What Dispute? US Supreme Court Issues Decision in Los Angeles County Appeal

The much-anticipated opinion in Los Angeles County Flood Control District  v. Natural Resources Defense Council has been issued by the US Supreme Court, although it ended with more of a whimper than a bang. Rather than a seminal discussion of what constitutes a point source discharge, which many of us had been hoping for, the decision  turned on the sole question of whether flow of polluted water  from a concreted part of the river into an unconcreted portion  constitutes a point source discharge.    Based on  South Fla. Water Management District v. Miccousukee Tribe 541 US 95 (2004), the answer to that question was clearly no, and the Ninth Circuit was reversed.

The interesting point to me was that, during oral argument,  all parties to the case and the US as amicus curiae had agreed  that the flow of water from one section of the Los Angeles River (the concreted portion) to the natural section was not a point source. Since that was the sole point the Supreme Court agreed to decide, the result was a foregone conclusion.  The NRDC tried to persuade the Court that  the Ninth Circuit reached the right conclusion for the wrong reason.  They argued that the fact that water quality  monitors in the lower part of the river  showed the existence of water quality standard violations was sufficient to establish the District's liability for its storm water discharges that occurred upstream of the monitoring points. The Supreme Court (Ginsberg) offered no opinion on that question, pointedly noted that it was not the question they agreed to decide.

It had been my understanding, after reading the Ninth Circuit's decision, that it had decided a different question - whether Los Angeles County was responsible for the storm water discharges into the Los Angeles River, where it is merely providing a conduit for the storm water, and is not itself adding pollutants. I would be embarrassed by that misreading, except that Justice Ginsburg notes in a footnote that the NRDC and the US "suggest that the Court of Appeals misperceived the facts, erroneously believing that the monitoring stations for the Los Angeles and San Gabriel Rivers 'were sampling water from a portion of the MS4 [storm water collection system] that was distinct from the rivers themselves and from which discharges through an outfall to the rivers subsequently occurred.'"  So  I wasn't the only one mislead by the Ninth Circuit, it appears.