By Lisa Soronen
As previously predicted in the Thicket, the Supreme Court’s decision involving MS4s will probably be its easiest of the term. The Court’s decision is a mere five pages, and was issued a little over a month after oral argument.
Now, for a brief MS4 refresher: MS4 is short for municipal separate storm sewer systems. MS4s are a system of sewers that collect stormwater.
The controversy in Los Angeles County Flood Control District v. Natural Resources Defense Council was over whether the Los Angeles County Flood Control District (LACFCD) was responsible under the Clean Water Act (CWA) for the polluted water that flowed out of the concrete-lined portions of the rivers because LACFCD controlled the concrete channels, regardless of the fact that thousands of other dischargers discharged into the rivers upstream of the concrete channels.
So why was this case so simple? Per the CWA, the “discharge of a pollutant” (which creates liability under the Act) means “any addition of any pollutant to navigable waters from any point source.” In South Florida Water Management District v. Miccosukee Tribe the Supreme Court held that an “addition” of a pollutant only occurs if a pollutant is transferred from one “meaningfully distinct” water body into another. In that case polluted water was removed from a canal, transported through a pump station, and deposited into a nearby reservoir. The and Local Legal Center’s (SLLC) amicus brief, which NCSL signed onto, argued that the segments of the rivers above and below the channeled portions of the rivers in this case aren’t “meaningfully distinct,” so no addition of a pollutant has occurred. The Supreme Court agreed that: “[i]t follows…from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a body of water, simply flows from one portion of the water body to another.”
The SLLC argued in its amicus brief that states regulate water quality in MS4s and federal regulation is redundant. While the Court didn’t rely on this argument in its brief opinion, a win is a win. The significance of this case is that the Court did not expand the definition of “discharge of pollutants,” a key term in the CWA.