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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–460
_________________
LOS ANGELES COUNTY FLOOD CONTROL DISTRICT
PETITIONER
v. NATURAL RESOURCES DEFENSE COUNCIL, INC.,
et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[January 8, 2013]
Justice Ginsburg delivered the opinion of the
Court.
The Court granted review in this case limited to
a single question: Under the Clean Water Act (CWA), 86 Stat. 816,
as amended, 33 U. S. C. §1251
et seq., does
the flow of water out of a concrete channel within a river rank as
a “discharge of a pollutant”? In this Court, the parties and the
United States as
amicus curiae agree that the answer to this
question is “no.” They base this accord on
South Fla. Water
Management Dist. v.
Miccosukee Tribe,
541 U.S.
95, 109–112 (2004), in which we accepted that pumping polluted
water from one part of a water body into another part of the same
body is not a discharge of pol- lutants under the CWA. Adhering to
the view we took in
Miccosukee, we hold that the parties
correctly answered the sole question presented in the negative. The
decision in this suit rendered by the Court of Appeals for the
Ninth Circuit is inconsistent with our determination. We therefore
reverse that court’s judgment.
Petitioner Los Angeles County Flood Control
District (District) operates a “municipal separate storm sewer
system” (MS4)—a drainage system that collects, transports, and
discharges storm water. See 40 CFR §122.26(b)(8) (2012). See also
§122.26(b)(13) (“
Storm water means storm water runoff, snow
melt runoff, and surface runoff and drainage.”). Because storm
water is often heavily polluted, see 64 Fed. Reg. 68724–68727
(1999), the CWA and its implementing regulations require the
operator of an MS4 serving a population of at least 100,000 to
obtain a National Pollutant Discharge Elimination System (NPDES)
permit before discharging storm water into navigable waters. See 33
U. S. C. §§1311(a), 1342(p)(2)(C), and (D); 40 CFR
§§122.26(a)(3), (b)(4), (b)(7). The District first obtained a NPDES
permit for its MS4 in 1990; thereafter, the permit was several
times renewed.
Natural Resources Defense Council, Inc. v.
County of Los Angeles, 673 F.3d 880, 886 (CA9 2011).
Respondents Natural Resources Defense Council,
Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen
suit against the District and several other defendants under §505
of the CWA, 33 U. S. C. §1365. They alleged, among other
things, that water-quality measurements from monitoring stations
located within the Los Angeles and San Gabriel Rivers demonstrated
that the District was violating the terms of its permit.
The District Court granted summary judgment to
the District on these claims. It was undisputed, the District Court
acknowledged, that “data from the Los Angeles River and San Gabriel
River [monitoring] stations indicate[d] that water quality
standards ha[d] repeatedly been exceeded for a number of
pollutants, including aluminum, copper, cyanide, fecal coliform
bacteria, and zinc.” App. to Pet. for Cert. 108. But numerous
entities other than the District, the court added, discharge into
the rivers upstream of the monitoring stations. See
id., at
115–116. See also 673 F. 3d, at 889 (observing that the
pollutants of “thousands of permitted dischargers” reach the
rivers). The record was insufficient, the District Court concluded,
to warrant a finding that the District’s MS4 had discharged storm
water containing the standards-exceeding pollutants detected at the
downstream monitoring stations.
The Ninth Circuit reversed in relevant part. The
monitoring stations for the Los Angeles and San Gabriel Rivers, the
Court of Appeals said, are located in “concrete channels”
constructed for flood-control purposes.
Id., at 900. See
also
id., at 889 (describing the monitoring stations’
location). Based on this impression, the Court of Appeals held that
a discharge of pollutants occurred under the CWA when the polluted
water detected at the monitoring stations “flowed out of the
concrete channels” and entered downstream portions of the waterways
lacking concrete linings.
Id., at 900. Because the District
exer- cises control over the concrete-lined portions of the rivers,
the Court of Appeals held, the District is liable for the
discharges that, in the appellate court’s view, occur when water
exits those concrete channels. See
id., at 899–901.
We granted certiorari on the following question:
Under the CWA, does a “discharge of pollutants” occur when polluted
water “flows from one portion of a river that is navigable water of
the United States, through a concrete channel or other engineered
improvement in the river,” and then “into a lower portion of the
same river”? Pet. for Cert. i. See 567 U. S. ___ (2012). As
noted above, see
supra, at 1, the parties, as well as the
United States as
amicus curiae, agree that the answer to
this question is “no.”
That agreement is hardly surprising, for we held
in
Miccosukee that the transfer of polluted water between
“two parts of the same water body” does not constitute a discharge
of pollutants under the CWA. 541 U. S., at 109–112. We derived
that determination from the CWA’s text, which defines the term
“discharge of a pollutant” to mean “any
addition of any
pollutant to navigable waters from any point source.” 33
U. S. C. §1362(12) (emphasis added). Under a common
understanding of the meaning of the word “add,” no pollutants are
“added” to a water body when water is merely transferred between
different portions of that water body. See Webster’s Third New
International Dictionary 24 (2002) (“add” means “to join, annex, or
unite (as one thing to another) so as to bring about an increase
(as in number, size, or importance) or so as to form one
aggregate”). “As the Second Circuit [aptly] put it . . .
, ‘[i]f one takes a ladle of soup from a pot, lifts it above the
pot, and pours it back into the pot, one has not “added” soup or
anything else to the pot.’ ”
Miccosukee, 541
U. S., at 109–110 (quoting
Catskill Mountains Chapter of
Trout Unlimited, Inc. v.
New York,
273 F.3d 481, 492 (CA2 2001)).
In
Miccosukee, polluted water was removed
from a ca- nal, transported through a pump station, and then de-
posited into a nearby reservoir. 541 U. S., at 100. We held
that this water transfer would count as a discharge of pollutants
under the CWA only if the canal and the reservoir were
“meaningfully distinct water bodies.”
Id., at 112. 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. We hold, therefore, that the
flow of water from an improved portion of a navigable waterway into
an unimproved portion of the very same waterway does not qualify as
a discharge of pollutants under the CWA. Because the decision below
cannot be squared with that holding, the Court of Appeals’ judgment
must be reversed.[
1]
The NRDC and Baykeeper urge that the Court of
Appeals reached the right result, albeit for the wrong reason. The
monitoring system proposed by the District and written into its
permit showed numerous instances in which water-quality standards
were exceeded. Under the permit’s terms, the NRDC and Baykeeper
maintain, the ex- ceedances detected at the instream monitoring
stations are by themselves sufficient to establish the District’s
liability under the CWA for its upstream discharges. See Brief for
Respondents 33–62.[
2] This
argument failed below. See 673 F. 3d, at 898, 901; App. to
Pet. for Cert. 100–102. It is not embraced within, or even touched
by, the narrow question on which we granted certiorari. We
therefore do not address, and indicate no opinion on, the issue the
NRDC and Baykeeper seek to substitute for the question we took up
for review.
* * *
For the reasons stated, the judgment of the
Court of Appeals for the Ninth Circuit is reversed, and the case is
remanded.
It is so ordered.
Justice Alito concurs in the judgment.
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