By Lisa Soronen
The Supreme Court’s decision involving MS4s might be its easiest decision of the term. But what is an MS4 and what do they have to do with state legislatures?
An MS4 is short for municipal separate storm sewer systems. MS4s are a system of sewers that collect stormwater. State governments regulate stormwater runoffs in MS4s.
The controversy in Los Angeles County Flood Control District v. Natural Resources Defense Council is over whether the Los Angeles County Flood Control District has violated a federal permit because of the level of pollutants from stormwater that it gathers in MS4s located in two California Rivers. The State and Local Legal Center (SLLC) filed an amicus brief in this case, which NCSL signed onto.
Now, why might this case be so simple? The technical legal question the court agreed to decide in this case is whether the transfer of water within a single body of water through an MS4 constitutes an addition of any pollutant under the Clean Water Act. In 2004 in South Florida Water Management District v. Miccosukee Tribe the Supreme Court held an addition of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another. The SLLC’s brief argues that the segments of the rivers above and below the MS4s in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred. This seems like a foregone conclusion; the MS4s are parts of both rivers.
As SLLC’s brief points out, the Ninth Circuit “failed to determine . . . whether the segments of the rivers above and below [MS4] were the same bodies of water or different bodies of water, and apparently attached no significance to the question.” From the SLLC’s perspective, the Ninth Circuit simply ignored the Supreme Court’s holding in Miccosukee Tribe.
It seems unlikely the court is going to say it didn’t actually mean what it said in Miccosukee Tribe. After all, this isn’t one of those cases where changing social values or new information might convince the court to change its mind.
The bottom line for states is that they regulate water quality in MS4s and federal regulation is redundant. While all signs point towards the Supreme Court applying Miccosukee Tribe and concluding the CWA does not apply in this case, only time will tell.
A date for oral arguments in this case has not yet been set. The Supreme Court will issue an opinion in this case by June 30, 2013.
Lisa Soronen is the Executive Director of the State and Local Legal Center located in Washington, D.C.
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