9th Circuit Court Holds Municipal Permittees Liable For Stormwater Releases

You can view the original source Here.  For those following the ongoing struggle to regulate numeric water quality standards for TMDLs through MS4 Permits, consider this ruling as additional precident setting.

March 10, 2011: The 9th Circuit Court of Appeals upheld a decision today finding the Los Angeles County’s Flood Control District responsible for the billions of gallons of untreated stormwater runoff it allows to pollute Southern California’s rivers and, ultimately, its most popular beaches. The decision stems from a 2008 lawsuit filed by NRDC and Santa Monica Baykeeper. In a March 10 ruling in Natural Resources Defense Council (NRDC), et al. v. County of Los Angeles, et al., the U.S. Court of Appeals for the 9th Circuit ruled that the county's flood control district is responsible for excess stormwater discharges into two rivers containing pollutants at levels above permit limits. The ruling comes as EPA is stepping up its efforts to regulate stormwater.

“This ruling holds LA County responsible for their massive water pollution problem,” said Aaron Colangelo, senior attorney with NRDC. “For years, the County claimed that it could never be held accountable for its toxic discharges, even if the water were so polluted that it literally caught on fire. All of that changes with this ruling. The result will be fewer illnesses, fewer beach closings, a healthier environment, and a healthier regional economy.”

This ruling affirms that the County must do more to improve water quality and protect public health and the environment. As a remedy for the violations identified by the court, NRDC and Santa Monica Baykeeper will seek a court order requiring the County to reduce runoff pollution to levels that protect public health and the environment.

In its decision, the federal court agreed with NRDC and the Baykeeper that Los Angeles County, through its Flood Control District, has been illegally discharging polluted water into the Los Angeles and San Gabriel Rivers since 2003. Although the County’s monitoring in two additional rivers – the Santa Clara River and Malibu Creek – also showed violations of pollution limits, the court found that evidence did not pinpoint the County, as opposed to other dischargers, as the source of illegal levels in those waters. However, the Court left it open for NRDC and Baykeeper to revisit those claims. Specifically, the dischargers are responsible for permit exceedances of aluminum, copper, cyanide, fecal coliform bacteria and zinc that are discharged into rivers at monitoring stations owned by the municipal separate storm sewer systems (MS4s).

The court strongly rejected industry defenses that Congress did not intend the Clean Water Act (CWA) to apply as strictly to stormwater permits as to traditional National Pollutant Discharge Elimination System (NPDES) permits. The 9th Circuit also confirms that stormwater channeled by man in any conveyance system is a point source under the CWA and subject to the water act permitting system."