Appeals Court Shakes off High Court and Tells L.A. County to Clean up Storm Water

Friday, August 09, 2013

After taking more twists and turns than the effluent flowing to the sea through a Los Angeles County labyrinth of storm water conduits, blame for the pollution appears to be washing up on the shores of the local flood control district.

The U.S. Ninth Circuit Court of Appeals shook off a narrow decision in January by the U.S. Supreme Court and ruled (pdf) Thursday that the county is, indeed, responsible for the crap that runs through the Los Angeles River on its way to the Santa Monica Bay.

The case originated in a lawsuit filed in 2008 by the National Resources Defense Council (NRDC) and Santa Monica Baykeeper (since renamed Los Angeles Waterkeeper) over excessive pollution levels in the three rivers and Malibu Creek. Plaintiffs alleged that the county’s flood control district had violated its storm water permit.

The flood control district maintains it is not the responsible party because it doesn’t generate the pollution. Local governments essentially argued that so many communities along the Los Angeles, Santa Clara and San Gabriel rivers were dumping so much stuff in them that it was virtually impossible to assign blame to anyone for the pollution.

The U.S. District Court found in favor of the county, but was reversed by the Ninth Circuit Court of Appeals in July 2011. The U.S. Supreme Court took up the appeal but said it only wanted to address whether the polluted water running through a concrete flood control channel, which much of the L.A. River is, should be considered a toxic discharge under the Clean Water Act.

The justices unanimously decided it was a “transfer,” not a “discharge,” but did not absolve the county of ultimate responsibility. The court urged that more monitoring be done of the toxic metals, pesticides, trash, bacteria and animal feces that regularly flow to the sea and are especially virulent when storm waters are high.  

Los Angeles County’s own records showed 140 separate incidents of substandard water quality in the 2,800 miles of storm drains and 500 miles of open channels between 2002 and 2008, according to the court ruling. The appeals court ruled that and other monitoring data was sufficient to hold the flood control district responsible for permit violations.

The case now heads back the U.S. District Court for a determination of how to fix the problem. The county may appeal the decision.

–Ken Broder


To Learn More:

9th Circuit Nails LA on Polluted Storm Water (by Tim Hull, Courthouse News Service)

Appeals Court Deals Setback to L.A. County in Storm-Water Case (by Abby Sewell, Los Angeles Times)

U.S. Supreme Court Lets L.A. County off the Hook for L.A. River Pollution (by Ken Broder, AllGov California)

L.A. County Flood Control District v. Natural Resources Defense Council et al. (U.S. Ninth Circuit Court of Appeals) (pdf)

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