9th Circuit Nails LA on Polluted Storm Water

     (CN) – Years of monitoring data from Los Angeles County’s labyrinthine storm-drain system are enough to hold the county liable for polluting local rivers, the 9th Circuit ruled Thursday.
     Reconsidering the long-running case over storm water runoff in light of a recent U.S. Supreme Court reversal, the federal appeals court found that some 140 separate violations of the water quality standards set in the county’s Clean Water Act permit establish liability “as a matter of law.”
     The Natural Resources Defense Council and Santa Monica Baykeeper sued Los Angeles County and its Flood Control District in 2008 for violating the permit.
     Some 2,800 miles of storm drains and 500 miles of open channels make up the system that carries storm water runoff – polluted with trash, metals, used oil, raw sewage and other contaminants.
     The MS4, as it is known, runs from the streets and parking lots of urban Los Angeles County to local rivers and the ocean. It passes through numerous separate municipalities and receives runoff and discharges from thousands of unmonitored entities.
     Los Angeles County’s own annual monitoring reports from 2002 to 2008 showed “140 separate exceedances of the permit’s water quality standards, including excessive levels of aluminum, copper, cyanide, zinc, and fecal coliform bacteria in both the Los Angeles and San Gabriel Rivers,” according to the ruling.
     A federal judge nevertheless granted the county summary judgment on all claims after finding that the environmental groups had failed to show that any one entity had discharged the pollutants.
     In a partial reversal 2 ½ years ago, the 9th Circuit said that the defendants were liable for Clean Water Act violations in the Los Angeles and San Gabriel Rivers because the monitoring stations for the rivers were clearly located in a portion of the MS4 controlled by the flood control district.
     The court agreed , however, that the plaintiffs needed more proof to show the county’s “individual contributions to the measured permit violations.”
     On further appeal, the U.S. Supreme Court reviewed whether moving polluted water from one portion of a river to another through a concrete channel was defined as a “discharge of pollutants” under the Clean Water Act. The high court found that it was not and reversed last year.
     On remand to the 9th Circuit, the San Francisco-based appellate panel changed course Thursday as to the sufficiency of the plaintiffs’ data and rejected arguments from the defendants that court was not allowed to reconsider the issue.
     “In sum, and contrary to the county defendants’ contentions, the language of the permit is clear – the data collected at the Monitoring Stations is intended to determine whether the permittees are in compliance with the permit,” Judge Milan Smith wrote for a unanimous, three-judge panel. “If the district’s monitoring data shows that the level of pollutants in federally protected water bodies exceeds those allowed under the permit, then, as a matter of permit construction, the monitoring data conclusively demonstrate that the county defendants are not ‘in ‘compliance’ with the permit conditions. Thus, the county defendants are liable for permit violations.”
     The pollution-monitoring data “conclusively demonstrate that pollution levels in the Los Angeles and San Gabriel Rivers are in excess of those allowed under the permit,” Smith added.
     The 9th Circuit remanded the case back to the district court for, among other things, “a determination of the appropriate remedy for the county defendants’ violations.”
     Liz Crosson, executive director of Los Angeles Waterkeeper, called the decision “a turning point for all of Los Angeles.”
     “Stormwater runoff is the No. 1 source of pollution in Los Angeles’ rivers and beaches and LA County is the largest discharger of stormwater,” Crosson said in a statement. “Holding LA County responsible for its pollution and working with them to find regionwide solutions is the biggest victory we could imagine.”     
     Gail Farber, chief engineer of the Flood Control District and director of the county Public Works Department, said the decision adopts an argument about storm-water monitoring that the court expressly rejected in two previous decisions the same judges reached in the same case.
     “We view this as another legal skirmish in a case we thought had been resolved by the U.S. Supreme Court,” Farber said in a statement. “It is unfortunate that this case continues to divert public resources away from the work of improving water quality in the LA region.”
     “We will continue to work collaboratively with cities, regulatory agencies, and the environmental community to enhance water quality and protect our waterways,” she added.
     The district is reportedly considering its next step.

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