No. 11-460 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

LOS ANGELES COUNTY FLOOD CONTROL DISTRICT,

Petitioner, v.

NATURAL RESOURCES DEFENSE COUNCIL, INC. and SANTA MONICA BAYKEEPER,

Respondents.

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On Writ Of Certiorari To The United States Court Of Appeals

For The Ninth Circuit

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BRIEF OF THE NATIONAL ASSOCIATION OF FLOOD AND STORMWATER

MANAGEMENT AGENCIES AND THE SANTA CLARA VALLEY WATER DISTRICT AS AMICI

CURIAE IN SUPPORT OF PETITIONER

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DAVID W. BURCHMORE* JOHN D. LAZZARETTI SQUIRE SANDERS (US) LLP 4900 Key Tower 127 Public Square Cleveland, OH 44114-1304 (216) 479-8500 david.burchmore@ squiresanders.com

*Counsel of Record

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

When 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 constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a “discharge” from an “outfall” under the Clean Water Act, notwithstanding this Court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that trans-fer of water within a single body of water cannot constitute a “discharge” for purposes of the Act?

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................... i

INTEREST OF THE AMICI .................................. 1

SUMMARY OF THE ARGUMENT ....................... 3

ARGUMENT ........................................................... 4

I. THE NINTH CIRCUIT’S DECISION IS INCONSISTENT WITH RELEVANT DE-CISIONS OF THIS COURT, THE DECI-SIONS OF OTHER CIRCUITS, THE STRUCTURE OF THE CLEAN WATER ACT AND THE REGULATIONS GOVERN-ING THE MUNICIPAL STORMWATER PERMIT PROGRAM ................................... 4

A. A Channelized Urban Stream Is Not a “Point Source,” and the Location Where It Flows into an Unimproved Section of the River Downstream Is Not an “Outfall” ..................................... 10

B. Neither the Fact of Channelization nor the District’s Management of the Wa-tershed Rivers for Flood Control Pur-poses Can Alter Their Status as “Navigable Waters” Under State and Federal Law ........................................... 19

II. IF NOT REVERSED, THE NINTH CIR-CUIT’S RULING WOULD CAUSE SERI-OUS DISRUPTION TO THE ENTIRE MUNICIPAL STORMWATER PROGRAM, AS WELL AS TO THE NPDES PERMIT PROGRAM IN GENERAL .......................... 23

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TABLE OF CONTENTS – Continued

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A. Channelization Is a Common Feature of Urban Streams Throughout the Country .................................................. 23

B. Other MS4 Permits Require Strict Compliance with Water Quality Stan-dards ...................................................... 25

C. Instream Monitoring Serves a Differ-ent Function than Monitoring of Indi-vidual Outfalls ....................................... 27

CONCLUSION ....................................................... 32

APPENDIX

Los Angeles County 2011-12 Stormwater Mon-itoring Report, Fig. 2-1 .................................... App. 1

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TABLE OF AUTHORITIES

Page

CASES

Catskill Mountains Chapter of Trout Unlim-ited, Inc. v. City of New York, 273 F.2d 481 (2d Cir. 2001) ..................................................... 7, 8, 9

Colberg, Inc. v. State of California ex rel. Dept. Pub. Works, 67 Cal. 2d 408 (1967) .......................... 21

Committee to Save Mokelumne River v. East Bay Municipal Utility District, 13 F.3d 305 (9th Cir. 1993) ........................................................... 8

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991) ................................................................... 8

Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999) ......................................................... 25

Dubois v. United States Department of Agricul-ture, 102 F.3d 1273 (1st Cir. 1996) ........................... 9

Economy Light & Power Co. v. United States, 256 U.S. 113 (1921) ................................................. 19

Horner v. City of Baxter Springs, 116 Kan. 288, 226 P. 779 (1924) ..................................................... 19

Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892) ....................................................................... 21

National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988) ..... 7, 8, 9, 10

National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) ............................. 7, 8, 9, 10

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TABLE OF AUTHORITIES – Continued

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Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880 (9th Cir. 2011) ................................................................ passim

Packer v. Bird, 137 U.S. 661 (1891) ........................... 21

People v. Gold Run Ditch & Min. Co., 66 Cal. 138 (1884) ................................................................ 21

Rapanos v. United States, 547 U.S. 715 (2006) ......... 13

S.D. Warren v. Board of Env. Protection, 868 A. 2d 210 (Me. 2005) ............................................... 20

S.D. Warren Co. v. Maine Bd. of Env. Protec-tion, 547 U.S. 370 (2006) ........................ 6, 10, 20, 22

South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004) ............................................................. 6, 10, 22

The Mentor Harbor Yachting Club v. Mentor Lagoons, 170 Ohio St. 193 (1959) ........................... 20

United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940) ................................................. 19

United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913)............................................ 20

United States v. Law, 979 F.2d 977 (4th Cir. 1992) .......................................................................... 9

Weber v. Board of Harbor Commissioners, 85 U.S. 57 (1873) .......................................................... 21

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TABLE OF AUTHORITIES – Continued

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STATUTES

33 U.S.C. § 1342 [CWA § 402] ................................ 6, 14

33 U.S.C. § 1342(p) [CWA § 402(p)] ............................. 2

33 U.S.C. § 1342(p)(3)(B)(iii) [CWA § 402(p)(3)(B)(iii)] ......................................... 25

33 U.S.C. § 1342(p)(4) [CWA § 402(p)(4)] ................... 13

33 U.S.C. § 1344 [CWA § 404] .................................... 14

33 U.S.C. § 1362(7) [CWA § 502(7)] ........................... 12

33 U.S.C. § 1362(12) [CWA § 502(12)] ................. 12, 24

33 U.S.C. § 1362(14) [CWA § 502(14)] ....................... 15

33 U.S.C. § 1362(16) [CWA § 502(16)] ....................... 24

Cal. Water Code § 13373 ............................................ 24

FEDERAL REGULATIONS

40 C.F.R. Part 122 ................................................ 16, 28

40 C.F.R. § 122.2 ............................................. 15, 16, 24

40 C.F.R. § 122.26 ....................................................... 16

40 C.F.R. § 122.26(b)(8) ........................................ 15, 17

40 C.F.R. § 122.26(d)(1)(iii)(B)(1) ............................... 18

40 C.F.R. § 122.26(d)(2)(ii) .......................................... 18

40 C.F.R. §§ 122.30-37 ................................................ 16

40 C.F.R. § 122.34(b)(3)(ii)(B) ............................... 16, 18

40 C.F.R. § 122.45(a) ................................................... 28

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TABLE OF AUTHORITIES – Continued

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53 Fed. Reg. 49416 (December 7, 1988) ......... 14, 17, 18

55 Fed. Reg. 47990 (November 16, 1990) ...... 14, 15, 16

OTHER AUTHORITIES

Blake Gumprecht, The Los Angeles River: Its Life, Death, and Possible Rebirth (1999) .................. 5

Andrew Karvonen, Politics of Urban Runoff: Nature, Technology and the Sustainable City (2011) ....................................................................... 23

Paul Stanton Kibel, ed., Rivertown: Rethinking Urban Rivers (2007) ................................................ 24

National Research Council, Urban Stormwater Management in the United States (2008) ............... 23

U.S. EPA, “NPDES Permit Writers’ Manual,” EPA-833-K-10-001 (September 2010) .................... 28

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The National Association of Flood and Storm-water Management Agencies (“NAFSMA”) and the Santa Clara Valley Water District (“SCVWD”) re-spectfully submit this brief as amici curiae in support of the petitioner, Los Angeles County Flood Control District (“LACFCD” or “the District”).1

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INTEREST OF THE AMICI

NAFSMA is a national non-profit association of municipalities, special purpose public districts and state agencies. Its members represent a broad na-tionwide spectrum of flood control, stormwater man-agement, water conservation, and other water-related districts, bureaus, departments, and other instru-ments of local, regional and state government. NAFSMA’s member agencies serve a combined popu-lation of millions of people nationwide and are re-sponsible for the protection of lives, property and the environment from the impacts of storm and flood waters. NAFSMA has an interest in this litigation because its members are directly involved in the

1 Pursuant to Rule 37.3 of this Court, counsel of record for all parties were provided with notice of NAFSMA’s and SCVWD’s intention to file this amici brief. All parties have consented to the filing of this brief and written consents are being lodged herewith. In accordance with Rule 37.6, the amici represent that counsel for the amici authored this brief in its entirety and that no person or entity other than the amici and its representatives made any monetary contribution to the preparation or submis-sion of this brief.

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administration of stormwater utilities and the im-plementation of stormwater management programs mandated by Section 402(p) of the Clean Water Act and by the state and federal regulations implement-ing that provision. Over the past decade, the nature and complexity of the measures required by munici-pal stormwater permits has increased dramatically, along with the threat of citizen suits seeking to im-pose liability for noncompliance with those require-ments. The Ninth Circuit’s decision in this case will seriously undermine the ability of NAFSMA’s mu-nicipal stormwater permit holding members to dem-onstrate compliance with their permits, and will significantly increase the risk of wasteful litigation over the terms and conditions of those permits.

The Santa Clara Valley Water District (“SCVWD”) is an independent special district created by Act of the California State Legislature, with jurisdiction en-compassing all of Santa Clara County’s 1,300 square miles. SCVWD is the primary water resources man-agement agency in Santa Clara County, which is lo-cated in the southern San Francisco, California Bay Area. Santa Clara County has over 1.8 million resi-dents and includes the vital high-tech economy known as “Silicon Valley.” SCVWD has authority for flood protection and water management, which in-cludes the management of raw water and flood water conveyance systems. Characterizing conveyances of raw waters or storm waters as point source discharges under the Clean Water Act would significantly impact the SCVWD’s ability to carry out its mission of flood

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protection and water management in Santa Clara County.

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SUMMARY OF THE ARGUMENT

The Ninth Circuit’s ruling that a “discharge” occurred when water flowed from the channelized sections of two navigable streams into the unim-proved sections of the same rivers below is in conflict with relevant decisions of this Court, is inconsistent with the decisions of every circuit court that has considered the issue, and is incompatible with the basic structure of the Clean Water Act and the regu-lations governing the municipal stormwater permit program. For purposes of the Act, the Los Angeles and San Gabriel rivers are “navigable waters,” and the channelized sections of those rivers cannot be re-defined as “point sources” that are part of the peti-tioner’s separate storm sewer system.

If not reversed, the Ninth Circuit’s decision would make it impossible for municipal stormwater systems discharging to urban streams anywhere in the country to comply with the Act. Moreover, the court’s finding that responsibility for a violation of the Act can be established solely on the basis of instream sampling results, without regard to the location of the defendant’s own outfalls, would throw the entire municipal stormwater permit program into confusion,

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and would have serious repercussions for the NPDES program in general.

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ARGUMENT

I. THE NINTH CIRCUIT’S DECISION IS IN-CONSISTENT WITH RELEVANT DECI-SIONS OF THIS COURT, THE DECISIONS OF OTHER CIRCUITS, THE STRUCTURE OF THE CLEAN WATER ACT AND THE REGULATIONS GOVERNING THE MUNIC-IPAL STORMWATER PERMIT PROGRAM

When rain falls on the southwestern slopes of the San Gabriel Mountains, the water flows downhill into the tributaries of the Los Angeles and San Gabriel Rivers, across Los Angeles County, and into the Pa-cific Ocean. Along its way, the Los Angeles River is augmented by runoff from the municipal separate storm sewer systems (“MS4s”) operated by the Los Angeles County Flood Control District (“LACFCD” or “the District”) and 31 separate municipalities. The San Gabriel River receives additional runoff from the District and from 29 other municipalities.2 Portions of those rivers have been channelized, to a greater or lesser extent, for flood control purposes. The Los

2 Fact Sheet/Staff Report for the County of Los Angeles Municipal Storm Water NPDES Permit (CAS004001) Order No. 01-182 (December 13, 2001), available at: http://www.swrcb.ca.gov/ rwqcb4/water_issues/programs/stormwater/municipal/los_angeles_ ms4/staffreportfactsheetfinal.pdf.

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Angeles River, in particular, has been famously de-scribed as “51 miles of concrete.”3

In this case, the Ninth Circuit ruled that chan-nelized portions of the two rivers are not only parts of the MS4 operated by the District, but also “point sources” that are distinct from the “navigable waters” downstream. Accordingly, the court held that the Dis-trict controlled all of the polluted stormwater in the rivers when it was measured, and therefore caused or contributed to the exceedance of applicable water quality standards when that water was “again” dis-charged to the unimproved segments of the rivers below. Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880, 898 (9th Cir. 2011). This ruling conflicts with relevant decisions of this Court, and it is inconsistent with the decisions of every other circuit that has considered the issue. Moreover, it is incompatible with the entire structure of the Clean Water Act (“CWA”) and the regulations promulgated to implement the municipal stormwater program.

No court that has addressed the issue has ever found that the natural, unimpeded flow of water down-hill within a single navigable water of the United States constitutes the “discharge of a pollutant” as

3 Blake Gumprecht, The Los Angeles River: Its Life, Death, and Possible Rebirth 173 (1999) (federal government created the “fifty-one-mile storm drain” that is still called the Los Angeles River).

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that term is defined in the CWA. Most importantly, in Part III-C of its opinion in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), this Court held that if a canal (“C-11”) and a nearby wetland area (“WCA-3”) were simply two parts of the same water body, then pump-ing water from one into the other cannot constitute the “addition” of pollutants required to constitute a “discharge” as defined in the Act. That ruling com-manded the agreement of eight of the Court’s nine Justices. The dissenting justice declined to join the ruling for reasons that do not apply here, namely that the issue was not part of the question presented; it had not previously been raised by the parties; and, in the absence of pumping, pollutants would have to flow uphill from C-11 to reach WCA-3. Id. at 113. Two years later, in Part III-B of its decision in S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370, 381 (2006) the Court was unanimous in its restatement of the basic principle established in Miccosukee, that if two identified volumes of water are simply part of the same water body, pumping water from one into the other cannot constitute an “addition” as required by the definition of the phrase “a discharge of pollutants” used in CWA § 402.

Prior to this Court’s ruling in Miccosukee, a number of circuits had considered the meaning of “discharge” under the CWA, in a broad range of cases involving water released through dams, pumped through hydroelectric facilities or snowmaking equip-ment, collected and channeled from mining waste or

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coal pile runoff, or forcibly transferred between different bodies of water. A review of those decisions reveals that, regardless of the divergent outcomes reached on the specific factual circumstances of each case, none of those courts would have found that a “discharge of pollutants” can occur within the same body of water.

In National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982), the D.C. Circuit found that water released from a reservoir through a dam to the stream below was not a discharge from a point source by accepting EPA’s view that for the addition of a pollutant to occur, the point source “must introduce the pollutant into navigable water from the outside world; dam-caused pollution, in contrast, merely passes through the dam from one body of navigable water (the reservoir) into another (the downstream river).” 693 F.2d at 174. As the Second Circuit noted later in Catskill Mountains Chapter of Trout Unlim-ited, Inc. v. City of New York, 273 F.2d 481, 491 (2d Cir. 2001), the reservoir and the stream below, “at least arguably, were sufficiently the same water that the release might not be considered an ‘addition’; nothing was introduced to the water that was not, in some sense, already there.” Similarly, in National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 581 (6th Cir. 1988), the Sixth Circuit found that the return of water that had been pumped uphill from a lake and passed through hydroelectric generators on its way back downhill to the lake was not a dis-charge, because the “movement of pollutants already

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in the water is not an ‘addition’ of pollutants to navi-gable waters of the United States.”

On the other hand, in Dague v. City of Burling-ton, 935 F.2d 1343 (2d Cir. 1991), the Second Circuit found that a railroad culvert between a pond and an adjacent wetland was a “point source,” although both the pond and the wetland were considered navigable waters for purposes of the CWA. The court held that leachate from a city landfill that entered directly into the pond constituted an unlawful discharge when it passed through the culvert and into the wetland. Explaining this decision in a later case, the same court emphasized that “(1) the pond and marsh were different navigable waters; (2) the culvert was the relevant point source; and (3) the release of pond water through the culvert was a ‘discharge.’ We thus necessarily implied that the transfer of water from the pond to the marsh was an ‘addition.’ ” Catskill, 273 F.3d at 492.

In Committee to Save Mokelumne River v. East Bay Municipal Utility District, 13 F.3d 305 (9th Cir. 1993), the Ninth Circuit found that surface runoff from an abandoned copper and zinc mine that was collected and channeled into a reservoir from which it passed into the Mokelumne River was a discharge because, unlike the facilities in Gorsuch and Con-sumers Power, the source of the pollution added to the river was surface runoff that had been collected or channeled from the abandoned mine site, while the unpolluted flow from the two naturally occurring drainages that formerly ran through the site had

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been diverted around the facility and directly into the river below. Similarly, in United States v. Law, 979 F.2d 977, 979 (4th Cir. 1992), the Fourth Circuit found that two collection ponds built to treat runoff and leachate from coal refuse “gob piles” were not “waters of the United States,” but instead were “point sources” under the Clean Water Act. Distinguishing the facts before it from those in Gorsuch and Con-sumers Power, the court recognized and endorsed the holding in those cases that where pollutants already exist in the waters of the United States before contact with a facility, the mere diversion in the flow of those waters does not constitute an “addition” of pollutants to the waters.

In Dubois v. United States Department of Agri-culture, 102 F.3d 1273, 1297-98 (1st Cir. 1996), the First Circuit found that water pumped from the East Branch of the Pemigewasset River and discharged into Loon Pond after passing through the defendant’s snowmaking system constituted an “addition,” but the reasons for the court’s decision were that the pond and the river “are not the same body of water,” and the transfer “would not occur naturally” because water from the river would have to “flow uphill” to reach the pond. Similarly, in the Catskill case cited above, 273 F.3d at 491-92, the Second Circuit held that the transfer of water through a tunnel from the Schoharie Reservoir into Esopus Creek was a dis-charge because the Creek was a separate body of water “utterly unrelated in any meaningful sense” to the reservoir and its watershed. The court agreed

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with the principle established in Gorsuch and Con-sumers Power that there would be no “addition” if the water from which the discharges came was the same as that to which they go. Indeed, the court noted, if a permit was required for such a discharge, “the EPA might as easily require a permit for Niagara Falls.”

Although the outcome in these cases varied on the basis of their factual scenarios, the one thing that is clear is that, consistently with this Court’s deci-sions in Miccosukee and S.D. Warren, none of these courts would have found that a “discharge” occurs when water merely flows downhill from one segment to another within a single navigable stream. Indeed, even in the present case the Ninth Circuit itself agreed that no discharge could be found to have oc-curred at the two monitoring stations located “within the rivers themselves” in the Santa Clara River and Malibu Creek. It was only by mischaracterizing the legal status of the channelized portions of the Los Angeles and San Gabriel Rivers that the court was able to reach a different conclusion there.

A. A Channelized Urban Stream Is Not a

“Point Source,” and the Location Where It Flows into an Unimproved Section of the River Downstream Is Not an “Out-fall.”

The respondents in this case alleged that the peti-tioner was liable for causing or contributing to exceed-ances of water quality standards in four “watershed

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rivers” located in Los Angeles County, in violation of the CWA and the terms of petitioner’s National Pollutant Discharge Elimination System (“NPDES”) permit. First Amended Complaint at ¶ 297 (Santa Clara River), ¶ 306 (Los Angeles River), ¶ 315 (San Gabriel River), and ¶ 325 (Malibu Creek). The Dis-trict Court granted summary judgment to the peti-tioner on all four of these “watershed claims” because it found that the respondents had failed to present evidence sufficient for it to determine whether the pollutants detected at monitoring sites (the “mass emission stations”) located within each of the four rivers had been discharged from the petitioner’s MS4 outfalls. April 26, 2010 Order at 4. Explaining its decision, the District Court stated:

That the pollutants must have passed through an outflow [sic] is key because, as the Court found in the March 2 Order, standards-exceeding pollutants must have passed through a County or District outflow in order to constitute a discharge under the Clean Water Act and the Permit. A co-permittee, including the county and the Dis-trict, is responsible “only for a discharge for which it is the operator.” Permit ¶ G.4 at 20 (emphasis added). See also 40 C.F.R. § 122.26(b)(1) (“Co-permittee means a per-mittee to a NPDES permit that is only re-sponsible for permit conditions relating to the discharge for which it is the operator.”)

April 26, 2010 Order at 3 (emphasis in original).

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On review, the Ninth Circuit agreed with the District Court that establishing liability for the ex-ceedences detected at the instream monitoring sta-tions “requires proof that some entity discharged a pollutant,” and that the CWA defines the “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 673 F.3d 880, 898, citing CWA § 502(12), 33 U.S.C. § 1362(12). It also found that all of the watershed rivers are “navigable waters” as defined in CWA § 502(7), 33 U.S.C. § 1362(7). Id. It agreed with the District Court that, on the record before the court, it was not pos-sible to establish responsibility for exceedances de-tected in the Santa Clara River and Malibu Creek, because the mass emission stations in those rivers “are located within the rivers themselves.” 673 F.3d at 901.

With regard to the exceedances detected in the Los Angeles and San Gabriel Rivers, however, the Ninth Circuit ruled, “as a matter of law and fact,” that the rivers below the mass emission stations are bodies of water that are “distinct” from the channels in which the stations are located, which it found to be parts of the MS4. The basis for the court’s conclusion is reflected in several statements in the opinion to the effect that the monitoring stations in those two rivers “are located in a channelized portion of the MS4 that is owned and operated by the District,” 673 F.3d at 889; “are located in a section of the MS4 owned and operated by the District,” 673 F.3d at 899; or “are in concrete portions of the MS4 controlled by the

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District.” 673 F.3d at 900. Consequently, the court concluded,

[t]he discharge from a point source occurred when the still-polluted stormwater flowed out of the concrete channels where the Moni-toring Stations are located, through an out-fall, and into the navigable waterways. We agree with Plaintiffs that the precise location of each outfall is ultimately irrelevant be-cause there is no dispute that MS4 eventually adds stormwater to the Los Angeles and San Gabriel Rivers downstream from the Moni-toring Stations.

Id.

The Ninth Circuit’s ruling erases a distinction that is fundamental to the operation of the CWA – that between “outfalls” on the one hand and “receiv-ing streams” on the other (or, to use the statutory terms, between “point sources” and “navigable wa-ters”). As Justice Scalia wrote for the plurality in Rapanos v. United States, 547 U.S. 715, 736 (2006), the definitions used in the CWA “conceive of ‘point sources’ and ‘navigable waters’ as separate and dis-tinct categories. The definition of ‘discharge’ would make little sense if the two categories were signifi-cantly overlapping.”

EPA took particular care to respect this dis-tinction when drafting regulations to implement the MS4 permit program established by the 1987 CWA amendments. CWA § 402(p)(4) directed EPA to estab-lish regulations setting forth permit application

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requirements for large MS4s (those serving a popula-tion of 250,000 or more) within 2 years, and for medium MS4s (those serving a population between 100,000 and 250,000) within 4 years. (Collectively, these two groups are referred to as “Phase I” MS4s, to distinguish them from smaller communities covered by the “Phase II” regulations issued in 1999.) EPA published its proposed rule for both large and me-dium MS4s in 53 Fed. Reg. 49416 (December 7, 1988), and issued its final regulations in 55 Fed. Reg. 47990 (November 16, 1990). Among the issues that EPA had to address in the new regulations were how to define a “municipal separate storm sewer,” and what con-stitutes an “outfall” from that system. In the pre-amble to the proposed rule, the agency emphasized the need

to clarify that streams, wetlands and other water bodies that are waters of the United States are not storm sewers for the purpose of this rule. This use of the term “storm sewer” differs from the way that the term has often been used in the context of flood control, where natural streams and other water bodies are sometimes considered storm sewers.

53 Fed. Reg. 49416, 49442 (December 7, 1988). Con-sequently, activities such as “stream channelization, and stream bed stabilization, which occur in waters of the United States” would not be subject to NPDES permits under § 402 of the Act, even though they might require dredge and fill permits under CWA § 404. Id. The term “municipal separate storm sewer”

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was therefore defined as “a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditch-es, man-made channels, or storm drains . . . that discharges to waters of the United States. . . .” 40 C.F.R. § 122.26(b)(8) (emphasis added). The high-lighted clause is an essential part of the definition, because it distinguishes man-made channels that discharge to the river from channels that are part of the river itself.

Responding to comments in its preamble to the final regulation, EPA explained that it was not neces-sary to clarify the existing definition of “point source” in 40 C.F.R. § 122.2. That section, which is based on the statutory language in CWA § 502(14), 33 U.S.C. § 1362(14), defined a “point source” as any convey-ance “from which pollutants are or may be dis-charged.”

One commentator stated that “point source” for this rulemaking should be de-fined, for purposes of achieving better water quality, as those areas where “discharges leave the municipal [separate storm sewer] system.” EPA notes in response that “point source” as currently defined will address such discharges, while keeping the definition of discharge and point source within the framework of the NPDES program, and with-out adding potentially confusing and ambigu-ous additional definitions to the regulation.

55 Fed. Reg. 47990, 47997 (November 16, 1990).

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The Agency did find it necessary, however, to add a new, specialized definition for another term that had long been used in the NPDES permit program, but not previously defined – the term “outfall.”4 As explained in the preamble to the final regulation, the “entire thrust” of the regulation was “to control pol-lutants that enter receiving water from storm water conveyances.” 55 Fed. Reg. at 47997. For purposes of the MS4 program, therefore,

Outfall means a point source as defined by 40 CFR 122.2 at the point where a municipal separate storm sewer discharges to waters of the United States and does not include open conveyances connecting two municipal separate storm sewers, or pipes, tunnels or other conveyances which connect seg-ments of the same stream or other waters

4 “Outfall” is a term of art in the NPDES permit program. It was used throughout EPA’s general NPDES permit regulations in 40 C.F.R. Part 122, although it is not defined in the CWA and was never given a formal regulatory definition before one was added to the Phase I regulations in 1990. The term “outfall” or “outfalls” appears 106 times in the current version of 40 C.F.R. Part 122, but the definition in 40 C.F.R. § 122.26 applies only to the 43 occurrences in that section referring to outfalls as the point at which a municipal separate storm sewer discharges to waters of the United States. Presumably, though not explicitly stated, the definition would also apply to the Phase II regula-tions in 40 C.F.R. §§ 122.30-37, which require each Phase II per-mittee to “[d]evelop, if not already completed, a storm sewer system map, showing the location of all outfalls and the names and location of all waters of the United States that receive discharges from those outfalls.” 40 C.F.R. § 122.34(b)(3)(ii)(B).

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of the United States and are used to con-vey waters of the United States.

40 C.F.R. § 122.26(b)(8) (emphasis added). Not sur-prisingly, the Ninth Circuit omits the second part of the definition, containing the language highlighted above, when quoting this section in support of its conclusion that a discharge occurred when water flowed “through an outfall” from the concrete chan-nels into the navigable waters below. 673 F.3d at 900. Having found the channelized portions of the rivers to be “point sources” distinct from the navigable waters downstream, the court went on to suggest that “the precise location of each outfall is ultimately irrele-vant.” Id. To the contrary, as EPA explained in the preamble to the proposed regulation, it is

important to identify the location of such outfalls to clarify where the storm sewer sys-tem ends and where waters of the United States begin. In many situations, waters of the United States that receive discharges from municipal storm sewers can be mistak-enly considered to be part of the storm sewer system.

53 Fed. Reg. at 49453. It was for that reason that the Agency chose to require each Phase I MS4 operator to provide the location of major outfalls in Part 1 of its permit application, and to supplement that

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information in Part 2 of the application “so that, at a minimum, all major outfalls are identified.” Id.5

The Ninth Circuit’s ruling that portions of the Los Angeles and San Gabriel Rivers are “point sources” distinct from the rivers themselves, and the location where they flow into the unimproved sections of the rivers below is an “outfall,” is contrary to the entire structure of the CWA and the regulations governing the MS4 permit program. For flood control purposes, the rivers may serve an essential function in providing drainage for the Los Angeles and San Gabriel watersheds, but as a matter of law, in terms of the federal regulatory program established under the CWA, they are “navigable waters” and not a part of the MS4 operated by the District.

5 Pursuant to the final rule, applicants are required to pro-vide “[t]he location of known municipal storm sewer system outfalls discharging to waters of the United States” in Part 1, and to identify in Part 2 “[t]he location of any major outfall that discharges to waters of the United States that was not reported” in Part 1. 40 C.F.R. §§ 122.26(d)(1)(iii)(B)(1) and (d)(2)(ii). As noted above, the Phase II regulations require each permittee to map “the location of all outfalls and the names and location of all waters of the United States that receive discharges from those outfalls.” 40 C.F.R. § 122.34(b)(3)(ii)(B).

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B. Neither the Fact of Channelization nor the District’s Management of the Water-shed Rivers for Flood Control Purposes Can Alter Their Status as “Navigable Waters” Under State and Federal Law.

As explained above, the Ninth Circuit’s only bases for treating the sections of the Los Angeles and San Gabriel Rivers where the mass emission stations are located differently from those in the Santa Clara River and Malibu Creek were that they were (1) “channelized” and (2) either “owned and operated” or “controlled” by the District. Neither of these facts can support the Ninth Circuit’s erroneous legal conclusion that these segments of the two rivers are “point sources” rather than “navigable waters.” It is well-established that a river continues to be con-sidered as a navigable stream regardless of improve-ments to its channel. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 408 (1940); Economy Light & Power Co. v. United States, 256 U.S. 113, 118 (1921). This principle is derived from the common law. “A stream does not lose the attributes of a water-course by the fact that a part of its channel may have been artificially created. The straightening of a crooked watercourse in order to facilitate the flow and avoid the flooding of bordering lands is not uncom-mon.” Horner v. City of Baxter Springs, 116 Kan. 288, 290, 226 P. 779, 780 (1924). “A natural watercourse does not lose its character as a public watercourse because a part of its channel has been artificially created. Nor is the channel of a naturally navigable

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watercourse made private because of reasonable im-provements put upon it.” The Mentor Harbor Yachting Club v. Mentor Lagoons, 170 Ohio St. 193, 199 (1959).

Nor can the status as a navigable river be changed by the exercise of private ownership or con-trol. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 69 (1913) (“[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable”). Indeed, in S.D. Warren Co. v. Maine Bd. of Env. Protection, 547 U.S. 370 (2006), this Court explicitly rejected a line of reason-ing followed by the Supreme Judicial Court of Maine that was similar to the Ninth’s Circuit’s rationale in this case. S.D. Warren Co. operated several hydro-power dams, from which water was funneled into a “power canal,” through turbines, and back to the riverbed, passing around a section of the river below the impoundment. The state court ruled that “[b]e-cause these waters have lost their status as waters of the United States, when they are redeposited into the natural course of the river it results in an addition to the waters of the United States.” S.D. Warren v. Board of Env. Protection, 868 A. 2d 210, 216 (Me. 2005) (emphasis in original). This Court disagreed, stating that one cannot “denationalize national waters by exerting private control over them.” 547 U.S. 370, 379 n. 5.

The fact that portions of the rivers involved in this case are owned and operated by the District for flood control purposes is thus irrelevant to their status as “navigable waters” for purposes of the CWA.

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It is undisputed that all segments of the Los Angeles and San Gabriel Rivers, including those in which the mass emission monitoring stations are located, are classified as “receiving waters” under the Petitioner’s permit and the State of California’s water quality standards. The Ninth Circuit itself recognized that all four of the watershed rivers are “navigable waters” within the meaning of the CWA. 673 F.3d at 898. The District does not “own” those rivers in the ordinary sense of the word. As a matter of both state and federal common law, pursuant to the “public trust” doctrine, the State of California holds all of its navi-gable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. Colberg, Inc. v. State of California ex rel. Dept. Pub. Works, 67 Cal. 2d 408, 416 (1967) (quoting People v. Gold Run Ditch & Min. Co., 66 Cal. 138, 151 (1884)). For federal law purposes, in accordance with the “equal footing” doctrine, absolute property in, and dominion and sovereignty over all of its navigable waters passed to the state upon its admission into the union. Weber v. Board of Harbor Commissioners, 85 U.S. 57, 65-66 (1873). The authority to manage and control the public use of those rivers can be delegated by the state to the District, but that responsibility does not carry with it ownership of the water flowing through those streams or of the pollutants added to those streams by other dischargers. See generally Packer v. Bird, 137 U.S. 661 (1891); Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892).

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The locations of the mass emission monitoring stations within the four watershed rivers have been described and illustrated in each of the District’s annual Stormwater Monitoring Reports from 2002 through the present.6 The map of those locations in Fig. 2-1 from the most recent version of the report is reproduced in the Appendix to this brief. There is no valid basis in fact or law to distinguish the mass emission monitoring stations located in the Los Angeles River (S10) and the San Gabriel River (S14) from those in the Santa Clara River (S29) and Malibu Creek (S02). Because the portions of the rivers in which those stations are located are not distinct bodies of water from the downstream segments into which they flow, the Ninth Circuit’s ruling in this case is in direct conflict with this Court’s decisions in Miccosukee and S.D. Warren and should be reversed.

6 See http://dpw.lacounty.gov/wmd/NPDES/report_directory.cfm. Photographs of each of the mass emission sites are also provided in “Appendix C” to each of the annual reports.

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II. IF NOT REVERSED, THE NINTH CIR-CUIT’S RULING WOULD CAUSE SERIOUS DISRUPTION TO THE ENTIRE MUNICI-PAL STORMWATER PROGRAM, AS WELL AS TO THE NPDES PERMIT PROGRAM IN GENERAL

A. Channelization Is a Common Feature of Urban Streams Throughout the Country.

Although it may be the most spectacular exam-ple, the Los Angeles River is hardly alone among urban streams that have been wholly or partially channelized for flood control purposes. “Changes to channel morphology are among the most common and visible effects of urban development on natural stream systems.”7 Urban streams are commonly modified to improve drainage, with straightening and lining to reduce friction, increase flow capacity, and stabilize channel position. Id. at 151. Following the adoption of the Flood Control Act of 1936, the U.S. Army Corps of Engineers took a leading role in the process lining urban rivers with concrete and confining them be-tween levees to speed water past developed areas.8

7 National Research Council, Urban Stormwater Manage-ment in the United States 148 (2008). 8 See generally Andrew Karvonen, Politics of Urban Runoff: Nature, Technology and the Sustainable City 2-10 (Cambridge, Mass., 2011).

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The legacy of this work remains in place on urban rivers across the country.9

The Ninth Circuit’s ruling that the County of Los Angeles and the LACFCD became responsible for all of the pollutants detected in the Los Angeles and San Gabriel Rivers when they flowed through a “channel-ized” portion of those waters would have a cata-strophic impact on other cities, counties and flood control districts whose stormwater systems discharge to similarly modified urban streams across the coun-try. Like the District, many of those local government entities exercise varying levels of “ownership” or “control” over the streams flowing through their jurisdictions. By statute, the meanings of terms such as “navigable waters,” “discharge” and “point sources” applicable to the permit in this case are the same as those established by federal law and used in other states. Cal. Water Code § 13373. The definitions of “discharge” and “discharge of a pollutant” in the District’s permit are identical with those set forth in 40 C.F.R. § 122.2, which are in turn based upon the statutory definitions in CWA §§ 502(12) and (16). If the District in this case is held to be liable for a “discharge” in violation of its permit and the CWA, the same liability could be assigned to any MS4 discharging to urban streams in other parts of the country.

9 Paul Stanton Kibel, ed., Rivertown: Rethinking Urban Rivers 144 (2007).

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B. Other MS4 Permits Require Strict Com-pliance with Water Quality Standards.

The Respondents have argued that the impact of the Ninth Circuit’s decision is limited to the indi-vidual permit at issue in this case, because it is dictated by the terms of the receiving water limita-tions and monitoring program that are unique to that permit. To the contrary, the Ninth Circuit’s ruling that an exceedance of water quality standards meas-ured at instream monitoring stations is sufficient to establish liability for violation of the CWA, without corresponding evidence that the relevant pollutants were discharged from specific outfalls owned or op-erated by the permittee, would have far-ranging and unacceptable consequences for MS4 operators and other NPDES permit holders throughout the country.

The CWA specifies that MS4 permits shall reduce the discharge of pollutants to the “maximum extent practicable,” and does not require MS4 discharges to achieve strict compliance with state water quality standards. Defenders of Wildlife v. Browner, 191 F.3d 1159, 1166 (9th Cir. 1999).10 Nevertheless, several

10 In Browner, the Ninth Circuit suggested, in dicta, that EPA has the discretion to require strict compliance with water quality standards where necessary to protect water quality. It did not say this discretion could be exercised without regard to the “maximum extent practicable” limitation established in CWA § 402(p)(3)(B)(iii). That issue has been litigated in a number of venues around the country, but is not presented here. The CWA gives individual states, such as California, the authority to impose requirements more stringent than federal law. The amici

(Continued on following page)

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states other than California, and some EPA regions, have chosen to issue MS4 permits that either “prohib-it” or “do not authorize” any discharge that would cause or contribute to an exceedance of water quality standards. In Ohio, the language used in the Phase I permits for the Cities of Akron, Toledo and Dayton “does not authorize” discharges that would “cause or contribute to in-stream exceedances of water quality standards.” Permit No. 3PI00002*CD (June 13, 2011), at 2, Part I-C.f (Akron); Permit No. 1PI00003*DD (September 12, 2011) at 2, Part I-C.5 (Dayton); Per-mit No. 2PI00003*CD (June 25, 2010), at 5, Part I-B.5 (Toledo).11 In Maryland, the Phase I permits for Montgomery County and for the City of Baltimore state that the County “shall not cause” a violation of the state’s narrative water quality standards. Permit 06-DP-3320 (February 16, 2010) at 17, Part VI-A (“Discharge Prohibitions and Receiving Water Limita-tions”) (Montgomery County); Permit 99-DP-3315 (January 3, 2005) (City of Baltimore) at 13, Part VI-A (Baltimore).12 In Massachusetts and New Hampshire (where the NPDES program has not been delegated to the states and is administered by U.S. EPA), the

urge the Court to reserve any discussion of this issue for an occasion when it is properly raised for briefing by the parties and resolution by the Court. 11 All three permits are available at: http://www.epa.state.oh. us/dsw/storm/ms4_index.aspx. 12 Both permits are available at: http://www.mde.state.md.us/ programs/Water/StormwaterManagementProgram/Pages/programs/ waterprograms/sedimentandstormwater/storm_gen_permit.aspx.

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Phase II “Small MS4 General Permit” issued by EPA Region 1 states that any discharges that would cause or contribute to instream exceedances of water qual-ity standards “are not authorized.” Small MS4 Gen-eral Permit (April 18, 2003) at 3, Part I-B.2.k.13

In jurisdictions such as these, therefore, any finding that discharges from the MS4 are causing or contributing to an exceedance of applicable standards would place the permittee in immediate non-compliance. Likewise, many of these and other juris-dictions require instream sampling, either alone or in combination with traditional end-of-pipe outfall monitoring, to assess the impact of municipal storm-water discharges on receiving streams. If not re-versed, the Ninth Circuit’s holding in this case that instream sampling results alone are sufficient to establish liability for exceedances on the part of MS4 operators would establish a precedent that could have unacceptable consequences in any of those jurisdic-tions.

C. Instream Monitoring Serves a Different

Function than Monitoring of Individual Outfalls.

Since the inception of the National Pollutant Dis-charge Elimination System (“NPDES”) nearly forty years ago, the program as administered by U.S. EPA

13 Available at: http://www.epa.gov/region1/npdes/permits/permit_ final_ms4.pdf.

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and delegated state agencies has focused on estab-lishing, and monitoring compliance with, both water quality-based and technology-based effluent limita-tions at each outfall through which a permittee dis-charges to the receiving waters. EPA’s implementing regulations in 40 C.F.R. Part 122 consistently use the term “outfall” as the point at which limits are to be imposed and compliance is to be measured. For ex-ample, 40 C.F.R. § 122.45(a) states that “[a]ll permit effluent limitations, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility. . . .” EPA’s “NPDES Permit Writers’ Manual” states that:

Effluent monitoring locations should provide a representative sample of the efflu-ent being discharged into the receiving wa-ter. . . . Most importantly, the point where a final effluent limitation applies and the point where monitoring is required must be the same. A logical effluent monitoring point is just before discharge to the receiving water.

EPA-833-K-10-001 (September 2010), at 8-5 to 8-6.14

“Instream” monitoring, on the other hand, is used to document the cumulative effect of multiple dis-chargers on the overall status of water quality in a receiving stream, and whether the stream itself is in attainment of applicable water quality standards. It

14 Available at: http://cfpub.epa.gov/npdes/writermanual.cfm? program_id=45.

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can also be used to evaluate long-term trends in water quality over time. Instream monitoring to as-sess the overall effectiveness of the “best manage-ment practices” (“BMPs”) being implemented by MS4 operators and long-term trends in receiving water quality is a common element in many MS4 permits around the United States. For example, the Phase I permit for the City of Portland, Oregon, includes in-stream monitoring as part of the monitoring program requirements for each co-permittee, to “[e]valuate status and long-term trends in receiving waters as-sociated with MS4 stormwater discharges” and to “[a]ssess the chemical, biological and physical im-pacts of MS4 stormwater discharges on receiving waters.” Permit 101314 (January 31, 2011), Schedule B, 1.a.iii-iv and Table B-1.15 Similarly, the state of Maryland requires chemical, biological and physical monitoring at selected outfalls “and associated in-stream stations” to document progress towards meet-ing watershed restoration goals in its Phase I MS4 permits for several entities, including Montgomery County and the City of Baltimore. Permit 06-DP-3320 (February 16, 2010) at 9-10, Part III-H.1 (Montgomery County); Permit 99-DP-3315 (January 3, 2005) (City of Baltimore), at 8-9, Part III-H.1. The Phase I MS4 permit for the City of Akron, Ohio requires both out-fall and instream sampling at specified locations for its wet weather monitoring program. The instream

15 Available at: http://www.deq.state.or.us/wq/stormwater/ municipalph1.htm.

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stations are sampled monthly, and the stormwater outfalls 3 times per year. Permit No. 3PI00002*CD (June 13, 2011), at 30-31 (Part V, Tables 3 and 4). The permit for the City of Dayton allows the city to use an “In-stream Biological Monitoring Option” in lieu of continuing its conventional wet weather monitoring program in order to identify impacts of MS4 dis-charges on water bodies, assess effectiveness of BMP practices, identify water quality improvements or deg-radation, and identify sources of pollutants. Permit No. 1PI00003*DD (September 12, 2011), at 30, Part IV-A.3.

In the present case, the purpose of the instream “mass emission” monitoring component of the permit’s overall monitoring program is threefold: (1) to esti-mate the mass emissions from the MS4 [defined as the entire system operated by all 86 co-permittees], (2) to assess trends in the mass emissions over time, and (3) to determine if the MS4 is contributing to exceedances of water quality standards by comparing results to the applicable standards “and with emis-sions from other dischargers.”16 Monitoring and Re-porting Program CI 6948 for Order No. 01-182, section II-A. The mere fact that an exceedance of

16 Tellingly, the Ninth Circuit omits the last phrase from its discussion of the mass emission monitoring program in the District’s permit. 673 F.3d at 888. But this phrase is critical, because without comparing the results with emissions from other dischargers, it is impossible to estimate the contribution of MS4 discharges to the level of pollutants measured instream.

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applicable standards has been detected at one of the mass emission stations, without more, does nothing to establish whether the pollutants in question are being discharged from the portion of the MS4 oper-ated by the District, from one of its municipal co-permittees, or from “other dischargers.” Indeed, as explained in the Fact Sheet to the permit, the Re-gional Board decided in 2001 to add a new tributary monitoring program to the permit to determine pollutant sources and prioritize management actions. Fact Sheet/Staff Report for Order No. 01-182 (De-cember 13, 2001) at 50. “Exceedances of various pol-lutants . . . have been occurring at the mass emission stations for many years, but there has not yet been an effort to monitor tributaries to determine where the pollutants are actually coming from.” Id. (empha-sis added).

If not reversed, the Ninth Circuit’s holding that exceedances of water quality standards measured within the river are sufficient to impose liability on MS4 permittees, without regard to the proximity of any actual outfalls from their systems, not only misconstrues the purpose of the mass emission com-ponent of the District’s monitoring program, but threatens to wreak havoc in the administration of the MS4 permit program nationwide. In fact, it would throw a monkey wrench into the long-established approach to NPDES permitting and enforcement in general, which relies upon setting limits and measur-ing compliance for all permittees at the point of discharge from their outfalls into the receiving

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waters. The District Court’s decision in this case properly emphasized the need to show that some amount of standards-exceeding pollutant is being discharged through at least one District outfall into the receiving stream to establish that the District was responsible for violation of the permit. See March 2, 2010 Order at 12-13; April 26, 2010 Order at 3. The Ninth Circuit would hold the District liable for dis-charges to the rivers from its co-permittees and from other permitted and non-permitted sources, regard-less of whether they were transmitted through a portion of the MS4 operated by the District (i.e., its own MS4 outfalls, as opposed to the rivers them-selves). Neither the permit in this case, nor the Clean Water Act and its state and federal implementing regulations can justify this result, and the Ninth Circuit’s decision should be reversed.

--------------------------------- ---------------------------------

CONCLUSION

The Ninth Circuit’s ruling in this case is incon-sistent with relevant decisions of this Court, the de-cisions of other circuits, the structure of the CWA and the regulations governing the MS4 permit program. If allowed to stand, it would have serious negative

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consequences for municipal stormwater permittees throughout the country, and it must be reversed.

Respectfully submitted,

DAVID W. BURCHMORE* JOHN D. LAZZARETTI SQUIRE SANDERS (US) LLP 4900 Key Tower 127 Public Square Cleveland, OH 44114-1304 (216) 479-8500

*Counsel of Record

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