Thursday, July 5, 2012

A Puzzling Cert Grant

Several weeks ago, the U.S Supreme Court granted cert in NRDC v. County of Los Angeles, a Clean Water Act case involving stormwater permit compliance.  This is just one of two stormwater cases the Court will hear this term (more coverage of that here), making this perhaps the most exciting term ever for stormwater geeks.  But granting cert in this case was a strange choice. 

Understanding the strangeness requires a little background.  Like most major metropolitan areas, Los Angeles County has a complex system of stormwater management infrastructure.  That infrastructure commingles stormwater runoff from many different public and private sources, conveying it into the rivers that drain the LA basin. The stormwater carries a wide variety of pollutants, and those pollutants contribute to chronic violations of water quality standards in the rivers and in the ocean.

In Los Angeles, as in many other developed areas, drawing a line between the man-made stormwater management infrastructure and the natural watercourses isn't always easy.  Most suburban and urban rivers are at least somewhat re-engineered, and the Los Angeles River, which flows much of its length through a lined concrete channel, is just a particularly notorious example of a common phenomenon.  Urban rivers tend to occupy a continuum of naturalness, with some flowing relatively freely and some buried and largely forgotten within subterranean culverts.  Often streams occupy multiple states at various portions of their length.  For example a stream might start in a somewhat natural state, flow into lined ditches or even buried culverts, and then reappear again, picking up additional stormwater discharges all along the way.

That complexity appears to have generated the cert grant here.  At one point in its opinion (authored by Judge Milan Smith, who has had a few other interesting things to say recently), the Ninth Circuit held that discharges from the MS4 system to the San Gabriel and Los Angeles Rivers violated the Clean Water Act.  Monitoring of the flow in those portions of the MS4 system revealed violations of permit requirements, and the combination of those violations and the presence of downstream discharges amounted, according to the Ninth Circuit, to a violation of the Clean Water Act.  But the catch is that the monitoring sites were within channelized portions of the Los Angeles and San Gabriel Rivers.  In other words, on one reading, the Ninth Circuit held that the flow of polluted water from a channelized portion of the river to a non-channelized portion of the same river could create a violation of the Clean Water Act.  This, the defendants and petitioners argued, conflicted with the Court's decision in South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004).  And on that issue, the Court granted cert.  (The Court denied cert on the other question raised by the petition, which was whether those channelized portions of the river constituted navigable waters within the meaning of the Clean Water Act.)

I wonder why.  This doesn't appear to be a recurring issue in federal court cases.  It wasn't even a big issue in this case; the litigants appear to have focused largely on other issues and defenses.  In fact, NRDC's primary argument was that the monitoring station reports revealed violations caused by discharges upstream of the monitoring station, not that they revealed that illegal discharges were occurring downstream.  And the case is factually and legally very complex.  So the Court seems to have signed itself up to perform essentially de novo review (without any opportunity to do its own factfinding) of a somewhat arcane legal question arising out of a rather complicated fact pattern and an equally complex statute--a statute that at least a few of the justices hold in rather poor regard.  This, I fear, won't go well.

-Dave Owen

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