It's a Critical Time for the Clean Water Act

As the federal law approaches its 40th anniversary, there is still a lot of debate over what bodies of water the act protects.
by | September 24, 2012
fordsbasement/Flickr CC

Tom Arrandale

Tom Arrandale is a GOVERNING correspondent.

There's not much left of the shady willow and cottonwood oasis that once traced the Los Angeles River to the Pacific Ocean. After a series of deadly floods in the 1930s, the U.S. Army Corps of Engineers poured 2 million cubic yards of concrete that lines most of the 50-mile-long riverbed. These days, the stream ordinarily "carries only a trickle of water and often looks more like a dry roadway," U.S. Supreme Court Justice Anthony M. Kennedy said.

Kennedy offered that description in a split and somewhat confusing Supreme Court decision in 2006 that circumscribed federal Clean Water Act protections for threatened wetlands. At issue in Rapanos v. United States was a plan to build a shopping center and condominiums on Michigan land that contained 50 acres of forested wetland and meadows. Justice Antonin Scalia and three other conservative justices argued that wetlands must have a "continuous surface connection" to a standing or steadily flowing waterway to qualify for protection under the act.

While Kennedy concurred in the decision, his opinion proposed an alternative for regulating wetlands, saying only a "significant nexus" to navigable waters was required. Kennedy, a Californian himself, cited the Los Angeles River in objecting to what he saw as his colleague's overly stringent interpretation of what streams are navigable. He argued that the interpretation could go too far by denying federal jurisdiction over significant rivers. In 2010, the Environmental Protection Agency applied Kennedy's definition when it declared the Los Angeles River a navigable stream subject to federal water quality standards.

This fall, the High Court will consider another Clean Water Act case that affects the concrete-lined channel and the water that sometimes rages down it. The case deals directly with contaminated stormwater runoff and what governments must do to clean it up. The law requires factories and municipal sewage treatment plants to install treatment systems to limit how much "point-source" pollutants they discharge into navigable U.S. bays, lakes and streams. In 1987 amendments, Congress also ordered local governments to obtain point-source permits and measure the contaminants carried into nearby waters. But instead of requiring agencies to install treatment plants, the law allows them to reduce polluted runoff by promoting "best management practices," such as landscaping that retains rain and filters contaminants from stormwater.

When it comes to the Los Angeles River and adjacent streams, the National Resources Defense Council and the California-based Santa Monica Baykeepers argue that these practices don't go far enough. Monitors along the Los Angeles River still detect excessive fecal bacteria, cyanide, metals and other contaminants in runoff that passes downstream through the manmade channel. Debris and chemicals befoul popular beaches and wash a toxic plume miles offshore at the river's Pacific Ocean outlet. As a result, the two organizations have taken Los Angeles County to court for not doing enough to cleanse those contaminants from the rivers.

Last year, the 9th U.S. Circuit Court of Appeals agreed that the county was in violation of the Clean Water Act. The decision, if it stands, would hold the district legally responsible for all the oil, animal waste, pesticides and other pollutants that rainstorms rinse into the river from homes, factories and streets across a 3,100 square-mile area that is managed by 84 separate municipalities.

Los Angeles County has worked with city governments to create artificial wetlands and restore natural riverbanks to slow runoff. But district officials "have no land-use authority within the watershed where the pollution is originating," says Gary Hildebrand, Los Angeles County's watershed management director. "The cost is going to be billions of dollars, and municipalities are going to be looked at to bear that burden."

The county has appealed the ruling to the U.S. Supreme Court, and the case has been joined by the National Association of Counties, National Governors Association, and other state and local organizations. They argue that the 9th Circuit judges ignored the distinction Congress drew between unpredictable stormwater runoff and predictable discharges that factories and sewage treatment plants pipe directly into lakes and streams. "In the case of stormwater, the situation is caused by an act of nature rather than an act of man," says California attorney Roderick E. Walston, the counsel for the Supreme Court challenge.

In a separate case, the Supreme Court is also reviewing a 9th Circuit decision that classifies runoff down logging road ditches in Oregon forests as point-source discharges that require federal permits. Attorneys and industrial groups have long regarded the 9th Circuit judges as unduly sympathetic to environmental causes. At the same time, in recent years the Supreme Court has consistently overturned its decisions on the subject matter. Environmental lawyers suggest that the four most conservative justices are looking to curtail the Clean Water Act's reach, and Kennedy could once again hold a swing vote.

As it is, Kennedy's 2006 opinion highlights how difficult it's been to define exactly what bodies of water federal law protects. Federal agencies, state regulators and lower courts are still parsing through several ambiguous wetlands rulings. Upcoming rulings could either clarify or enormously complicate what city and county governments must do with contaminated runoff washing down stormwater drains. Despite 40 years of the Clean Water Act, confusing legal distinctions still stand in the way of cleaning up polluted waterways.


More from Columns