Yana Welinder[*]
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Introduction
Regulating pollution from stormwater that flows over structures and paved surfaces, collecting waste and sediments and ultimately spilling into rivers and oceans, can be a true “administrative nightmare.”[1] However, on March 10, 2011, the Ninth Circuit clarified that, when stormwater pollution cannot be attributed to any particular polluter, liability under the Clean Water Act (CWA)[2] can nevertheless be imposed upon the entity that controls the discharge of stormwater into watercourses.[3] As such, the court in Natural Resources Defense Council v. County of Los Angeles held the Los Angeles County Flood Control District (District) liable for excess stormwater pollution detected by monitoring stations located in storm-sewer systems channeling stormwater to the Los Angeles River and the San Gabriel River.
San Gabriel River. Photo credit to Eazylanish.
National Pollution Discharge Elimination System Permits Under the Clean Water Act
The CWA prohibits “the discharge of any pollutant by any person”[4] into “navigable waters from any point source” unless done in compliance with the provisions of the CWA.[5] Such pollutants include “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste.”[6] A point source is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”[7]
To discharge pollutants from a point source in compliance with the CWA, one must first obtain a National Pollutant Discharge Elimination System (NPDES) permit, which requires compliance with numerous requirements, including effluent limitations,[8] water-quality standards,[9] water monitoring and public reporting obligations, as well as specific discharge requirements.[10] In California, the State Water Resources Control Board and nine regional water quality control boards issue NPDES permits.[11] Discharges from the District, the County of Los Angeles (County), and eighty-four incorporated municipalities in the County fall under the jurisdiction of the Los Angeles Regional Water Quality Control Board.
Natural Resources Defense Council v. County of Los Angeles
The District operates an extensive flood-control and storm-sewer infrastructure (known as the “MS4”) that collects stormwater runoff from thousands of storm drains located in various municipalities in the County and channels it to several watercourses that eventually drain into the Pacific Ocean.[12] Before the stormwater enters the MS4, it flows over the sprawling development of the County and collects various pollutants such as suspended metals, sediments, algae-promoting nutrients, floatable trash, used motor oil, raw sewage, pesticides, and other toxic contaminants. The discharge of such pollutants into watercourses is governed by a NPDES permit held jointly by the District, the County, and the eighty-four municipalities within the County.[13] This permit includes a requirement that the District operate monitoring stations to measure the level of pollutants in the stormwater that it discharges into watercourses.
Two environmental organizations—the Natural Resources Defense Council and Santa Monica Baykeeper—brought a citizen suit against the District and the County under the CWA. The organizations alleged that the District and the County violated their NPDES permit by discharging overly polluted stormwater runoff into the Los Angeles River, the San Gabriel River, the Santa Clara River, and Malibu Creek, as measured by the monitoring stations for those four watercourses between 2002 and 2008.[14] The U.S. District Court for the Central District of California entered a partial summary judgment for the District and the County, while denying the environmental organizations’ motion for summary judgment. The court found that the organizations failed to present evidence to establish that the District and the County were responsible for the stormwater discharge.[15]
On appeal, the District argued that the MS4 merely channels pollutants created by other municipalities or industrial NPDES permit holders. The Ninth Circuit rejected this argument, stating that, for the purposes of the CWA, it is irrelevant whether the discharger of polluted stormwater adds or generates the pollution.[16] The court echoed the Fourth Circuit’s statement in West Virginia Highlands Conservancy, Inc. v. Huffman that “the statute takes the water’s point of view: water is indifferent about who initially polluted it so long as pollution continues to occur.”[17] Because the District controlled the “point source”—the MS4—it was liable for the discharge of pollutants from that point source into the watercourses.
The court further held that the environmental organizations were entitled to a summary judgment with respect to the MS4’s discharges into the Los Angeles River and the San Gabriel River because the monitoring stations for those watercourses were located inside the MS4 before the point of discharge.[18] By contrast, the monitoring stations for the Santa Clara River and the Malibu Creek were located within the actual watercourses.[19] For those watercourses, the court stated that the environmental organizations would need to present evidence other than the measurements from the monitoring stations to rule out other potential contributors of pollution in those watercourses.[20] The court also found that there was insufficient evidence that the excess pollution measured by the monitoring systems was discharged into any of the four watercourses from storm-sewer systems controlled by the County, which is a separate legal entity from the District.[21]
Los Angeles River. Photo credit to dsearls.
Conclusion
By applying this end-of-pipe analysis, the court clarified how liability can be imposed under the CWA in situations when it is impossible to pinpoint which particular entity or operation contributed to the stormwater pollution. The court indicated that the CWA does not demand “that Plaintiffs engage in the Sisyphean task of testing particular storm drains in the County for the source of each pollutant.”[22] As a result of this holding, to avoid future liability, entities that control a “point source” will need to treat polluted stormwater before it is discharged in watercourses, even if they have not contributed to the pollution.
This is the second Ninth Circuit holding in less than a year to expand the scope of liability under the CWA. In the earlier case, Northwest Environmental Defense Center v. Brown, the court held that stormwater runoff flowing from roads “designed and constructed with systems of ditches, culverts, and channels that collect and convey stormwater runoff” constituted a “point source” for which an NPDES permit was required.[23] Read together, these two cases identify many entities that can potentially be held liable for discharge of polluted stormwater under the CWA. However, a very recent District Court decision has limited the potentially expansive scope of Brown, holding that pollutants discharged when stormwater flows down wooden utility poles need not to be regulated by a NPDES permit because such poles do not constitute a “point source.”[24] While entities controlling utility poles or other non-point source structures may not be liable for the pollution they generate, liability can be imposed on entities controlling the streets upon which the polluted stormwater flows if such streets are designed to channel stormwater toward a point source. Consequently, at least in theory, no stormwater pollution goes unregulated.
Santa Clara River draining into the Pacific Ocean, the ultimate destination of California stormwater runoff and pollution. Photo credit to ...-Wink-....
[*] Yana Welinder is an associate at Colantuono & Levin in Los Angeles, where she serves as Assistant City Attorney for the cities of Calabasas and Los Alamitos, advises clients on public law, and represents public entities in litigation.
[1] See 131 Cong. Rec. 15,657 (1985) (statement of Sen. Malcolm Wallop) (discussing the possible consequences of a statute to regulate individual sources of stormwater runoff).
[2] See Clean Water Act, 33 U.S.C. §§ 1251–1387 (2006).
[3] See Natural Res. Def. Council v. Cnty. of Los Angeles, 636 F.3d 1235 (9th Cir. 2011).
[4] Clean Water Act, 33 U.S.C. § 1311(a) (2006).
[5] Id. § 1362(12).
[6] Id. § 1362(6).
[7] Id. § 1362(14).
[8] Effluent limitations are restrictions on “concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters.” Id. § 1362(11). The restrictions are based on facility categories and are developed without regard to the existing pollution levels in watercourses.
[9] Water quality standards are additional restrictions that take into account the existing pollution levels in the watercourse where the pollutants are to be discharged.
[10] See Clean Water Act, 33 U.S.C. § 1342(a) (2006); see also id. §§ 1311, 1312, 1316–1318, 1343.
[11] The U.S. Environmental Protection Agency authorizes the State of California to issue NPDES permits and develop water-quality standards. The State, in turn, designated the State Water Resources Control Board as the principle agency to develop and enforce such standards.
[12] See Natural Res. Def. Council v. Cnty. of Los Angeles, 636 F.3d 1235, 1237 (9th Cir. 2011).
[13] See id. at 1240.
[14] See id. at 1242.
[15] See id. at 1250–51.
[16] See id. at 1252–53.
[17] W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 167 (4th Cir. 2010).
[18] See Natural Res. Def. Council v. Cnty. of Los Angeles, 636 F.3d 1235, 1252 (9th Cir. 2011).
[19] See id. at 1253.
[20] See id. at 1253–54.
[21] See id. at 1254.
[22] See id. at 1252.
[23] Nw. Envtl. Def. Ctr. v. Brown, No. 07-35266, 2011 WL 1844060, at *1 (9th Cir. May 17, 2011).
[24] See Ecological Rights Found. v. Pac. Gas and Elec. Co., No. C 09‒03704 SBA, 2011 WL 1302229, at *5 (N.D. Cal. Mar. 31, 2011).
Copyright 2011 Yana Welinder. All rights reserved.
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It is absolutely fundamental that the laws are clear and easy to understand if there is to be any chance of success.
Posted by: Lawn Sand | April 03, 2013 at 04:45 PM
This measure has the potential to be effective if applied stringently and with impunity. Another key to make this happen is the cooperation between all the parties involved. It will take a coordinated effort between the citizens, law enforcement, and other groups to safeguard against those who are committing the crime of irresponsibly disposing stormwater.
Posted by: Monica Barnes | August 15, 2012 at 08:45 AM
This is quite a comprehensive article about water pollution. Yes, there a lot of tangible ways to utilize storm water. Also, problems related to storm water pollution can be solved once a concrete plan is crafted.
Posted by: Emerson Paynode | November 10, 2011 at 09:17 AM
I agree that holding the end of the line regulators accountable is the right thing to do, but efforts should still be made to identify the original polluters. Imposing liability to the District should encourage the District to find a way to identify the source of the pollutants and pass the cost up the chain. This could ultimately result in tighter MS4 standards and run off treatment, where the operators could monitor the concentrations of certain pollutants passing through the system. Knowing what pollutants are posing the biggest problems could allow the District, or any interested party, to figure out who the big emitters of these types of pollutants are, and then apply costs appropriately. While not a precise art, it would help spread the costs more evenly and could encourage more responsible practices at the source.
Posted by: Jamie | October 17, 2011 at 12:17 PM
I don't see any feasible way to regulate stormwater discharge other than that approved by the Ninth Circuit here. Regulating individual NPS polluters is difficult and inefficient, and those who contribute small amounts of pollutants from non-centralized sources (lawn fertilizer, motor oil deposits, etc.), even if the aggregate pollution is significant, would escape liability as a practical matter. If the bottom line is the pollutant concentration in the discharged water, the buck cannot stop anywhere but the entity physically controlling the discharge.
Mitigating sources of polluted runoff, like agricultural sources, sediment from construction, road contaminants, and other NPS pollution is not the strength of the CWA. These problems can be addressed through other regulatory strategies, like silt fence requirements and low impact development regulations, but they don't fit comfortably within a discharge permit structure.
Posted by: Heather Welles | October 17, 2011 at 12:10 PM
The District’s argument on appeal—that the MS4 merely channels pollutants created by other municipalities—seems irresponsible at best. The Ninth Circuit got it right. The MS4 collects stormwater runoff from various municipalities and the discharge of pollutants from this runoff is governed by a NPDES permit. While the District may not be responsible for all the pollutants in the water, it still controls the point source—which places the District in the best position to monitor and limit pollution from incoming water
Posted by: Michelle | October 12, 2011 at 11:24 AM
It will be interesting to see the effects these decisions will have as far as distributing liability and costs for storm water pollution remediation. An easier mechanism would be to distribute the cost among everyone. But if technically possible, it would be best to transfer costs and liability to identifiable upstream polluters in order to incentivize pollution reduction at the source.
Posted by: Luis Pellerano | October 11, 2011 at 02:53 PM
It seems as though this article is really addressing one of the chief concerns with impervious surfaces. From my time working in the Chesapeake Bay with people harvesting oysters, I know that their concerns revolve around reducing runoff from the urbanized areas surrounding the Bay.
It seems fundamentally unfair to allow for no liability only because the polluter cannot be identified. This "end-of-pipe" analysis produces satisfactory policy outcomes as well. Holding the manager of the discharge liable encourages them to identify polluters (rather than allowing anonymous pollution) and if that isn't possible, it holds them responsible for behavior they facilitated.
Posted by: Cody Lonning | September 29, 2011 at 11:14 AM
This article presents a very interesting analysis of regulating storm water pollution. It seems to show that there soon may be more comprehensive way to use the CWA to achieve a better result. I'm curious about the last 2 sentences... If a street becomes a point source simply by channelling water, does this mean that cities will effectively have to take the responsibility and be the catch-all entity responsible for ALL "up-stream" pollution?
Posted by: meredith | September 19, 2011 at 11:09 AM
It's nice to know that these laws are being clarified and that in the future the "middle men" will be forced to take some responsibility.
Posted by: Mary Loum | September 19, 2011 at 11:06 AM