U.S. Supreme Court Reverses Ninth Circuit Ruling on Municipal Storm Water Discharges

January 15, 2013, by Gregory J. Newmark, Sarah N. Quiter

Good news for owners and operators of municipal separate storm sewer systems, also known as "MS4s."  In Los Angeles County Flood Control District v. Natural Resources Defense Council, the U.S. Supreme Court held that storm water flowing from an improved, channelized portion of a navigable waterway into an unimproved, natural portion of the same waterway does not qualify as a "discharge of a pollutant" under the Clean Water Act.  The Ninth Circuit had ruled to the contrary, that the flow of pollutants from channelized portions of two rivers into what it termed "naturally occurring portions of those rivers" was the point where a "discharge of a pollutant" occurred.  In a five-page opinion authored by Justice Ginsburg, the Supreme Court unanimously reversed the Ninth Circuit's decision as wholly inconsistent with the rule announced in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), which held that the flow of polluted water between two parts of the same waterway does not constitute a "discharge of a pollutant" under the Clean Water Act.

To read more about this case, follow this link.

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