Soup Pot and Ladle Rule Wins Again: More Specificity for Clean Water Act Definition of Point Source
By John R. Embick, Esq. -- March, 2013
Co-Chair, CCBA Environmental Law Section
A recent decision from SCOTUS has provided more clarification on the definition of a point source, as defined by the federal Clean Water Act, 33 U.S.C. 1251, et seq., (“CWA”). Under the CWA, a discharge from a point source (pipes, outfalls, ditches, channels, etc.) generally requires a National Pollution Discharge Elimination System (“NPDES”) permit before that discharge enters the navigable waters of the United States (yes, this even includes storm water discharges).
In L.A. County Flood Control District v. NRDC, INC., et al, No. 11-460, slip op. (U.S. 1/8/2013 (October Term 2012)), Justice Ginsburg delivered the Court’s opinion in which seven other Justices joined, and with which Justice Alito concurred (Justice Alito did not offer an opinion, so this was basically a 9 to zip decision).
The issue involved a suit against the L.A. Flood Control District (“LAFCD”) by a number of environmental groups, alleging that the LAFCD was in violation of its storm water permit obligations relating to the Los Angeles and San Gabriel Rivers, among other waterways. The LAFCD holds storm water discharge permits covering the discharge of storm water from the municipal separate storm water collection system (“MS4”) in L.A., into the rivers.
Extensive portions of the rivers are channelized through L.A. for flood control purposes, and these enormous concrete surfaces and structures have taken on cultural and iconic significance. (e.g., remember the movie “Grease” and the car race in the L.A. culvert?).
The environmental groups alleged that the results from “in-stream” (as opposed to “end-of-pipe”) monitoring points in the rivers demonstrated that the terms and conditions of the LAFCD NPDES storm water discharge permits were being violated. The District Court below found that the evidence of violations was insufficient to prove the case against LAFCD, because there were many, many other discharges to the rivers above the LAFCD’s in-stream monitoring points, in addition to the point source discharges covered by the LAFCD storm water permits.
The Ninth Circuit reversed, basically holding that where the river flow exited the concrete channel into a natural river channel, constituted a point source discharge. Since the concrete channels were operated (controlled) by the LAFCD, the district was responsible (liable) for the point source discharges.
SCOTUS granted certiorari on the following question: under the CWA, does a “discharge of pollutants” occur when polluted water “flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river,” and then “into a lower portion of the same river”?
Using the “soup pot and ladle” analogy, the High Court held that a point source discharge of pollutants did not occur at those locations. “As the Second Circuit [aptly] put it. . . , ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot.’” , citing South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109–110 (2004) (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F. 3d 481, 492 (CA2 2001)). Slip Op. at 4. The High Court reversed and remanded.
During the pendency of this case, a new storm water discharge permit was issued to LAFCD. The new permit requires monitoring at the end of the pipes from which L.A. storm water enters the rivers, as opposed to the old, in-stream monitoring locations.
This is but one facet of a comprehensive effort to address the problem of pollution of the nation’s streams and rivers from storm water run-off. The storm water regulatory program has become increasing more stringent, and a new, more stringent, draft federal storm water rule is expected to be proposed in 2013, with a planned promulgation date of December, 2014.