Billions at stake in pending stormwater case
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The U.S. Supreme Court has agreed to hear a case that could lead to revamped stormwater regulations.
The U.S. Supreme Court agreed in August to decide whether stormwater flowing through a city or water district’s flood control channels should be defined as “discharge” and whether the entity that owns a floodwater conveyance system is responsible should a Clean Water Act (CWA) violation occur. The pending case could lead to billions of dollars in compliance costs for certain cities and water districts, put cities and water districts on the hook for costly stormwater pollution controls and perhaps cause a jump in demand for stormwater treatment solutions.
Environmental groups filed suit against Los Angeles County and the Los Angeles County Flood Control District in 2011, claiming that the polluted stormwater moving through the district’s flood control channels and infrastructure qualifies as “discharge” under the CWA. If the high court rules against the district (the county itself is no longer part of the case), the district will be held singularly responsible for excess contaminants in stormwater that flows through its channels instead of sharing that responsibility with upstream cities – many of which are sources of polluted stormwater runoff. The district contends that upstream entities’ pollutants are just passing through.
“It’s a very narrow question that the Supreme Court is looking at,” said Gary Hildebrand, deputy public works director for the LA County Flood Control District. “It’s really the whole issue of rivers within the flood control district [and] whether the flood control infrastructure that was constructed in that river system entails any responsibility being imposed on the agency for the quality of the water that’s merely flowing through.”
Considering the stormwater flows to be “discharge” would put the district in violation of EPA rules, suggesting massive projects to get back into compliance. One study estimated the total cost of compliance at roughly $50 billion. The cost would include a variety of projects, such as building many localized stormwater facilities, Hildebrand said. Exact steps would depend on the specifics of the ruling.
The case has attracted the attention of the National Association of Clean Water Agencies (NACWA), which will file a brief defending the district. NACWA general counsel Nathan Gardner- Andrews said the case could be potentially significant, noting that the court could impose “significant permitting obligations and related costs on utilities that use water transfers for stormwater and water management.” In its own brief, the Florida Stormwater Association stated that a ruling against the district “would impose an impossible burden” on municipal separate stormwater systems in the U.S.
Oral arguments have not been scheduled for the case, but Gardner-Andrews said he is confident that the court will agree with the district. The court heard a similar case in 2004 when the Miccosukee Tribe of Indians sued the South Florida Water Management District (SFWMD). The court ruled unanimously in SFWMD’s favor, saying that conveying water through a manmade channel does not constitute discharge under the CWA.