• Supreme Court Grants Certiorari in Two Clean Water Act Cases Involving Stormwater Discharges
  • August 10, 2012 | Author: Thomas G. Echikson
  • Law Firm: LeClairRyan - Washington Office
  • On June 25, 2012, the Supreme Court agreed to review two Ninth Circuit decisions involving stormwater discharges.

    In the first, the court will review the Ninth's Circuit decision in Los Angeles County Flood Control v. NRDC, 673 F.2d 880 (2011), in which the court upheld a district court decision finding the county liable for stormwater discharges from concrete channels constructed for flood and stormwater control as part of a municipal separate storm sewer system. The court will review the issue of whether stormwater flows constitute discharges regulated under the Clean Water Act. The case should be of great interest to municipalities that operate similar systems and may help clarify whether "transfers" of water within one water body constitute discharges requiring permits.

    In the second, the court will review the decision in Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (2011), in which the Ninth Circuit held that stormwater runoff from forest roads must be permitted under the Clean Water Act, reversing the longstanding view of EPA exempting such discharges. This case should be of interest to forest managers and agricultural concerns, which could be adversely affected by the Ninth Circuit's decision.