U.S. Supreme Court Overturns Effort to Hold Stormwater Permit Holder Liable for Condition of Waters Passing Through

The United States Supreme Court, in a unanimous ruling, has acted to limit a potential liability of municipalities and other stormwater permit holders with respect to the condition of waters entering and passing through their jurisdictions.  In a short opinion issued on January 8, the Court ruled in LOS ANGELES COUNTY FLOOD CONTROL DISTRICT v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., that the Flood District could not be held responsible under its municipal separate storm sewer system (stormwater) permit for the polluted condition of waters passing through its jurisdiction.

The Court’s action reversed a decision by the Ninth U.S. Circuit Court of Appeals, which had found that water moving from channelized or concreted portions of a river to an unchannelized portion of the same river constituted a discharge subject to evaluation under the District’s discharge permit.  The Supreme Court cited its earlier 2004 opinion SOUTH FLORIDA WATER MANAGEMENT DISTRICT v. MICCOSUKEE TRIBE OF INDIANS, 541 U.S. 95, noting it had held there that transporting water between two sections of the same water body does not constitute a discharge subject to regulation under the Clean Water Act.   Instead, the Court explained that the CWA regulates discharges and that those only occur if a pollutant is added to the water body from a point source.  Justice Ginsburg, writing for the Court, concluded that “no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another.”  This was true even though improvements had been made in portions of the water body’s channel, in this instance, to enhance flood control efforts.

This case has been watched with particular interest by jurisdictions and other entities that may channelize or otherwise direct water through areas or activities under their control.  This includes not only municipalities and watershed districts, but entities such as state and local departments of transpiration.  At least some of these entities in our region have faced similar claims and threats of litigation from environmental groups.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

U.S. Supreme Court Issues Clean Water Act Opinion

On January 8, 2013, the U.S. Supreme Court, in a unanimous decision reversing the Ninth Circuit Court of appeals, held that “the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the CWA. Because the decision below  cannot be squared with that holding, the Court of Appeals judgment must be reversed.” LA County Flood Control District v. NRDC.

Pursuant to its MS4 permit, the Flood Control District had been monitoring instream flows in improved sections of the Los Angeles and San Gabriel Rivers. Plaintiffs in the case had argued that the District illegally discharged pollutants by pumping stormwater from the improved portion of the river systems into unimproved portions of the same waterway. The Court held that such activity does not qualify as a “discharge of a pollutant” under the Clean Water Act. Shortly before oral argument, the District was issued a new MS4 permit that requires end-of-pipe pollutant monitoring at individual MS4 discharge points.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

White House Announces Expedited Schedule for Renewable Energy Projects

On August 7, the White House announced an expedited approval schedule for seven solar and wind projects on federal and tribal lands in Arizona, California, Nevada and Wyoming totaling 5,000 megawatts (MW) of energy-producing capacity, an amount sufficient to power roughly 1.5 million homes.

Three of the proposals would be first to come on line. The Quartzsite, McCoy and Desert Harvest solar energy facilities represent a combined 1,000 MW of capacity, and are on schedule for approval this year. Another project announced is the 3,000 MW Chokecherry and Sierra Madre wind energy project in Carbon County, Wyoming, which would be the largest in North America.

If approved on schedule, the seven projects would add to the 7,200 MW of renewable energy the Obama administration already has permitted on federal lands and would help exceed a goal set by the 2005 Energy Policy Act to permit 10,000 MW of renewable energy by 2015.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.