Scrutiny Over Stormwater Management: Recent Supreme Court And District Court Cases

Urban and suburban development result in two important trends for stormwater: first, an increase in stormwater quantity as the original topography and vegetative cover are altered and impervious surfaces and channelized drainages are constructed; and second, a decrease in the quality of stormwater as flows traverse parking lots, roadways, and fertilized areas. Two recent court decisions address some of the limits of stormwater management under the Clean Water Act. The first case, from the U.S. Supreme Court, discusses a flood control district's liability for polluted water flowing through channelized portions of two rivers in Southern California. Here, the Supreme Court applied settled law about what constitutes a "discharge" from a water body. The second case, from a district court in Virginia, is perhaps more interesting because it is the first federal court opinion striking down the Environmental Protection Agency's (EPA) attempt to regulate the flow of stormwater in order to regulate a pollutant contained within that stormwater.

These cases are two among a number of attempts by environmental advocacy groups to expand the reach of the Clean Water Act by expanding the points of federal jurisdiction allowing regulation. Indeed, two other cases dealing with stormwater flows associated with timber operations in the Pacific Northwest are presently before the Supreme Court: Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. In these consolidated cases on appeal from the Ninth Circuit, the Court may decide whether a citizen may challenge the EPA's interpretation of its own regulations or the EPA's determinations that stormwater in ditches and culverts along logging roads is neither industrial stormwater nor discharges from a point source that require permits. The Court heard oral arguments on these cases in early December 2012, but rather than discussing the issues upon which the Court granted certiorari, the Court focused on how to proceed given new stormwater rules the EPA issued four days before argument that were designed to overrule the Ninth Circuit's decisions. No decision has been made about whether the cases should be dismissed as moot; the Court is accepting supplemental briefing on the new rules, which must be filed by January 22, 2013.

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.1

The Supreme Court handed down a unanimous ruling on January 8, 2013, in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., that the flow of water from a concrete channel or other engineered improvement on a river to a lower un-improved portion of the same river is not a "discharge" under the Clean Water Act and does not require a Clean Water Act permit. The Court followed its previous ruling, in South Florida Water Management District v. Miccosukee Tribe of Indians, that the transfer of polluted water between two parts of the same water body is not a "discharge" because it fails to result in the addition of any pollutant.2

Not only was the decision unanimous,3 but both parties and the United States as amicus all agreed that the Ninth Circuit's holding — that a party in control of concrete-lined channels was liable for the water flowing out of those channels and into lower portions of the river — should be reversed. The Supreme Court reversed the Ninth Circuit on that very narrow issue, but it declined to address other issues in the case. The Court's refusal to broaden the definition of "point source" and...