On Jan. 8, the U.S. Supreme Court unanimously reached a decision in the L.A. County Flood Control District v. Natural Resources Defense Council (NRDC) Inc. case that could have had vast consequences for stormwater systems and other water infrastructure across the country (No. 11-460, decided Jan. 8, 2013). It is a short opinion (9-0, Alito concurring) that focused solely on the determination that water flowing from one part of a waterway to another part of the same waterway cannot result in the discharge of a pollutant (consistent with the Court's prior Miccosukee opinion). Click here to read the entire opinion.
L.A. County Flood Control District presented the question whether a “discharge” occurs under the Clean Water Act when contaminated water flows from a natural river course through a concrete channel that is part of a municipal storm sewer system (MS4) and back out into a natural river course. The Ninth Circuit held that the Los Angeles County Flood Control District (District) was responsible for discharges of pollutants at the end of concrete channels in two rivers, the Los Angeles River and the San Gabriel River. The Supreme Court reversed the Ninth Circuit decision.
The Court’s decision clarifies that the flow of water through a man-made construction (such as a dam, penstock, and/or powerhouse) within the same waterway does not qualify as a discharge of pollutants and does not require an NPDES permit.
For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org or (703) 837-5332.
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