Natural Res. Def. Council, Inc. v. Cnty. of L.A.

• Decision Date: 08 August 2013
• Docket Number: No. 10–56017.,10–56017.
• Citation: 725 F.3d 1194
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC.; Santa Monica Baykeeper, Plaintiffs–Appellants, v. COUNTY OF LOS ANGELES; Los Angeles County Flood Control District; Michael Antonovich, in his official capacity as Supervisor; Yvonne Burke, in her official capacity as Supervisor; Gloria Molina, in her official capacity as Supervisor; Zev Yaroslavsky, in his official capacity as Supervisor; Dean D. Efstathiou, in his official capacity as Acting Director of Los Angeles County Department of Public Works; Don Knabe, in his official capacity as Supervisor, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

725 F.3d 1194

NATURAL RESOURCES DEFENSE COUNCIL, INC.; Santa Monica Baykeeper, Plaintiffs–Appellants,

v.COUNTY OF LOS ANGELES; Los Angeles County Flood Control District; Michael Antonovich, in his official capacity as Supervisor; Yvonne Burke, in her official capacity as Supervisor; Gloria Molina, in her official capacity as Supervisor; Zev Yaroslavsky, in his official capacity as Supervisor; Dean D. Efstathiou, in his official capacity as Acting Director of Los Angeles County Department of Public Works; Don Knabe, in his official capacity as Supervisor, Defendants–Appellees.

No. 10–56017.

United States Court of Appeals,Ninth Circuit.

Aug. 8, 2013.

Aaron Colangelo, Natural Resources Defense Council, Washington, D.C.; Daniel Cooper, Lawyers for Clean Water, San Francisco, CA, for Plaintiffs–Appellants.

Andrea Sheridan Ordin, Judith A. Fries, Laurie Dods, Los Angeles County Department of County Counsel, Howard Gest and David W. Burhenn, Burhenn & Gest LLP, Los Angeles, CA, for Defendants–Appellees.

On Remand from the United States Supreme Court. D.C. No. 2:08–cv–01467–AHM–PLA.

Before: HARRY PREGERSON and MILAN D. SMITH, JR., Circuit Judges, and H. RUSSEL HOLLAND, Senior District Judge.^*

OPINION

M. SMITH, Circuit Judge:

Plaintiffs–Appellants Natural Resources Defense Council and Santa Monica Baykeeper (collectively, the Plaintiffs) filed suit against the County of Los Angeles and the Los Angeles County Flood Control District (collectively, the County Defendants) alleging that the County Defendants are discharging polluted stormwater in violation of the terms of their National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to the Federal Water Pollution Control Act (the Clean Water Act, Act, or CWA), 86 Stat. 816, codified as amended at 33 U.S.C. §§ 1251, et seq. The district court granted the County Defendants' motion for summary judgment, reasoning that Plaintiffs failed to prove that any individual defendant had discharged pollutants in violation of the Clean Water Act, where Plaintiffs' only evidence of violations was monitoring data taken downstream of the County Defendants' (and others') discharge points, as opposed to data sampled at the relevant discharge points themselves. On appeal, we affirmed the district court's judgment in part and reversed in part. Natural Res. Def. Council, Inc. v. Cnty. of L.A., 673 F.3d 880 (9th Cir.2011). On January 8, 2013, the Supreme Court reversed our judgment and remanded this case to us for further proceedings. L.A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., ––– U.S. ––––, 133 S.Ct. 710, 184 L.Ed.2d 547 (2013). On February 19, 2013, we ordered the parties to file supplemental briefs addressing the implications of the Supreme Court's ruling. Having considered the Supreme Court's ruling, the responses of the parties in their supplemental briefs, and other matters noted herein, we now conclude that the pollution exceedances detected at the County Defendants' monitoring stations are sufficient to establish the County Defendants' liability for NPDES permit violations as a matter of law. Accordingly, we once again reverse the district court's grant of summary judgment in favor of the County Defendants, and remand to the district court for a determination of the appropriate remedy for the County Defendants' violations.

FACTUAL BACKGROUND

I. Stormwater Runoff in Los Angeles County

Stormwater runoff is surface water generated by precipitation events, such as rainstorms, which flows over streets, parking lots, commercial sites, and other developed parcels of land. When stormwater courses over urban environs, it frequently becomes polluted with contaminants, such as “suspended metals, sediments, algae-promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw sewage, [and] pesticides[.]” ¹Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 840 (9th Cir.2003). This polluted stormwater often makes its way into storm drains and sewers, which “generally channel collected runoff into federally protected water bodies,” id., such as rivers and oceans. Consequently, stormwater runoff has been recognized as “one of the most significant sources of water pollution in the nation, at times comparable to, if not greater than, contamination from industrial and sewage sources.” Id. (citation omitted).

Los Angeles County (the County) is home to more than 10 million people and covers a sprawling amalgam of populous incorporated cities and significant swaths of unincorporated land. The Los Angeles County Flood Control District (the District) is a public entity governed by the Los Angeles County Board of Supervisors and the Los Angeles County Department of Public Works. The District comprises 84 cities and some unincorporated areas of the County. The County and the District are separate legal entities.

Each city in the District operates a municipal separate storm sewer system (ms4) ² that is composed of gutters, catch basins, storm drains, and pipes that collect and convey stormwater. The County also operates its own ms4 that primarily collects and conveys stormwater runoff in the unincorporated areas of the County. Each of these ms4s connects to the District's substantially larger ms4, an extensive flood-control and storm-sewer infrastructureconsisting of approximately 500 miles of open channels and 2,800 miles of storm drains. Because a comprehensive map of the County Defendants' storm sewer system does not exist, no one knows the exact size of the LA MS4 ³ or the locations of all of its storm drain connections and outfalls.⁴ But while the number and location of storm drains and outfalls are too numerous to catalog, it is undisputed that the LA MS4 collects and channels stormwater runoff from across the County. It is similarly undisputed that untreated stormwater is discharged from LA MS4 outfalls into various watercourses, including the Los Angeles and San Gabriel Rivers. ⁵ These rivers, in turn, drain into several coastal waters, including, among others, the Santa Monica Bay and the Pacific Ocean.

II. The County Defendants' NPDES Permit

Section 301(a) of the CWA prohibits the “discharge of any pollutant” from any “point source” into “navigable waters” unless the discharge complies with certain other sections of the CWA.⁶See33 U.S.C. § 1311(a). One of those sections is section 402, which provides for the issuance of NPDES permits. 33 U.S.C. § 1342. In nearly all cases, an NPDES permit is required before anyone may lawfully discharge a pollutant from a point source into the navigable waters of the United States. See Arkansas v. Oklahoma, 503 U.S. 91, 101–02, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992); Environmental Law Handbook 323 (Thomas F.P. Sullivan ed., 21st ed.2011).

Congress has empowered the EPA Administrator to delegate NPDES permitting authority to state agencies. 33 U.S.C. § 1342(b). Pursuant to this authority, the EPA has authorized the State of California to develop water quality standards and issue NPDES permits. Pursuant to the Porter–Cologne Water Quality Control Act, California state law designates the State Water Resources Control Board and nine regional boards as the principal state agencies charged with enforcing federal and state water pollution laws and issuing NPDES permits. SeeCal. Water Code §§ 13000 et seq. The entity responsible for issuing permits in the Los Angeles area is the California State Water Resources Control Board for the Los Angeles Region (the Regional Board).

On June 18, 1990, the Regional Board first issued an NPDES permit (the Permit) regulating stormwater discharges by the County, the District, and the 84 incorporated municipalities in the District (collectively, the Permittees). The Permit has subsequently been renewed or amended several times, and the version of the Permit at issue in this litigation came into force on December 13, 2001.⁷ The Permit covers all relevant discharges that occur “within the boundaries of the Permittee municipalities ... over which [the municipalities have] regulatory jurisdiction as well as unincorporated areas in Los Angeles County within the jurisdiction of the Regional Board.”

The Permit runs to 99 pages and contains a myriad of rules, regulations, and conditions regarding the Permittees' operation of the LA MS4. However, only two sets of the Permit's provisions are particularly relevant to this appeal; those contained in Part 2, titled “Receiving Water Limitations,” and those contained in the section titled “Monitoring and Reporting Program.”

Part 2 places limits on the type and amount of pollutants the Permittees may lawfully discharge from the LA MS4. Specifically, Part 2 prohibits “discharges from the [LA] MS4 that cause or contribute to the violation of the Water Quality Standards or water quality objectives.” ⁸ The Permit defines “Water Quality Standards and Water Quality Objectives” as “water quality criteria contained in the Basin Plan, the California Ocean Plan, the National Toxics Rule, the California Toxics Rule, and other state or federal approved surface water quality plans.” ⁹ Succinctly put, the Permit incorporates the pollution standards promulgated in other agency documents such as the Basin Plan, and prohibits stormwater discharges that “cause or contribute to the violation” of those incorporated standards. The Permit further provides that the Permittees “shall comply” with the LA MS4 discharge prohibitions outlined in Part 2 “through timely implementation of control measures and other actions to reduce pollutants in the[ir LA MS4] discharges....”

The Monitoring and Reporting Program complements Part 2. Under that program, the Permittees are required to monitor the impacts of their LA MS4 discharges on water quality and to publish the results of all pollution monitoring at least annually. The primary objectives of the monitoring program include “assessing compliance” with the Permit, “measuring and improving the effectiveness” of the...