ruled that the District's MS4s violated the CWA by causing an "addition" of pollutants from a "point source" into the two rivers. The District's MS4s include upstream outfalls where the pollutants originally entered the rivers, and the MS4s also include monitoring stations and downstream outfalls located further downstream in the rivers. The Ninth Circuit held that the monitoring stations detected pollutants as they passed through the stations and that the pollutants were "again discharged" when they passed through the downstream outfalls.

The Ninth Circuit was unable to determine exactly where the District's upstream outfalls originally discharged the pollutants into the rivers, stating that it would be a "Sysyphean task" to determine the original point of discharge. The court reasoned, however, that since the monitoring stations detected the pollutants in the rivers and the pollutants later passed through the downstream outfalls, it was irrelevant where the pollutants initially entered the rivers. According to the court, the District's MS4s were clearly responsible for the pollution regardless of where the pollution originally occurred.

The Ninth Circuit's reasoning is troubling. Since the CWA prohibits the "discharge" of pollutants into waterways from a "point source," the location of the point source that is the original source of the pollution is vital in determining the applicability of the CWA and whether a discharger has violated it. The CWA prohibits only the original discharge of pollutants into the waterways from a point source, and it does not prohibit another discharge of the same pollutants in the same waterway. As the Court held in an earlier case, there has been no "addition" of a pollutant to "the waters of the US" within the meaning of the CWA unless the waters from which a pollutant has been conveyed are "meaningfully distinct." Since the character of the Los Angeles and San Gabriel rivers are not different above and below the monitoring stations and the downstream outfalls, these segments of the river are not "meaningfully distinct" within the meaning of the Court's decision in Miccosukee Tribe, and there has been no "addition" of a pollutant to "the waters of the US" simply because the pollutants passed through these facilities.

Thus, there is no basis for concluding that the District's MS4s have violated the CWA.

There is a more fundamental reason, however, why the Ninth Circuit's decision may be misplaced. The CWA imposes different prohibitions and requirements against MS4s than it imposes against other municipal and industrial dischargers that typically discharge waste from their facilities into passing waterways. Although the CWA prohibits the discharge of pollutants except as authorized by NPDES permits, it does not similarly prohibit MS4s from discharging pollutants except as authorized by NPDES permits. Instead, the CWA provides that MS4s are required to establish "controls" — such as "management practices" and "techniques" — to "reduce" stormwater pollution "to the maximum extent practicable." Thus, while other dischargers are prohibited from discharging pollutants except as authorized by permits, MS4s are authorized to discharge pollutants as long as they have established "controls" to "reduce" pollution "to the maximum extent practicable." In short, the CWA does not subject MS4s to the same prohibitions and requirements that apply to other municipal and industrial dischargers.

Why didn't the US Congress impose the same prohibitions and requirements against MS4s that it imposed against other industrial and municipal dischargers? The reason is that other dischargers have substantial control over whether to discharge waste containing pollutants into waters; they can choose to treat the waste before discharging it, or, in the case of industrial dischargers, go out of business rather than discharging the waste. Municipalities operating MS4s do not have the same degree of control over the discharge of stormwater containing pollutants into passing waterways. Stormwater occurs during periods of very heavy rainfall, typically accumulates in areas over which local agencies typically have little control — such as private property — and often threatens to cause local flooding. The MS4s perform an important public service by collecting stormwater and discharging it through drains and other conduits into the passing rivers, thus preventing local flooding and property damage.

As a practical matter, local public agencies have not yet been able to develop the management controls and techniques that would allow them to remove all pollutants from the stormwater before it is discharged into passing waterways. Congress evidently assumed that it is better that municipalities do an imperfect job in reducing stormwater pollutants as much as feasibly possible, rather than to subject them to fines and penalties under the CWA for not doing a perfect job in eliminating pollutants from the stormwater altogether. The CWA thus reflects Congress' pragmatic solution to the intractable problem caused by stormwater discharges.

The Court has never addressed the question of how the CWA applies to municipal stormwater systems, or whether such systems are required to meet the same prohibitions and requirements that apply to other dischargers, and if not what standards they are required to meet. Thus, the Court will decide an important national issue when it rules in the case at hand. The Court's decision will establish an important precedent concerning the reach of the CWA and how it applies to these unique municipal stormwater systems.

Roderick E. Walston is of counsel in Best Best & Krieger's litigation practice group, where he specializes in
natural resources law, environmental law, water law and appellate litigation. Prior to joining Best Best & Krieger, he served as Deputy Attorney General for the state of California and Deputy Solicitor of the US Department of Interior.

Suggested citation: Roderick E. Walston, Supreme Court Should Not Unduly Expand the Scope of the CWA, JURIST - Sidebar, Nov. 26, 2012, http://jurist.org/sidebar/2012/11/roderick-walston-stormwater-epa.php

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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