Amicus Filing
LA Flood Control v. NRDC
Supreme Court Decision

NWHA participated in the amicus brief in the Supreme Court case of Natural Resources Defense Council, Inc. v. County of Los Angeles, 636 F.3d 1235 (9th Cir. 2011), cert. granted, 80 U.S.L.W. 3707 (U.S. June 25, 2012) (No. 11-460). The case examined the scope of a “discharge” of pollutants under section 402 of the Clean Water Act (CWA).

The hydropower industry supported the brief to ensure the Supreme Court did not disrupt longstanding precedent in other circuits that dams are not point sources, and dam owners, including FERC hydro licensees, are not required to obtain an NPDES permit for general dam operations.

Van Ness Feldman, who worked with the industry group and prepared the brief, advised today that the Court issued its opinion. See attached. In the unanimous decision, the Supreme Court has reversed the Ninth Circuit on the question of whether a release of water from an improved portion of a waterway to an unimproved portion constitutes a "discharge of a pollutant" under Clean Water Act Section 402.

This was great result in the Court for the hydropower industry. Highlights:

  • The flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of a pollutant” under the CWA. See South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109– 112 (holding that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the CWA). The Ninth Circuit’s decision cannot be squared with this holding.
  • The NRDC and Baykeeper alternatively argue that, based on the terms of the District’s NPDES permit, the exceedances detected at the monitoring stations sufficed to establish the District’s liability under the CWA for its upstream discharges. This argument, which failed below, is not embraced within the narrow question on which certiorari was granted. The Court therefore does not address it. Pp. 3–5. 673 F. 3d 880, reversed and remanded.

Review the decision [ PDF ]


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