U.S. Supreme Court Refuses to Consider Los Angeles County Appeal of Clean Water Act Municipal Stormwater Permit Decision

Published May 12, 2014

Tupper Mack Wells attorney Lynne Cohee keeps us updated on the Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. case.  In the latest development in this long-running case, this week the U.S. Supreme Court denied a petition for certiorari filed by Los Angeles County and the Los Angeles County Flood Control District.  The District and County sought review of an August 2013 Ninth Circuit remand decision finding them liable for violations of an NPDES municipal stormwater permit based on evidence of pollution exceedances at mass emissions monitoring stations.  The monitoring stations measure pollutants in stormwater originating from thousands of upstream storm drains, pipes, and outfalls operated by the County, District and thousands of other co-permittees.  In January 2013 the Supreme Court had reversed an earlier Ninth Circuit finding of liability against the District, sending the case back to the Ninth Circuit.  On remand the Ninth Circuit once again ruled in favor of the environmental groups, this time on an entirely different legal theory that it had previously rejected.

The Supreme Court's refusal to review the Ninth Circuit's remand decision is a victory for the environmental groups, but the case still isn't quite over.   Although the Ninth Circuit found the District and County liable, it left to the U.S. District Court the task of determining the appropriate remedy for the permit violations, including which upstream entities are ultimately responsible for the pollutant discharges.  Interestingly, the NPDES permit at issue in the case was updated in 2012.  It no longer relies solely on mass emissions stations, instead requiring water quality monitoring at individual upstream outfall points.