Ninth Circuit’s Fanciful Interpretation Of The Clean Water Act Ripe For Another Reversal?

Shortly after admonishing the Ninth Circuit for its strained interpretation of the Clean Water Act ("CWA"), the Supreme Court may be asked to repeat itself. On January 8, 2013, in Los Angeles County Flood Control District v. Natural Resource Defense Council, 133 S. Ct. 710 (2013), the Supreme Court reversed the Ninth Circuit's finding that the Los Angeles Flood Control District ("County") was liable for a CWA permit violation for channelling stormwater containing pollutants from one portion of a navigable waterway to another portion of that same waterway. The Court remanded the case to the Ninth Circuit. On August 8, 2013, the Ninth Circuit retooled its holding and again found the County liable for CWA permit violations. Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, 10-56017 (9th Cir. Aug. 8, 2013). This time, the Ninth Circuit focused on the specific language of the discharge permit rather than the jurisdictional operation of the CWA. The Circuit may need a third try to get it right.

The Supreme Court limited the jurisdictional reach of the CWA in 2004 by recognizing that the plain language of the Act assigned liability only upon the "addition" of a pollutant to a navigable waterway. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-12 (2004). In the absence of an "addition," the Court reasoned that no discharge could take place. Thus, the CWA could not regulate movements of polluted water from one part of a water body to another part of the same water body, even when those movements are human-engineered. Id.

The Court restated the limitation this year in Los Angeles County Flood Control District, finding the County not liable under the CWA because "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." 133 S. Ct. at 713. The Court was resolute in its holding. Despite resolving a narrow question of law, Justice Scalia stated during the hearing that he could not see "how the court of appeals is going to be able to do anything different, other than say there's no liability here, unless, of course, it adopts another...