Supreme Court of the United States

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1 Case No In the Supreme Court of the United States LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, Petitioner v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATE COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF OF AMICUS CURIAE ALBUQUERQUE METROPOLITAN ARROYO FLOOD CONTROL AUTHORITY IN SUPPORT OF PETITIONER LUIS ROBLES (Counsel of Record) MARCUS J. RAEL, JR. ADAM H. GREENWOOD Robles, Rael & Anaya, P.C. 500 Marquette Ave., NW, Suite 700 Albuquerque, NM (505) Attorneys for Amicus Curiae

2 Table of Contents TABLE OF AUTHORITIES... iii INTEREST OF THE AMICUS CURIAE... 1 SUMMARY OF ARGUMENT... 5 ARGUMENT... 8 I. THE ADOPTION OF THE NINTH CIRCUIT S CLEAN WATER ACT THEORY WOULD RESULT IN GRAVE CONSEQUENCES FOR MS4S II. WHEREAS THE NINTH CIRCUIT S THEORY OF THE CLEAN WATER ACT NECESSARILY IMPLIES STRICT LIABILITY FOR MS4S AND STORMWATER CONTAMINANTS, THE TEXT OF THE CLEAN WATER ACT ACTUALLY ENACTS A MAXIMUM EXTENT PRACTICABLE STANDARD FOR MS4 EFFORTS TO COMBAT STORMWATER CONTAMINATION III. THE NINTH CIRCUIT S THEORY OF THE CLEAN WATER ACT UNNECESSARILY RUNS AFOUL OF COMMANDEERING AND COERCION CONCERNS IV. NATURALLY CONNECTED HYDROLOGIC FLOW IS NOT ADDITIVE UNDER THE CLEAN WATER ACT CONCLUSION ii

3 TABLE OF AUTHORITIES Cases Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) City of Abilene v. U.S. E.P.A., 325 F.3d 657, (5th Cir. 2003) Duncan v. Walker, 533 U.S. 167, 174 (2001) Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 847 (9th Cir. 2003) Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 415 (2005)... 18, 20 Harris v. United States, 536 U.S. 545, 555 (2002).. 32 Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir. 2001)... 3 Hines v. Stein, 298 U.S. 94, 98 (1936) Nat'l Fed'n of Indep. Bus. v. Sebelius, U.S., 132 S. Ct (2012)... 28, 29, 30 Natural Res. Def. Council, Inc. v. County of Los Angeles, 673 F.3d 880, (9th Cir. 2011). 5, 10 New York v. United States, 505 U.S. 144, (1992)... 26, 27, 28, 30, 31 Printz v. United States, 521 U.S. 898, 918 (1997).. 25, 26, 27, 28 Rapanos v. United States, 547 U.S. 715, (2006)... 2, 3 S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004)... 8, 32, 33, 35 iii

4 Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 77 (2001) 25 United States v. Turkette, 452 U.S. 576, 580 (1981) Statutes 33 U.S.C U.S.C , U.S.C , 8, 17, U.S.C. 1365(a)(1) and (d) N.M. Stat. Ann through Other Authorities Black s Law Dictionary (6th ed., 1990) Webster s Third New International (3rd ed., 1993) 32 Regulations 40 C.F.R C.F.R (d)(2)(i) National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47,990, 48,044 (Nov. 16, iv

5 1 INTEREST OF THE AMICUS CURIAE 1 The Albuquerque Metropolitan Arroyo Flood Control Authority (AMAFCA) was created in 1963 by the New Mexico Legislature with specific responsibility for flooding problems in the greater Albuquerque, New Mexico area. N.M. Stat. Ann through AMAFCA builds and maintains flood control structures which help alleviate flooding with the purpose of preventing injury or loss of human life and eliminating or minimizing property damage. 2 As a flood control authority, AMAFCA complies and ensures compliance with Federal Emergency Management Association (FEMA) directives, AMAFCA maintains two main channels, originally constructed by the United States Army Corps of Engineers, that carry flood waters to the Rio Grande. AMAFCA also operates other channels in addition to flood dams and other diversionary structures. AMAFCA s flood control system does not consolidate flow into one single point of egress. Its channels connect independently into the Rio Grande, up and down both sides of the river. AMAFCA s flood control system is interconnected with storm drainage facilities that are constructed and 1 The parties have consented to the filing of this amicus curiae brief, and their letters of consent are on file with the Clerk. (Rule 37.2). This brief was not written in whole or in part by the parties' counsel, and no one other than the amicus made a monetary contribution to its preparation. (Rule 37.6). 2 Technical information in this brief has been provided and verified by Jerry M. Lovato, P.E., AMAFCA Executive Engineer.

6 2 maintained by Bernalillo County, the Village of Los Ranchos, the University of New Mexico, the City of Albuquerque, the New Mexico Department of Transportation and the City of Rio Rancho. AMAFCA does not generate the waters that come into its system. AMAFCA conveys flows to the Rio Grande through the urban area from other systems that are built and maintained by others. Some of the flood control channels that AMAFCA constructed or maintains are in preexisting natural arroyos. In some of these channels, AMAFCA alternates concrete embankments in areas of high-velocity flow with mere monitoring and stabilization of the earthen slopes in segments of the arroyo that experience lower velocity flow. Because some AMAFCA arroyos existed originally as naturally occurring channels for storm flow, there is a possibility they may be considered waters of the United States for the purposes of the Clean Water Act. 3 See 33 U.S.C. 1362; compare Rapanos v. United States, 547 U.S. 715, (2006) (plurality) ( The separate classification of ditch[es], channel[s], and conduit[s] -which are terms ordinarily used to describe the watercourses through which intermittent waters typically flow-shows that these are, by and large, not waters of the United States. ) with Rapanos, 547 U.S. at (Kennedy, J.) ( The plurality's first requirementpermanent standing water or continuous flow makes little practical sense in a statute concerned with downstream water quality. The 3 AMAFCA does not concede that any of its channels or arroyos are waters of the United States. However, no legal ruling has definitively and specifically resolved the question.

7 3 merest trickle, if continuous, would count as a water subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not. Though the plurality seems to presume that such irregular flows are too insignificant to be of concern in a statute focused on waters, that may not always be true. Areas in the western parts of the Nation provide some examples. The Los Angeles River, for instance, ordinarily carries only a trickle of water and often looks more like a dry roadway than a river. Yet it periodically releases water volumes so powerful and destructive that it has been encased in concrete and steel over a length of some 50 miles. Though this particular waterway might satisfy the plurality's test, it is illustrative of what often-dry watercourses can become when rain waters flow [T]here is no indication in the dictionary that the flood or inundation definition is limited to poetry [T]he Corps can reasonably interpret the Act to cover the paths of such impermanent streams. (Citations omitted.)); see also Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir. 2001) (agreeing that irrigation canals were waters of the United States because they are tributaries to the natural streams with which they exchange water ). As with the Los Angeles River channel Justice Kennedy referred to in Rapanos, AMAFCA s system can experience extremely large surges of water during flash flood events. In the arid southwest, runoff events are characterized by short duration, high intensity storms coupled with a highly variable topography that produce velocities from 10 to 40 feet per second. The Albuquerque metropolitan area experiences dangerous flooding conditions

8 4 somewhere in the city about six times per year. Albuquerque floods can be particularly hazardous because the origin of the flood may not be obvious at the floodsite itself. Distant thunderstorms in the Sandia Mountains to the east of the city, as well as storms in just one part of the city, can result in an unexpected wall of water which roars through arroyos and channels. Incidents of property damage and personal injury occur every year, but would likely wreak catastrophic property damage and take human life without AMAFCA s flood control structures. AMAFCA, with three co-permittees, is designated a municipal separate storm sewer system ( MS4 ) under the Clean Water Act and possesses a National Pollutant Discharge Elimination System ( NPDES ) permit from the United States Environmental Protection Agency ( EPA ). AMAFCA has a strong interest in this litigation because of the uncanny parallels between it and the Los Angeles County Flood Control District ( LACFCD ). Like the LACFCD, AMAFCA has a scattered system that is closely intertwined with the systems of other entities; experiences severe flash flood events; and maintains facilities and channels within naturally occurring corridors that conceivably may be classified as waters of the United States. The Ninth Circuit s ruling that flood control structures within waters of the United States are discrete point sources under the Clean Water Act, Natural Res. Def. Council, Inc. v. County of Los Angeles, 673 F.3d 880, (9th Cir. 2011), has extreme disruptive potential if applied to AMAFCA.

9 5 Since AMAFCA s system depends on flood waters disgorging into the Rio Grande, AMAFCA has real interest in the proper interpretation of the Clean Water Act as applied to MS4s. Like most MS4 flood control authorities, AMAFCA does not and cannot practicably have complete physical control over which waters enter its system. The Ninth Circuit s conclusion that MS4 regulation is indistinguishable from other sources of discharge under the Clean Water Act and that MS4s have a species of strict liability for all discharge that travels through their system is therefore extremely worrisome to AMAFCA. SUMMARY OF ARGUMENT MS4s have a grave responsibility to work to prevent the discharge of contaminated stormwater or other run-off into waters of the United States. When MS4s fail to take practicable steps in system design or system management to limit such discharge, or fail to use local zoning ordinances or anti-dumping enforcement as much as reasonably possible to the same purpose, MS4s should rightly be held to account. When MS4s have taken all practicable steps, however, they should not be coerced to either shut down or to adopt measures so financially ruinous or so intrusive into the lives and arrangements of ordinary citizens that the measures could rightly be called impracticable. The Clean Water Act does not require such a result. AMAFCA contends that it is an erroneous premise that MS4s are invariably strictly responsible for contaminated waters that issue from their systems or segments of their systems. AMAFCA

10 6 contends that the Ninth Circuit s conclusion derived from this premise is also erroneous. To the contrary, MS4s are not invariably strictly responsible for contaminated waters that issue from segments of their systems when the system segments are contained within waters of the United States. In support of these contentions, AMAFCA advances the following arguments: 1. The adoption of the Ninth Circuit s Clean Water Act theory would result in grave consequences for MS4s. AMAFCA, like many other MS4s, is not able to physically control all ingress of contaminated waters into its system without failing in its primary function of preventing or limiting floods. AMAFCA, like many other MS4s, also has no financially or systemically practicable way of sequestering all contaminated flood waters for treatment: AMAFCA s system does not funnel all waters into a unitary collection point and AMAFCA s system relies on discharge of flood waters into waters of the United States to avoid overloading its system capacity. 2. Whereas the Ninth Circuit s theory of the Clean Water Act necessarily implies strict liability for MS4s and stormwater contaminants, the text of the Clean Water Act actually adopts a maximum extent practicable standard for MS4 efforts to combat stormwater contamination. Consideration of the purpose and context of the Clean Water Act, along with other tools of textual interpretation, underscore the conclusion that the plain language maximum extent practicable standard in 33 U.S.C. 1342(p)(3)(B)(iii). 3. The Ninth Circuit s theory of the Clean Water Act unnecessarily runs afoul of

11 7 commandeering and coercion concerns. Making MS4s strictly liable for contaminated waters that flow through their systems even after the MS4s have taken all practicable steps unduly trespasses on the sovereignty of the states of which the MS4s are subdivisions. The effect would be to coerce the MS4s to take pollution control steps that are impracticable because they are either financially extreme or because they involve extraordinarily intrusive or burdensome local enforcement measures or both. Federal coercion of state action is not consistent with the dual sovereignty inherent in our nation s federalism. These serious constitutional concerns can be avoided by adopting the more textuallytenable maximum extent practicable theory of the Clean Water Act s standard for MS4s. 4. Naturally connected hydrologic flow is not additive under the Clean Water Act. The Clean Water Act regulates the addition of pollutants. 33 U.S.C. 1362(12)(A). The word addition implies action that brings together items that would not have otherwise been brought together. Maintenance of a flood control segment within a channel does not add contaminated water to hydrological system of which the channel is a part when, in the absence of the segment, the contaminated waters would still be part of the hydrological system. Whether an activity or flood control installation is additive can only be established by reference to the conditions that would prevail in the absence of the activity or flood control installation the mode of reasoning adopted in S. Florida Water Mgmt. Dist. v. Tribe of Indians, 541 U.S. 95, 101 (2004).

12 8 ARGUMENT Three sets of questions arise in this case, either because of the erroneous conclusion reached by the Ninth Circuit, or because of the erroneous chain of reasoning the Ninth Circuit used to reach its conclusion. Are MS4s strictly liable for all contaminated waters that may flow through their systems or a portion of their systems, regardless of the MS4s lack of culpability for the generation of either the contamination or the water, without respect to the MS4s inability to wholly prevent its ingress or egress, and notwithstanding the MS4s taking all practicable steps to limit or prevent the flow? Does the construction, operation, or maintenance of a flood control system segment a pipe, ditch, channel, tunnel, conduit, or so forth through which water flows, but which does not alter the natural course of the water (i.e., the segment is not a cause of the water flowing to a water of the United States), therefore always entail that the egress of contaminated waters from the terminus of the flood control segment violates the Clean Water Act? Does the construction, operation, or maintenance of a flood control system segment a pipe, ditch, channel, tunnel, conduit, or so forth in a water of the United States therefore always entail that the egress of contaminated waters from the terminus of the flood control segment violates the Clean Water Act? The Ninth Circuit answered yes to the third question because it answered yes to the first and, by

13 9 implication, the second. The third question is a restatement of the question for which the Court has granted writ of certiorari. It is a subsidiary of the second question, which in turn is a subsidiary of the first. The Ninth Circuit held that the presence of polluted water in a MS4-maintained channel was per se proof of a Clean Water Act violation. The Ninth Circuit first rejected any difference between pollution or contaminants generated by an MS4 or pollution or contaminants already added to the water before entering the MS4. Natural Res. Def. Council, Inc. v. County of Los Angeles, 673 F.3d 880, 900 (9th Cir. 2011). Implicitly, the Ninth Circuit also deemed irrelevant any account of the natural direction of flow absent the flood control segments, since there was no discussion of this point in the opinion. Consequently the Ninth Circuit held that the only determinative factor was the presence of a LACFCD channel segment. Id. At its heart, the Ninth Circuit opinion consists of only two facts that pollution monitors had detected contaminated waters in a stretch of river channel that were maintained by LACFCD, and that downstream the maintained segment ended and one conclusion: instant partial summary judgment against LACFCD. Given the Ninth Circuit s premise that an MS4 is immutably liable for any contaminated water that flows from any section of its system, regardless of source, cause, responsibility, or the extent of MS4 efforts to deal with contaminants, the Ninth Circuit s result, as absurd as it might appear at first glance, mechanically followed.

14 10 Because these three questions are nested and interdependent, in this amicus curiae brief AMAFCA will address considerations that bear on all three. I. THE ADOPTION OF THE NINTH CIRCUIT S CLEAN WATER ACT THEORY WOULD RESULT IN GRAVE CONSEQUENCES FOR MS4S. Petitioner has informed the Court that numerous evils will result from the adoption of the Ninth Circuit s interpretation. AMAFCA can corroborate Petitioner s fears. Flood control authorities do not typically generate contaminated run-off in any significant quantity. AMAFCA, like other flood control authority MS4s, does not generally introduce foreign matter into the water that runs down through its systems. Instead, it is the passive recipients of flow generated by other sources in interaction with natural precipitation events. Flood control and storm drain facilities are designed and must be designed to accept run-off from an entire landscape. Rainfall is not and cannot be designated to fall only at convenient locations. Consequently, unlike conventional sewer systems, MS4s conveyance systems are physically unable to refuse to accept run-off from any particular source. Even if they could, they would then be out of compliance with FEMA guidelines. Flood control authorities do not have the choice to exclude contaminated run-off. MS4s recognize and accept the responsibility to limit contaminated run-off through enforcement, building and construction codes that minimize run-off, and through best

15 11 management practices. 4 However, run-off contamination is ultimately an emergent property of the complex and chaotic interactions between thousands of small-scale human decisions and inherently mutable weather systems. Complete control is not humanly possible. Neither teeming human daily activity nor Mother Nature can be adequately predicted, permitted, or planned so as to entirely prevent contaminated run-off or to always limit contaminated run-off to manageable quantities at convenient times in practicable places. AMAFCA, like other MS4s, can and does take steps to reduce contamination. For example, new construction in the urban area must adopt run-off minimizing features. While AMAFCA cannot retain water without infringing on downstream users water rights, AMAFCA does construct water quality features and structures that help reduce contamination to the extent possible. However, 100% effect is not humanly possible. AMAFCA is not able to physically wall off its systems from run-off without ceasing to provide the flood control services that are its core function. Other measures, like complete containment for treatment of all run-off that may be contaminated, are not practicable. AMAFCA is simply not capable of holding back waters from the Rio Grande. AMAFCA likely could not design a system to comprehensively hold back and treat flood waters even if AMAFCA were working on a blank slate, but AMAFCA is not working on blank slate. Its 4 However, MS4s that are purely flood control authorities often lack legal enforcement authority and must rely on municipal MS4s and other stakeholders.

16 12 reasonable expectations that it could continue to operate under its NPDES permit without assuming total liability for any contaminant that enters its system are backed by the last five decades of significant and irrevocable capital investment. AMAFCA provides flood control within an area of 353 square miles in Bernalillo County. AMAFCA owns and maintains 69 miles of channels, both improved and natural, nine miles of underground facilities, and seven miles of dikes and diversion structures. AMAFCA also owns and maintains 35 flood control dams throughout the greater Albuquerque area, and a number of storm water quality facilities. AMAFCA structures protect 671,000 people and $13.7 billion in assets. Hundreds of thousands of citizens residing in the Albuquerque area have committed their lives and their property to the assumption that AMAFCA would be legally capable of providing flood control services. Further, in the arid southwest, even if it were physically possible, retention of rainwaters for extended periods of time would likely violate state law and even international water compacts. In addition, AMAFCA has designed and constructed its system without regard to the hitherto unknown notion that constructing facilities, e.g., embankments at erosion-prone or flood-prone spots, in a naturally-occurring channel for possible waters of the United States, would create a series of new point sources and discharges under the Clean Water Act. Storm drains and flood control systems such as AMAFCA s often follow the path of pre-existing gullies, arroyos, streams, creeks, and other natural drainage systems. These natural drainage systems are often already sized and located to handle

17 13 naturally occurring flows. Further, dwellings, buildings, and human transportation systems are often already sited with respect to natural drainage systems. Converting natural drainage systems to municipal storm sewer system use, to the extent practicable, limits the disruption caused by the system and allows flood waters to dissipate along the path of least resistance. Consequently, if the Ninth Circuit s interpretation were adopted, AMAFCA could find itself responsible for dozens of new point sources without ever having added a drop of contaminant to water. Flood control authority MS4s like AMAFCA and LACFCD will be deeply harmed if the Ninth Circuit s leaden interpretation of the Clean Water Act makes them strictly liable for third-party contaminated run-off that enters their systems despite their best efforts, that cannot be wholly treated despite their best efforts, and that theoretically would have to be re-impounded and retreated at every point where flood control facilities alternated with natural channel conditions. These risks are not hypothetical. In this case, LACFCD faces fines and injunctions not because of any identified failing or culpability or omission with respect to water contamination, but merely because along certain river channels, its facilities exist. In addition, AMAFCA is currently engaged in a dialogue with the EPA regarding a known and specific source of contaminated waterflow into AMAFCA s system that AMAFCA is physically unable to block and over which it lacks legal jurisdiction under New Mexico law, but for which EPA has nonetheless suggested that EPA

18 14 enforcement activity may be directed against AMAFCA instead of against the offender. The risks to MS4s of a mechanical interpretation of the Clean Water Act are real. The plight of LACFCD cannot be dismissed as a curiosity with no ramifications outside the parties to this case. II. WHEREAS THE NINTH CIRCUIT S THEORY OF THE CLEAN WATER ACT NECESSARILY IMPLIES STRICT LIABILITY FOR MS4S AND STORMWATER CONTAMINANTS, THE TEXT OF THE CLEAN WATER ACT ACTUALLY ENACTS A MAXIMUM EXTENT PRACTICABLE STANDARD FOR MS4 EFFORTS TO COMBAT STORMWATER CONTAMINATION. As applied to flood control authority MS4s, is the Clean Water Act best read as a device to enlist local flood control authorities in a cooperative federalist approach to the problem of polluted runoff, and to make them directly responsible for polluted run-off to the extent that their decisions exacerbate or fail to reasonably mitigate the problem; or is it a device to force blanket responsibility on local authorities? Logic, the purposes of the Act, and the language of the Act and its implementing regulations, show that it is the former. The Clean Water Act is not primarily a device to discourage the construction of or maintenance of channel segments. The Clean Water Act does not impose per se liability on flood control authorities regardless of considerations such as the extent to which the MS4 is responsible for contaminated water or has failed to take practical steps to reduce it; regardless of considerations such as the extent to which the flood control authority is

19 15 following the natural flow of the watershed such that contaminated water is part of the same hydrologic system it would be in if the flood control authority did not exist; or based on arbitrary distinctions between sections of natural channel that have reached an unspecified quantum of MS4 maintenance and construction and sections that have not. The skeleton of the Clean Water Act is simple. Except where a permit has been obtained, the discharge of any pollutant by any person shall be unlawful. 33 U.S.C At its heart, the Clean Water Act is not concerned with channels and construction of channeling facilities at all. Pollution is the core concern. In turn, the phrases discharge of a pollutant and discharge of pollutants are defined to mean any addition of any pollutant to navigable waters from any point source. 33 U.S.C. 1362(12)(A). Only at that tertiary step do channel segments make an appearance, in the statutory definition of point source : [t]he term point source means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. 33 U.S.C EPA regulations echo these definitions. The EPA defines pollutant discharge as (a) Any addition of any pollutant or combination of pollutants to waters of

20 16 the United States from any point source This definition includes additions of pollutants into waters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. 40 C.F.R The evident statutory purpose of the Clean Water Act is to prevent water pollution. Indeed, the Clean Water Act expressly states its purpose: [t]he objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. 33 U.S.C Regulation of run-off channels is a means to that end. Interpreting the language of the text in light of its evident textual purpose is an appropriate principle of statutory construction. Hines v. Stein, 298 U.S. 94, 98 (1936) ( The [statutory] purpose... is for consideration when the true meaning of statute or rule is sought. ). Statutory language has meaning only in context, Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 415 (2005), and the evident textual purpose of a statute is a critical piece of that context. It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed

21 17 that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. Duncan v. Walker, 533 U.S. 167, 174 (2001) (citations and quotation marks omitted). As discussed below, the Ninth Circuit s per se interpretation of the Clean Water Act as applied to flood control authority MS4s departs from the Clean Water Act s purpose and, indeed, ignores it. MS4s were originally not part of the Clean Water Act s statutory framework and are separately addressed in the Clean Water Act. See 33 U.S.C. 1342(p). In that section, Congress made industrial stormwater run-off subject to all normal Clean Water Act permitting requirements under 33 U.S.C U.S.C. 1342(p)(3)(A) ( Permits for discharges associated with industrial activity shall meet all applicable provisions of this section and section 1311 of this title. ). 33 U.S.C refers to effluent limitations. In contrast, Congress enacted specific requirements for municipal stormwater discharge that did not refer to effluent limitations under section 1311: Permits for discharges from municipal storm sewers - (i) may be issued on a system- or jurisdictionwide basis; (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other

22 18 provisions as the Administrator or the State determines appropriate for the control of such pollutants. 33 U.S.C. 1342(p)(3)(B) (emphasis added). This language, and the meaningful contrast between it and the statutory language applicable to industrial stormwater discharge, should be given effect. See Graham, 545 U.S. at Apparently in recognition of the challenges unique to MS4s, Congress mandated that MS4s act to reduce pollutants to the maximum extent practicable but not more. This Congressional directive is inconsistent with the Ninth Circuit s interpretation that any discharge of contaminated water from a flood control channel segment violates the Clean Water Act. What is missing from the Ninth Circuit decision is precisely any attention to the steps LACFCD may have taken to reduce contaminated run-off flow and whether those steps were all that was practicable. By implication, the Clean Water Act acknowledges that some theoretically possible steps may be impracticable, but the Ninth Circuit never addresses what additional steps LACFCD could have taken to 5 If the meaningful difference in language for industrial stormwater sources and MS4s is given full effect, arguably there may be instances where industrial sources may have to meet effluent standards whether practicable or not. If so, the difference may reflect a Congressional judgment that if worst comes to worst a community can make do without a particular polluting industrial source, but that a community cannot make do without flood control. The difference may also lie in the fact that industrial stormwater sources will likely have generated the contamination in their run-off and that MS4s face control problems that will usually be vastly more complex.

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