[CN] – The Ninth Circuit on Monday reversed dismissal of environmental groups’ challenge to how Los Angeles County discharges polluted storm water, because the county has not made it “‘absolutely clear’ that no violation will occur in the future.”
The long-running dispute started in 2008, when the Natural Resources Defense Council claimed that L.A. County and its Flood Control District violated their 2001 National Pollutant Discharge Elimination System permit by discharging water that was more heavily polluted than allowed.
The county took out a new permit in 2012, which was more complicated, and included deadlines for achieving water quality in polluted areas. The county has begun setting up programs to cover all of its watershed areas and has obtained approval for some of them. So, the county argued, it was in compliance with the 2012 permit and the environmentalists’ requests for civil penalties and injunctive relief were moot. The district court agreed with the county regarding and dismissed.
The Ninth Circuit panel unanimously reversed on Monday.
“The plaintiffs’ claims for injunctive relief are not moot because the county defendants are still subject to receiving water limitations, which are substantially the same as the limitations in the 2001 permit,” Ninth Circuit Judge Milan D. Smith wrote. “Although the county defendants are significantly less likely to violate those limitations under the 2012 Permit, because of the delay and partial exemption afforded by the safe harbor of WMPs and EWMPs, it is not ‘absolutely clear’ that their violations will not recur.”
The county argued that the 2012 permit’s compliance requirements superseded those of the 2001 permit. But Judge Smith found that the baseline limitations are almost the same and the onus is on the county to maintain compliance.
“Because compliance is conditional on the success of these programs, the county defendants bear the burden of demonstrating that it is ‘absolutely clear’ the violations will not recur, either through the use of the safe harbor of the WMPs [watershed management programs] and EWMPs [enhanced watershed management programs] or through actual pollution reduction measures.”
The district court also agreed with the county’s argument that that there was no evidence that the county would not comply with the 2012 permit. But this erroneously shifted the burden of proof to the plaintiffs, to demonstrate that future violations would occur. The county did not provide evidence that continued compliance was likely, as since the safe harbor program may violate the Clean Water Act and the watershed management programs will be costly and complicated.
The 2012 permit created a safe harbor program that allowed permit-holders to “initiate, develop, revise, and implement a voluntary watershed management program … or enhanced watershed management program,” Smith wrote.
“Until the county defendants have finished the process of financing and implementing the WMPs, there is a significant likelihood that they will be subject to and violate the baseline receiving water limitations. Initiation of a reform process cannot, standing alone, make it ‘absolutely’ clear’ that the reformation will last.”
Steve Fleischli, the council’s water director and senior attorney praised the ruling.
“We’re pleased that the court has confirmed our right to seek injunctive relief,” Fleischli said. “I think it’s important that the country stick to their obligation to clean up their storm water pollution.”
Polluted storm water is a major problem in many urban areas, he said, where it can get into local rivers and lakes and harm wildlife. In Los Angeles, the polluted water is shunted into the oceans and has an adverse impact on the beaches, an area of great economic import to Southern California, making it all the more important for the county to fix this problem.
“The way we view that, the county has an obligation to do all that now, and they’ve been dragging their feet on that,” Fleischli said.
Aaron Colangelo, the council’s co-litigation director, argued the case.
Joining Smith on the panel were Ninth Circuit Judge Harry Pregerson and U.S. Senior District Judge H. Russel Holland, from the District of Alaska, sitting by designation.
Joining the Natural Resources Defense Council as plaintiff/appellant is Santa Monica Baykeeper.