Ninth Circuit Issues New Ruling in LA County Flood Control Case Contradictory To Its Own Earlier Rulings, Resulting in Compliance Uncertainty

August 2013

In a case originally brought in 2008 by the Santa Monica Baykeeper (now Los Angeles Water Keeper) and the Natural Resources Defense Council (collectively, “NRDC”) against the County of Los Angeles and Los Angeles County Flood Control District (collectively, the “District”), the Ninth Circuit is seemingly having a difficult time making up its mind as to how to assess compliance with receiving water limitations for municipal stormwater discharges in Los Angeles County.

In its March 10, 2011 ruling, the Ninth Circuit determined that NRDC had “failed to meet their evidentiary burden” with respect to whether stormwater discharges by the District into the Santa Clara River and Malibu Creek exceeded permit requirements.  In that ruling, the Ninth Circuit concluded that by simply referencing data from in-stream mass emissions monitoring stations, NRDC did not provide evidence sufficient for the District Court to determine if the discharged stormwater caused or contributed to water quality exceedances in these two watercourses.   Summary judgment in favor of the District was affirmed.  Thus, for the Santa Clara River and Malibu Creek watersheds, in-stream mass emission data demonstrating levels above the applicable water quality standards was not enough to invoke liability for discharges into those water bodies.

In what seems to be a contradictory ruling within the same case, the Ninth Circuit issued a ruling today (August 8, 2013) pertaining to the District’s compliance in the San Gabriel and Los Angeles River watersheds, finding that “the language of the Permit is clear—the data collected at the [mass emission] Monitoring Stations is intended to determine whether the Permittees are in compliance with the Permit. If the District’s monitoring data [at the mass emission stations in the river] shows that the level of pollutants in federally protected water bodies exceeds those allowed under the Permit, then, as a matter of permit construction, the monitoring data conclusively demonstrate that the County Defendants are not ‘in compliance’ with the Permit conditions. Thus, the County Defendants are liable for Permit violations.” (See NRDC, et al v. County of Los Angeles, et al., Case No. 10-56017 (9th Cir. 2013).)

This new decision creates compliance uncertainty, as permittees will be unsure which “rule” applies, the Malibu/Santa Clara rationale expressed by the Ninth Circuit in 2011 or the San Gabriel/Los Angeles rationale expressed in 2013.  While the monitoring locations and requirements of the Los Angeles County Municipal Separate Storm Sewer System (“MS4”) NPDES Permit are somewhat unique, and the ruling should be limited to the specific language of that permit, the ruling might prove problematic for other municipal storm water dischargers in terms of an incorrect presumption that liability can somehow “automatically” attach to MS4 discharges simply because of noted receiving water exceedances that may or may not be caused by MS4-related discharges.  This disconnect will hopefully be remedied through an en banc decision by a panel of the Ninth Circuit, or after another visit to the U.S. Supreme Court.

To access a copy of the Ninth Circuit’s recent opinion, click here.

Melissa Thorme is a Partner in the Environmental Law, and Food & Agriculture Practices. Melissa’s practice focuses in the areas of water quality, wastewater, agricultural runoff, permitting, enforcement defense and agricultural law.  Nicole Granquist is a Partner in the firm’s Environmental Law Practice, where she specializes in water quality regulatory compliance and litigation. © 2013 Downey Brand, LLP.

The information in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.