Supreme Court considers who's to blame for LA stormwater pollution

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The U.S. Supreme Court waded into L.A. River pollution issues Tuesday. Oral arguments were presented concerning pollution that flows from the river into the ocean — and who's responsible for treatment.

Rainwater from 84 cities in Los Angeles County flows into the L.A. and San Gabriel rivers — via concrete flood control channels — into the Pacific Ocean, carrying with it pesticides, motor oil, and animal waste. Timothy Coates, attorney for the L.A. County Flood Control District, said the question is: "Whose storm water is bearing the pollutants and responsible for the exceedances that are detected at these monitoring stations?"

Coates told the High Court the Flood Control District is the “largest player” in the system, but that doesn’t mean it’s responsible for all the pollution, something the 9th Circuit Court of Appeals agreed with.

But Justice Antonin Scalia told Coates he was "perplexed."  If, as Coates said, each alleged polluter is only responsible for his own pollution, and the monitors the District sets up can't identify who is responsible for the pollution, "Whose fault is that?"

Justice Sonia Sotomayor described it as a "regulatory void" and asked whether the Flood Control District has any obligation to figure out who was causing the pollution, once it is detected by the monitors. Coates told the Justices the problem was addressed in a new operating permit that will make it easier to track the source of pollution.

Justices appeared reluctant to put the courts in charge of compliance with clean water rules. Justice Stephen Breyer said "stormwater is really a big problem and it's really complicated how you work it out, and we want the agencies to work it out." He said you could find an expert or do it through the permitting process.

Aaron Colangelo, the attorney who represented the Natural Resources Defense Council before the Court, said they'd done both, spending years in litigation.

Outside the court, Colangelo said it was important for the High Court to uphold the 9th Circuit ruling because the new permit hasn’t yet gone into effect: "We would have the District undertaking the pollution control starting as soon as possible." Colangelo said the district could expand what he calls “green infrastructure” to intercept stormwater before it flows downstream.

But Coates warned that the 9th Circuit decision contained “odd language” that could force farmers and power companies to comply with pollution controls. He says that means any time you improve a water system – "whether you’re doing irrigation, water transfer, hydro electric power, once you change a 'naturally occurring river,' suddenly you have a discharge site for purposes of the Clean Water Act."

 The Supreme Court is expected to issue its ruling next year.

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