WASHINGTON — The Supreme Court will hear a case from Los Angeles on Tuesday to decide for the first time who can be held responsible for polluted storm water that runs off city streets and into rivers and bays.
The case arises from a long-running dispute between Southern California environmental groups and the Los Angeles County Flood Control District over the billions of gallons of polluted water that flow into the Los Angeles and San Gabriel rivers after heavy rainfalls.
Congress expanded the Clean Water Act in 1987 to include storm water runoff, and since 1990 the sprawling Los Angeles district has operated under a permit.
The Natural Resources Defense Council and the environmental group Los Angeles Waterkeeper sued the flood control district in 2008, contending it was violating its permit. The district’s monitoring stations in the two rivers regularly showed unacceptably high levels of pollutants flowing in the rivers and into the ocean, the suit said.
Included were “high levels of aluminum, copper, cyanide, fecal coliform bacteria and zinc,” the U.S. 9th Circuit Court of Appeals said last year. “An ocean monitoring station at Surfrider Beach showed there were 126 separate bacteria exceedances … including 29 days where the fecal coliform bacteria limit was exceeded.”
Storm water runoff “is the No. 1 source of pollution in the rivers and along the coastline,” and it sickens thousands of beach visitors every year, said Liz Crosson, executive director of Los Angeles Waterkeeper. Advocates hoped the lawsuit would force the county and all of its municipalities to adopt stricter measures to prevent pesticides, trash, used motor oil and other chemicals from flowing into storm drains.
County officials agree storm water is polluting the rivers but disagree on who is responsible. Its one monitoring station along the Los Angeles River is in Long Beach, near where it empties into the ocean.
“Yes, there are pollutants in the water, but dozens of municipalities are upstream from there. It’s a collective runoff. It doesn’t point to a particular source,” Gary Hildebrand, assistant deputy director of the L.A. County Flood Control District, said in an interview.
In court, the flood control district’s lawyers have argued that because the Clean Water Act regulates only “discharges” of pollutants, the county is not responsible for discharges that come from the thousands of drains in the county’s 84 cities.
The dispute, if nothing else, illustrates the difficulty of regulating storm water. The Clean Water Act of 1972 first targeted “point sources” of pollution, such as an industrial plant putting toxic chemicals into a creek, or a sewage plant that was leaking sewage into a river. Violators could be identified and forced to stop the pollution.
By contrast, a heavy storm sends water flowing from across a vast area, picking up pollutants along the way. There is no obvious point source.
The Supreme Court, however, has shown an interest in the issue this year. On Monday, the justices will hear two cases involving runoff from logging roads in the Pacific Northwest.
The next day, they will hear the case of L.A. County Flood Control District vs. NRDC to decide on municipal storm runoff.
Two years ago, a federal judge in Los Angeles rejected the environmentalists’ suit because they could not point to the source of the polluted runoff. Last year, however, the 9th Circuit held the county liable and reasoned that the storm water flowing by the monitoring station was discharging pollution into the ocean. The Supreme Court then voted to hear the county’s appeal.
Sean Hecht, an environmental law expert at UCLA, said the county’s stand raises questions about the permit scheme. “From the plaintiff’s perspective, it is very frustrating. If [the county is] not responsible, who is?” he asked.
Experts on both sides agree they have seen progress over the past two decades in limiting pollution from storm runoff, but more needs to be done. “This is a very complex problem,” Hildebrand said. “There is a lot more to do, and we need to do it municipality by municipality, across the watershed.”