L. A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc.

• Decision Date: 08 January 2013
• Docket Number: No. 11–460.,11–460.
• Citation: 184 L.Ed.2d 547,133 S.Ct. 710,568 U.S. 78
• Parties: LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.
• Court: U.S. Supreme Court

568 U.S. 78

133 S.Ct. 710

184 L.Ed.2d 547

LOS ANGELES COUNTY FLOOD CONTROL DISTRICT

v.NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.

No. 11–460.

Supreme Court of the United States

Argued Dec. 4, 2012.

Decided Jan. 8, 2013.

Timothy T. Coates, Los Angeles, CA, for Petitioner.

Pratik A. Shah, for United States as amicus curiae.

Aaron Colangelo, Washington, DC, for Respondents.

Timothy T. Coates, Greines, Martin, Stein & Richland LLP, Los Angeles, California, John F. Krattli, County Counsel, Judith A. Fries, Principal Deputy, Laurie E. Dods, Deputy County Counsel, Los Angeles, California, Howard Gest, David W. Burhenn, Burhenn & Gest LLP, Los Angeles, California, for Petitioner Los Angeles County Flood Control District.

Richard J. Lazarus, Cambridge, MA, Daniel Cooper, San Francisco, CA, Aaron Colangelo, Mitchell S. Bernard, Catherine Marlantes Rahm, Steven Fleischli, Washington, DC, for Respondents.

Justice GINSBURG delivered the opinion of the Court.

The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq., does the flow of water out of a concrete channel within a river rank as a "discharge of a pollutant"? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is "no." They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–112, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004), in which we accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We therefore reverse that court's judgment.

Petitioner Los Angeles County Flood Control District (District) operates a "municipal separate storm sewer system" (MS4)—a drainage system that collects, transports, and discharges storm water. See 40 CFR § 122.26(b)(8) (2012). See also § 122.26(b)(13) ("Storm water means storm water runoff, snow melt runoff, and surface runoff and drainage."). Because storm water is often heavily polluted, see 64 Fed.Reg. 68724–68727 (1999), the CWA and its implementing regulations require the operator of an MS4 serving a population of at least 100,000 to obtain a National Pollutant Discharge Elimination System (NPDES) permit before discharging storm water into navigable waters. See 33 U.S.C. §§ 1311(a), 1342(p)(2)(C), and (D) ; 40 CFR §§ 122.26(a)(3), (b)(4), (b)(7). The District first obtained a NPDES permit for its MS4 in 1990; thereafter, the permit was several times renewed. Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880, 886 (C.A.9 2011).

Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and several other defendants under § 505 of the CWA, 33 U.S.C. § 1365. They alleged, among other things, that water-quality measurements from monitoring stations located within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit.

The District Court granted summary judgment to the District on these claims. It was undisputed, the District Court acknowledged, that "data from the Los Angeles River and San Gabriel River [monitoring] stations indicate[d] that water quality standards ha[d] repeatedly been exceeded for a number of pollutants, including aluminum, copper

, cyanide, fecal coliform bacteria, and zinc." App. to Pet. for Cert. 108. But numerous entities other than the District, the court added, discharge into the rivers upstream of the monitoring stations. See id., at 115–116. See also 673 F.3d, at 889 (observing that the pollutants of "thousands of permitted dischargers" reach the rivers). The record was insufficient, the District Court concluded, to warrant a finding that the District's MS4 had discharged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations.

The Ninth Circuit reversed in relevant part. The monitoring stations for the Los Angeles and San Gabriel Rivers, the Court of Appeals said, are located in "concrete channels" constructed for flood-control purposes. Id., at 900. See also id., at 889 (describing the monitoring stations' location). Based on this impression, the Court of Appeals held that a discharge of pollutants occurred under the CWA when the polluted water detected at the monitoring stations "flowed out of the concrete channels" and entered downstream portions of the waterways lacking concrete linings. Id., at 900. Because the District exercises control over the concrete-lined portions of the rivers, the Court of Appeals held, the District is liable for the discharges that, in the appellate court's view, occur when water exits those concrete channels. See id., at 899–901.

We granted certiorari on the following question: Under the CWA, does a "discharge of pollutants" occur when polluted water "flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river," and then "into a lower portion of the same river"? Pet. for Cert. i. See 567 U.S. ––––, 133 S.Ct. 23, 183 L.Ed.2d 673 (2012). As noted above, see supra, at 711, the parties, as well as the United States as amicus curiae, agree that the answer to this question is "no."

That agreement is hardly surprising, for we held in Miccosukee that the transfer of polluted water between "two parts of the same water body" does not constitute a discharge of pollutants under the CWA. 541 U.S., at 109–112, 124 S.Ct. 1537. We derived that determination from the CWA's text, which defines the term "discharge of a pollutant" to mean "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12) (emphasis added). Under a common understanding of the meaning of the word "add," no pollutants are "added" to a water body when water is merely transferred between different portions of that water body. See Webster's Third New International Dictionary 24 (2002) ("add" means "to join, annex, or unite (as one thing to another) so as to bring about an increase (as in number, size, or importance) or so as to form one aggregate"). "As the Second Circuit [aptly] put it ..., ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not "added" soup or anything else to the pot.’ " Miccosukee, 541 U.S., at 109–110, 124 S.Ct. 1537 (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F.3d 481, 492 (C.A.2 2001) ).

In Miccosukee, polluted water was removed from a canal, transported through a pump station, and then deposited into a nearby reservoir. 541 U.S., at 100, 124 S.Ct. 1537. We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were ...