Supreme Court to Hear Two Significant Clean Water Cases

The Supreme Court of the United States (SCOTUS) has agreed to review two Ninth Circuit Court of Appeals Clean Water Act (CWA) cases. Both cases involve the extent to which certain releases are properly categorized as point source discharges and must accordingly be regulated by NPDES (National Pollutant Discharge Elimination System) permits under the CWA.

Is the conveyance of water from one part of a river to another properly defined as “discharge” under the CWA?

In Los Angeles Cty. Flood Control Dist. v. NRDC, the Supreme Court agreed to decide whether the Los Angeles County Flood Control District (District) was liable under the CWA for excessive pollution discharges into two California rivers. The question presented for review is whether there is “discharge” under the meaning of the CWA when water from one portion of a river flows through a municipal separate storm sewer system (MS4) into a lower portion of the same river.

The County argued that it could not be held liable for what was essentially a transfer of water between two points of the same water body. [1] The Ninth Circuit, however, found that the man-made MS4 system was distinct from the two navigable rivers, and that the discharge from a point source occurred when the polluted storm water flowed out of the concrete man-made channels and back into the navigable waterways. Because the District controlled the MS4 system – a point source of pollution – the court held that the District was discharging pollutants into the navigable portions of the Los Angeles and San Gabriel Rivers and was thus in violation of the CWA.

Are NDPES permits required for storm water runoff from logging roads?

SCOTUS also granted certiorari to review two consolidated cases, Decker v. Northwest Envtl. Defense Center and Georgia-Pacific West Inc. v. Northwest Envtl. Defense Center, where the Ninth Circuit determined that storm water runoff from logging roads requires a NPDES permit under the CWA.

Oregon officials had argued that the runoff at issue was subject to the EPA’s “Silviculture Rule,” which exempts natural runoff from silvicultural activities from the CWA’s definition of point source. Non-point source runoff is exempt from CWA permitting requirements and is left instead to state regulation. The Ninth Circuit rejected this argument and held that logging roads are point sources that must be regulated by NPDES permits.

Because the logging activities at issue collect storm water runoff through a system of ditches, culverts, and channels, which is then discharged into nearby streams and rivers, the Ninth Circuit held that this type of runoff falls under the CWA’s definition of a point source (“any discernible, confined and discrete conveyance”) and is thus not exempt by the Silvicultural Rule. The court of appeals further reasoned that because storm water discharges from forest roads are “associated with industrial activity,” they must be covered by the CWA. [2]

SCOTUS agreed to review the question of whether the Ninth Circuit should have deferred to the EPA’s position that channeled runoff from forest roads is not a “point source” and does not require an NPDES permit.

Regardless of which way SCOTUS decides, the holdings in both cases will have a major impact on the scope of the EPA’s permitting authority under the CWA, which will in turn have significant implications for regulated entities.