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 fanciful interpretation of the statute, which is something I worry about.”
On August 8, the Ninth Circuit issued just such a “fanciful interpretation.” The Ninth Circuit again found the County liable for a CWA violation, stating that the plain language of the permit prohibited the County from discharging any water that contained pollutant levels in excess of those allowed by the permit. The court concluded that data generated by the County’s monitoring stations satisfied any evidentiary requirement needed to assign liability regardless of the fact that no evidence showed that the County actually added a pollutant to the water. Because the County’s monitoring stations showed that pollutant levels in the stormwater were greater than that allowed by the permits, the court reasoned that a CWA violation occurred. The Ninth Circuit failed to engage with the substance of the Supreme Court’s decision, stating only that the Supreme Court did not address other sources of the County’s liability.
On August 30, 2013, the County filed a petition for rehearing en banc, requesting the court to reconsider its holding. As the County noted in its petition, the panel opinion assigns liability under the CWA without finding that the County added a pollutant to a navigable waterway. The implications of this holding are potentially severe, as permittees could be subject to civil penalties under the CWA without evidence of culpability, and municipal sewer authorities could become responsible for the discharges of others into the same waterway. Additionally, given that the opinion appears to contradict the Supreme Court’s decision on the issue, this case could once again find its way before the Supreme Court.