In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within the meaning of the Clean Water Act. The decision appears to be controlled by the Court’s prior decision in Florida Water Management District v. Miccosukee Tribe, in which the Court had similarly ruled that pumping of polluted water from one part of a water body to another part of the same water body was not a discharge of pollutants. If active pumping from one part of a water body cannot be a discharge, then how can natural flow, even if from a culverted part of the water body to a non-culverted part, constitute a discharge? As the Court noted:
It follows, a fortiori, from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another.
What really makes the case curious is that the Court granted review very clearly limited to this narrow question – and both parties and the United States as amicus curiae agreed that the answer to the narrow question posed for review was that no discharge was involved. If this is all it takes, I think I can handle this Supreme Court justice thing. I feel as though I probably could have gotten this one right.