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Argument preview: A Clean Water Act question no one cares to debate

Sometimes a case doesn’t turn out the way the Supreme Court likely thought it would when it granted certiorari.  Last week, Lyle reported on the unexpected turn of events in Vance v. Ball State University, when the university refused to defend the rule under which it had prevailed in the court of appeals, instead agreeing in large part with the basic standard proposed by the plaintiff and the United States.   Something similar has happened in a case scheduled for argument tomorrow, Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc..  In that case, the Court granted certiorari to decide whether the Clean Water Act’s permitting requirements apply when someone channels water from one part of a river to another through a concrete channel or similar flood control mechanism.  It turns out that all the parties, and the United States as amicus, agree that the answer to that question is “No.”  The only thing the parties dispute is how that answer should affect the outcome in this particular litigation, a question the Court likely would not have granted certiorari to decide standing alone.

Legal and factual background

The petitioner, the Los Angeles County Flood Control District (the District), is in charge of a massive storm water sewer system that collects storm water into hundreds of miles of channels and storm drains to eventually be directed into area rivers, including the Los Angeles and San Gabriel Rivers.  Because storm water collects chemicals and other pollution along the way (for example, from oil-stained parking lots), systems that direct such water into a navigable river are subject to the Clean Water Act.  Ordinarily, the Act requires anyone putting pollution into a navigable river to obtain a permit for each “point source” (e.g., each pipe or channel discharging into the river).  However, Congress determined that this was impractical for storm water systems, given that they often have thousands of points at which water is diverted into the river.  So it authorized the EPA (which then can delegate its power to state regulatory bodies) to issue system-wide permits.  The permits impose conditions on the operation of the system, including limits on the level of pollution the system can put into the rivers and monitoring requirements.

The District has banded together with eighty-four cities to obtain a single system-wide permit.  The permit prohibits discharges into the rivers that would result in river pollution levels that exceed certain limits.   Rather than require monitoring of water quality at every discharge point (called an “outfall”), the permit calls for the installation of various monitoring stations downstream of the discharge points.

Importantly, the monitoring stations relevant to this case were located in portions of the Los Angeles and San Gabriel Rivers that have been “channelized.”  That is, to prevent flooding, the river bed has been lined with concrete to channel and direct the flow of the river.

At the same time, because the monitoring stations were located downstream of outfalls for both the District and other cities subject to the permit, the measurements at the stations reflect the aggregation pollution of the river, not simply the District’s contribution.

Legal proceedings

The respondent, the Natural Resources Defense Council (NRDC), filed suit alleging that the results from one of these monitoring stations showed that the system was discharging pollutants well in excess of permit levels.  The district court entered summary judgment in the District’s favor.  It read the permit to make each entity responsible only for its own contribution to any pollution in excess of permit limits.  Because the monitoring stations in the channelized portions of the river necessarily measured aggregate pollution levels, their readings were insufficient to establish that the District was responsible for the excess pollution in the river.

The Ninth Circuit reversed.  It agreed with the district court that the District was only responsible for its contribution to the pollution in the river.  But it held that the readings from the monitoring station were sufficient evidence to establish that the District was in violation of the permit.  It concluded that the monitoring systems were located were part of the District’s storm water system.  And it viewed the storm water system as “distinct from the two navigable rivers.”  Accordingly, the monitoring stations were measuring the quality of the water in the District’s own system, which was subsequently discharging downstream into the rivers at some point beyond the monitoring stations.  On that view, the monitoring results measured only the pollution for which the District was responsible and it could be held liable based on those results.

The District petitioned for certiorari, posing two questions, only one of which the Court granted: whether a “discharge” or “outfall” occurs within the meaning of the Clean Water Act when water flows from one portion of a river, through a concrete channel, into another portion of the river downstream.

The briefing

In its opening merits brief, the District argued that the relevant monitoring stations were placed squarely in the channelized portion of the rivers, not in some part of the system preceding the outfall of storm water into the river.  But the Ninth Circuit had treated the channelized section of the river in which the monitoring stations were located as if it were one of the pipes of the storm water system, and treated the point at which the channelized part of the river joined the lower portion of the river as if it were an outfall (i.e., as if it were the end of a pipe discharged into the lower part of the river).

In so doing, the District argued, the Ninth Circuit had contravened the Supreme Court’s earlier decision in South Florida Water Management District v. Miccosukee Tribe of Indians.  That case held that simply transferring water through a channel from one portion of a body of water into another part of the same body of water did not constitute a “discharge” within the meaning of the Clean Water Act (and therefore did not require a permit).  The rationale was that simply moving water from one part of a river to another, for example, did not add to its pollution and therefore did not implicate the purposes of the Act.  The District argued that this principle likewise precluded treating the channelized portions of the Los Angeles and San Gabriel Rivers as the equivalent of storm water pipes, such that the outflow from the channelized portion into the non-channelized portion constituted a discharge for which the District was solely responsible.

In its brief as respondent, NRDC agreed that the answer to the Question Presented was “No.”  It agreed that water flowing out of the channelized portions of the river does not constitute a discharge or outflow.   Instead, NRDC argued that the monitoring results were sufficient to establish liability for a different reason.  It was uncontested that the District did discharge storm water into the river above the monitoring stations.  And under the terms of the permit, NRDC argued, the District had committed to take steps to address any excess pollution measured by those monitoring stations, whether it was fully responsible for the pollution or not.  Otherwise, NRDC argued, the monitoring stations (which were placed in the river, rather at the District’s outfalls, at the District’s own request in its permit proposal) would serve no purpose – because they are in the river, and therefore cannot determine which of the upstream permitees contributed to the excess pollution, it would be impossible to use the results to require any permittee to take any remedial action.

The United States filed an amicus brief in which it agreed with the parties that the outflow of water from the channelized portion of the rivers did not constitute a regulated discharge or outflow.  The Ninth Circuit erred to the extent it held otherwise.  But the government suggested that the Ninth Circuit’s error was most likely factual, not legal.  That is, the court of appeals most likely was simply mistaken about the location of the monitoring stations, believing that they were in some part of the stormwater system preceding the system’s outfall into the rivers themselves.  For that reason, the government argued, the Court should vacate the decision and remand for further proceedings to consider NRDC’s argument that the District is liable under the terms of the permit to take remedial action whenever the monitoring stations find excess pollution, without any further requirement of disaggregating the District’s own contribution to the violation.

In its supplemental brief responding to the government’s amicus brief, the District strenuously urged the Court not to decide NRDC’s alternative grounds for affirmance or accept the government’s suggestion of a remand.  It asserted that the Ninth Circuit had rejected NRDC’s alternative argument in the context of ruling on other claims in the case that are not before the Supreme Court.  As a consequence, if NRDC wanted the Court to pass on that argument, it was required to file a cross-petition, which it did not do.  The Court should therefore simply reverse the Ninth Circuit and order the entry of judgment in the District’s favor.


It is exceedingly unlikely that the Court granted certiorari to decide the best reading of the terms of this one particular permit.  Yet after briefing, the meaning of the permit (and the collateral question of whether the issue is properly before the Court) is all that remains in dispute between the parties.  That leaves the Court several options.  It could vacate the Ninth Circuit’s decision in a brief opinion, saying that that the lower court was mistaken to the extent it held that the flow of water from the channelized portions of the river constituted a “discharge” under the Clean Water Act, and leaving that court to decide what other issues remained in the case.  It could go a step further and decide whether NRDC was required to file a cross-petition to preserve its alternative argument for Supreme Court review (perhaps thereby providing some additional guidance on this obscure area of Supreme Court practice).  And if it found the issue preserved, it could go ahead and decide the alternative argument, although it would do so without the benefit of the kind of focused briefing that would attend a grant of certiorari on that specific question.

Whatever the Court decides to do, I suspect it will end up regretting having granted certiorari in this case.  But if so, it will have no one to blame but itself.  Sometimes the nature of a case will change between the grant of certiorari and the briefing on the merits, often because the respondent hires new counsel who decides to take a different strategy.   (Indeed, this may have been what happened in Vance v. Ball State University, argued last week, in which the university declined to defend the rule under which it prevailed in the Seventh Circuit).  But in this case, NRDC made quite clear in its brief in opposition that it would not defend the judgment below on the untenable theory that the channelized river was itself a discharge or an outflow.  And when the Court asked the Solicitor General for his advice, he recommended that the Court deny cert. because, among other things, the Ninth Circuit’s decision was best read not to announce a rule of law in contravention of  Miccosukee, but a fact-bound determination about the location of these particular monitoring stations.  But the Court disregarded that advice and granted certiorari anyway.  Perhaps the oral argument will provide some insight into the Justices’ reasons for making that decision.

Recommended Citation: Kevin Russell, Argument preview: A Clean Water Act question no one cares to debate, SCOTUSblog (Dec. 3, 2012, 2:32 PM),