How does ladling soup compare to contaminated stormwater?

21 Jan 2013

Do you remember in 2010, when the EPA decided that even the paved part of the Los Angeles River was part of a “traditional navigable waterway”  allowing it to be governed under  the federal Clean Water Act?  Well, here’s an interesting common sense followup to that story.

The Los Angeles Flood Control District runs a drainage system that collects, transports and discharges storm water which is often polluted.  Under the Clean Water Act (CWA), the District was required to have a discharge permit and to monitor the water quality at various monitoring stations.   During 2002 -2008, the District detected pollution in the water and the Natural Resources Defense Counsel (NRDC) sued, alleging that the District must, therefore have been violating its permit.  The trial court found for the district, holding that it appeared that the contamination was in the stormwater before it reached the District’s monitors.  On Appeal, the Ninth Circuit Court of Appeals reversed, holding that the fact that the monitoring stations were in concrete channels and the polluted water flowed from the concrete channels into a more traditional natural waterway was a “discharge” of pollutants.

The District appealed and asked the US Supreme Court to look at both what the Ninth Circuit ruled and the issue of whether navigable waters covered by the CWA include engineered channels as well.  The Court ducked the second question but did look at the Ninth Circuit’s ruling on whether there had been a regulated discharge.

The Supreme Court ruled last week, holding 9-0 that, under the CWA, that a discharge of a pollutant requires the addition of pollutants and that if one takes a ladle of soup from a pot and pours it back in, one has not added anything – no pollutants were added and so no discharge had taken place.  The Court also noted the rejection of the NRDC’s argument by the Court below that detections were not violations because the law doesn’t prohibit exceedances – it prohibits “discharges.”

So, while the EPA may think that the channel is a navigable waterway and the Court didn’t reach that issue – it certainly seems like the Court is taking a dim view of these sorts of environmental claims.  The decision is certainly good news for hydroelectric facilities that do not add anything to the waters that they utilize.




Leave a Comment to “How does ladling soup compare to contaminated stormwater?”

  1. Joel Ungar 21. Jan, 2013 at 10:05 am #

    Excellent analogy.

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