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Supreme Court Rules L.A. County Not Responsible for Polluted Waters

Court decision is a blow to environmentalists who wanted the county to clean copper, fecal bacteria and other pollutants from L.A. rivers before it reached the ocean.

Los Angeles County will not be held liable for cleaning contaminated water before it is discharged into the ocean, the U.S. Supreme Court unanimously ruled on Tuesday. 

The decision reverses a prior ruling by a three-judge 9th U.S. Circuit Court of Appeals panel that sided with environmental groups and held L.A. County responsible for treating pollutants collected from the 85 cities and 104 unincorporated communities in the county before they flow into the Pacific. 

“The county has managed to game the system in a way that has allowed the pollution of our waterways to go unaddressed for many years,” said Liz Crosson, executive director of L.A. Waterkeeper, one of the plaintiffs. “The county is the largest source of stormwater pollution to local waterways, and today it has escaped accountability, but only temporarily.”

The L.A. County Flood Control District operates 500 miles of open channels and 2,800 miles of storm drains that collect runoff, and it argued that the polluted water was merely conveyed from one area to the other, not created by the Flood District. In favor, the Supreme Court noted that the flow of water “between two parts of the same water body” does not constitute a pollutant discharge under the Clean Water Act.

The finding is consistent with a 2004 Supreme Court case between the South Florida Water Management District and the Miccosukee tribe in which the court determined that pumping polluted water from one part of a water body to another is not considered a “discharge of pollutants” under the CWA.

Under the CWA, “any addition of any pollutants to navigable waters from any point source” is interpreted as a discharge of a pollutants. But since the Flood District does not add any pollutants to Los Angeles area rivers, it is therefore not liable simply for the transfer of such pollutants, the Supreme Court ruled.

The decision stems from a 2008 lawsuit filed by the Natural Resources Defense Council and L.A. Waterkeeper, alleging that the Flood District knowingly and willingly discharged contaminated water back into the rivers and was in violation of its CWA permit.

“We’ll continue to seek to hold the Los Angeles County Flood Control District responsible for cleaning up its water pollution,” said Steve Fleischli, senior attorney and director of NRDC’s national water program. “Unless something changes, stormwater pollution will continue to sicken up to one million people in Southern California every year, while local government turns a blind eye and avoids basic infrastructure solutions that will protect people, preserve water quality and increase water reserves.”

Pollutants such as copper, zinc, cyanide, aluminum and fecal bacteria flow into the ocean during storms, and the nonprofits were hoping the lawsuit would force the Flood District to implement green infrastructure to capture at least some of the contaminants. 

The Flood District estimated it would have needed to spend billions to comply with an unfavorable ruling. It already works with cities and municipalities to reduce storm runoff, according to Gary Hildebrand, assistant deputy director of the Flood District.

John Mazza January 09, 2013 at 05:14 PM
Did Malibu blow $6.5 million when it settled with the NRDC before this decision ? I do not know the answer but I sure hope not. That is a lot of money that the city does not have.
Hans Laetz January 09, 2013 at 05:51 PM
Agreed. This is not the court's fault, it is the Congress's fault for writing a rule with a giant loophole in it. But one cannot say that LA County did not take advantage of that giant loophole to escape its moral obligation to clean up the LA River. The lack of upstream pollution controls and mitigation in LA is shocking.
Hans Laetz January 09, 2013 at 05:53 PM
Oh, yeah, Wendi, all those shopping carts and globs of motor oil in the LA River are natural bacteria, going shopping at the Vons in Alhambra.
Hans Laetz January 09, 2013 at 05:58 PM
No, John. The Supreme Court decision was on whether the Clean Water Act applies to dirty water that goes through concrete flood control channels. Is the agency that owns the concrete channel responsible for the dirty water transported by it? No, says the court. Big deal, says the losers, because LA County is now going to measure the dirty water coming INTO the LA River, instead of only the dirty water flowing out. Net result equals a delay in the cleanup, but not the end of the cleanup. This case's facts and law are not applicable at all to the myriad other sections of the Clean Water Act, which was signed into law by President Nixon 42 years ago, back when Republicans cared about water pollution. Interesting, though, how filthy water being dumped into the ocean seems to have developed a constituency in Malibu ...
John Wesly Hardin IV January 09, 2013 at 10:51 PM
So whats with their plan to tax us for cleaning it? Will non land owners be forced to swim in a polluted pool because as a tax paying property owner, they are freeloaders!
John Mazza January 09, 2013 at 11:16 PM
Then my question is,why did the city of Malibu , as part of the settlement obligate itself to spend $4.5 million on storm drains etc which I assume are very similar in the law to "concrete channels" because we had dirty water?
Stuart Ebert January 10, 2013 at 02:31 AM
Climate change, extreme drought and LACK of runoff are the real problems facing Santa Monica Bay. Runoff from the mountains provides sand for beach replenishment and nutrients for the food chain. That's how it works. Beaches all along SoCal are shrinking fast because of reduced rainfall/runoff.
Fred Reardon January 10, 2013 at 04:12 AM
We should've invited the Supreme Court to paddle out in the Pacific, Santa Monica Bay, and experience the nastiness. Pollution is killing this planet.
Wendi Werner January 10, 2013 at 04:12 AM
Hans, why must you always spin what the truth is and write as if you are the only one who knows all? This is indeed a complicated issue, but by no means did the lawsuit give a hall pass to pollute.
Douglas Fay January 10, 2013 at 04:17 AM
No Stuart, the Santa Monica Bay Restoration Commission/Foundation, Heal The Bay, LA WaterKeeper, and all of the greedy tag alongs that they financially sustain have plagued the Santa Monica Bay and will continue until stopped. This paragraph is humorous: Steve Fleischli, senior attorney and director of NRDC’s quote "while local government turns a blind eye and avoids basic infrastructure solutions that will protect people, preserve water quality and increase water reserves.” LA County, HTB, LA WaterKeeper, the City of Malibu, and every other minicipality in the SMB watershed sit on the SMBRC. Yes, politically speaking they're in bed with each other. The public is being duped. For 50 years my father Dr. Rimmon C. Fay fought the broken politics of the SMB and it killed him. I've attempted to reason with them to no avail. Yes, urban runoff is part of the problem. Don't underestimate Hyperion's discharges. Even though treated, the particles are causing significant losses that are insurmountable. On January 3rd, while diving outside Marina Del Rey at a depth of 70 feet, I looked up and saw countless numbers of bat rays. They're in for the squid that are also abundant this year. The problem is the visibility was less than acceptable. Our greatest treasure is being destroyed and everyone involved in the broken politics of the SMBRC are responsible. I'll publicly debate anyone who asserts otherwise.
Marshall Thompson January 10, 2013 at 04:26 AM
Stuart, did you experience the same Malibu winter as I did? It has been raining on and off for months, including tomorrow. Any costs of environment should be borne by all who use and benefit from it, not just property owners or even individual municipalities. That's why I like VATs or (reasonable) sales taxes because everybody has to pay into the system.
michele Zack January 10, 2013 at 04:31 AM
It would be so refreshing to replace finger pointing at each other by every agency and government entity that could possibly represent the people who live here — with good faith collaborations to help find collective solutions and mechanisms to reduce the non-point pollution that trickles into our storm water system and finds its way to the ocean. This problem belongs to all of us.
Wendi Werner January 10, 2013 at 04:37 AM
So let me understand this. The Federal court decided that water was not a pollutant. Now, the next step to stop wasting money is for the courts to confirm that natural bacteria from birds and kelp wracks are also not pollution. They are not pollution and should never be treated as such.
Wendi Werner January 10, 2013 at 04:52 AM
Two totally separate issues.
Ivan G January 10, 2013 at 06:12 AM
You can find the Supreme Court's opinion here: http://www.supremecourt.gov/opinions/12pdf/11-460_3ea4.pdf The summary of holding is: Held: The flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the CWA. See South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109–112 (holding that the transfer of polluted water between “two parts ofthe same water body” does not constitute a discharge of pollutants under the CWA).
Ivan G January 10, 2013 at 06:14 AM
However, that was not the issue presented to the Court and is not pertinent to their decision.
Hans Laetz January 10, 2013 at 04:12 PM
Wendi, we simply disagree. You seem to view antipollution rules (Ike the TMDLs) as something evil and bad. I don't. I understand why any dispassionate discussion of water pollution law threatens the amateurs and profiteer s who tried to misuse the law to block the Malibu Lagoon muck removal project.
Hans Laetz January 10, 2013 at 04:20 PM
Wendi is correct. The Supreme Court ruled that the Clean Water Act was not written to place sanctions for water pollution that is conveyed by an agency in a concrete river, as opposed to water pollution that is generated within an agency. The court case turned on the ridiculous and intentional failure if LA County to measure pollution levels in cruddy water from inland cities as it entered the LA River. By failing to do that, the inland cities were left off the hook and the county could say with a straight face "yes the river is polluted at Long Beach but we don't know why." The new local rules require the county now to measure upstream pollution, so the Supreme Court case is pretty moot. Wendi is right about that also
Hans Laetz January 10, 2013 at 04:26 PM
Nope. The SC ruled that Congress wrote the law to prohibit Downstream agencies from being responsible for pollution generated in upstream jurisdictions, which is at some point carried in a concrete channel. For example, Malibu cannot be held responsible for Malibu Lagoon pollution caused in Medea Creek, which is a concrete channel. That does not let Malibu off the hook for pollution that is generated within Malibu.
Hans Laetz January 10, 2013 at 04:37 PM
"The federal court decided that water was not a pollutant." ???? Where in the decision did it say that? No. That is not what was decided at all. The court ruled on a very narrow issue about concrete river channels and who is responsible for the pollution in them. It most certainly did not rule that "water is not a pollutant." Wendi, you have a habit of cherry picking little snips and tidbits of science or court documents and then spreading incomplete accounts. Read the court decision. Or the LA Times. The court did not do what you said.
Cece Stein January 10, 2013 at 04:59 PM
Wendi, we could take you more seriously if we could be confident that you understand and speak out about much more serious human sourced pollution problems outside of your bird poop and kelp wrack bacteria crusade. I also love how you accuse anyone with an opposing opinion to yours as "spinning the truth". Give me a break. It's getting really old.
Sean January 10, 2013 at 05:21 PM
don't ask me to pay for storm water treatment in an upcoming parcel tax going on the ballot this spring... if the county is not responsible why would I be, I live a few blocks from the beach, and have virtually no runoff from my property didn't we already fund this years ago? were did that money go? vote no on this upcoming proposition
Hans Laetz January 10, 2013 at 05:25 PM
We have a regional problem, and you as a beachdweller will get more benefit out of this tax than people inland will. For hundreds of years, upstream cities have trashed Ballona Creek and the LA River. Our areas has virtually no onsite recharge requirements, or other simple (and not expensive) solutions to stormwater runoff. No, we did not fund this years ago, The unmet need is huge. If Cleveland can clean up the flammable Cuyahoga River, then LA can clean up the LA River, Ballona Creek and the others. Yes, it takes money, That money stays local, generates jobs, and cleans up the ocean. Win win win. Except for the tea party.
M Stanley January 10, 2013 at 05:35 PM
Sounds personal Cece, not one bit centered around the topic or contributing anything. Time for a refresher course on Patch Terms of Use!! While we encourage people to be honest and post what’s on their mind, communities thrive when people care about each other, and as such, Patch expects all of its users to be respectful of others. This means that whether you are being complimentary or critical, whether you are agreeing or disagreeing with the subject of an article or another user’s comment, you should act in a civil manner and refrain from personal attacks – after all, these are your neighbors
Cece Stein January 11, 2013 at 01:40 AM
Dear Mari Stanley, If someone thinks I need a refresher course on the terms of use on PATCH Jessica is most certainly welcome to email me. The last person I need a reminder from is you of all people. Since you are so well versed in the terms of use on PATCH, you might to look at the history of Wendi's comments and there you will find a physical, violent threat towards Steve Woods that should have been reported to the police. Do your homework.
Jenelle James January 11, 2013 at 03:14 AM
Meow - get thsi person a saucer of milk and fast!
Bu local January 11, 2013 at 03:16 AM
Let's stretch the definition of natural occurring bacteria to envelop decaying plant matter, bird carcasses, various sea life species washing ashore due to molting/death/partial consumption by predatory animals and such. Malibu has a huge amount of open space that produces a lot of natural occurring bacteria and I would prefer to keep it that way rather than being held to the same measurements as inland concrete jungles with little green space much less natural, open space. If we are to be held hostage to these arcane measurements, then we should be removing all vegetation within 200 yds of all waterways, kill every animal within our boundaries and put up massive walls to keep natural species from entering and finish off with a dome to keep all birds from entering the airspace. THEN we can begin to deal with the actual, human borne pollutants that are within our controls and can be reduced to acceptable levels as deemed by the unelected and nongovernmental agencies that refuse to acknowledge natural occurring sources of bacteria. Malibu would have to be a moonscape to comply with the measurement standards as they currently exist in order to accomodate the bird poop and the various marine species that impact our shores by simply living, reproducing and dying. Malibu is unique, let's keep it that way and continue to embrace Nature even if she brings her boyfriend Bacteria as her date to the party.
Hans Laetz January 11, 2013 at 03:19 AM
Cece's right. MAri's right. Wendi is a person who I would buy a coffee for any day. This damn intertube has us all at each other's throats over polite disagreements. I need to remember that. Everyone does, I might suggest.. .
Wendi Werner January 11, 2013 at 03:31 AM
This came to me today from Gilchrist & Rutter law offices LOS ANGELES COUNTY CONSIDERING PARCEL TAX FOR ALL PROPERTY OWNERS IN THE COUNTY On Tuesday, January 15, the Los Angeles County Board of Supervisors is considering proceeding with an illegal Parcel Tax (in the guise of a fee) that would affect all properties in the County. The tax would provide funding for localities to comply with the Federal Clean Water Act. Depending on the size and nature of the parcel, the tax could exceed $40,000 per parcel (not per project) annually. Gilchrist & Rutter has indicated to the County that the form and process being used to obtain voter approval is illegal and in violation of Proposition 218. No specific projects and solutions have been identified in violation of Proposition 218. Each parcel whether it is fifty (50) acres or one-quarter (¼) of an acre would have equal voting rights, also a violation of State law. If you have questions and want to determine how this will impact your property, please contact either Richard Close at the Firm or the attorney who you normally work with.
Wendi Werner January 11, 2013 at 04:30 AM
Well said, Douglas.

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