Record and brief — Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc.

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No. 11-460

Title Los Angeles County Flood Contro! District, Petitioner

Natural Resources Defense Council. Inc.. et a!

Docketed. October 13, 2011

Lower Ct: United States Court of Appeals for the Ninth Circuit

Case Nos.: (10-56017)

Decision Date July 13, 2011

Questions

Presented

~~~Date~~~ ~~~~~~~ Proceedings and Orders ~~~

Oct 11 2011 Petition for a writ of certiorari filed. (Response due November 14, 2011)

Nov 32011 Order extending time to file response to petition to and including December 14, 2011.

Nov 11 2011 Brief amici curiae of League of California Cities, et al. filed.

Nov 14 2011 Brief amicus curiae of California Stormwater Quality Association filed

Nov 14 2011 Brief amicus curiae of Nationa! Association of Flood and Stormwater Management

Agencies filed.

Nov 14 2011 Brief amicus curiae of Florida Stormwater Association filed

Dec 14 2011 Brief of respondents Natura! Resources Defense Council, Inc., et al. in opposition filed

Dec 27 2011 Reply of petitioner Los Angeles County Flood Contro! District filed. (Distriouted)

Dec 28 2011 DISTRIBUTED for Conference of January 13. 2012

Jan 17 2012 The Solicitor General is invited to file a brief in this case expressing the views of the

United States.

May 23 2012 Brief amicus curiae of United States filed.

Jun 12012 Supplemental brief of respondents Natura! Resources Defense Council, Inc., et al. filed

Jun 42012 Supplemental brief of petitioner Los Angeles County Flood Contro! District filed.

Jun5 2012 DISTRIBUTED for Conference of June 21, 2012

Jun 25 2012 Petition GRANTED limited to Question 2 presented by the petition

Jul 112012 The time to file the joint appendix and petitioner's brief on the merits is extended to and

including August 16, 2012.

Jul 112012 The time to file respondents’ brief on the merits is extended to and including October 15

2012.

Aug 10 2012 The time to file respondents’ brief on the merits is further extended to and including

October 29, 2012.

Aug 10 2012 The time to file the joint appendix and petitioner's brief on the merits is further extended

to and including September 6, 2012.

Aug 24 2012 Brief amici curiae of National Governors Association. et al. filed

Sep 52012 Consent to the filing of amicus curiae briefs in support of either party or neither party

received from counsel! for the respondents

Sep 62012 Joint appendix (2 volumes) filed (Statement of costs filed)

Sep 6 2012

Brief of petitioner Los Angeles County Flood Control District filed

Sep 11 2012 Brief amici curiae of City of New York, et al. filed.

Sep 12 2012 Brief amici curiae of Nationwide Public Projects Coalition. et al. filed.

Sep 13 2012 Brief amicus curiae of United States in support of neither party filed

Sep 13 2012 Brief amicus curiae of Nationa! Association of Home Builders filed.

Sep 13 2012 Consent to the filing of timely amicus curiae briefs. in support of either party or neither

party, received from counsel for the petitioner

Sep 13 2012 Brief amici curiae of League of California Cities, et al. filed

Sep 13 2012 Brief amici curiae of National Hydropower Association, et al. filed.

Sep 13 2012 Brief amicus curiae of Western Coalition of Arid States filed

Sep 13 2012 Brief amici curiae of Western Urban Water Coalition. et al. filed.

Sep 13 2012 Brief amicus curiae of Albuquerque Metropolitan Arroyo Flood Control Authority filed.

Sep 13 2012 Brief amici curiae of National Association of Flood and Stormwater Management

Agencies, et al. filed

Sep 13 2012 Brief amicus curiae of International Municipal! Lawyers Association filed.

Sep 142012 SET FOR ARGUMENT ON Tuesday. December 4. 2012

Sep 28 2012 Record received from U.S.C.A. for 9th Circuit. (1 envelope)

Sep 28 2012 Record from U.S.D.C. for Central District of California is electronic

Oct 17 2012 CIRCULATED.

Oct 29 2012 Brief of respondents Natural Resources Defense Council, Inc., et al. filed. (Distributed)

Nov 2 2012

Nov 5 2012

Brief amici curiae of Nationa! Wildlife Federation. et al. filed. (Distributed)

Brief amicus curiae of Friends of the Everglades filed. (Distributed)

Brief amicus curiae of Dr. Linwood Pendleton filed. (Distributed)

Brief amici curiae of Professors on the "Addition of a Pollutant’ Question filed

(Distributed)

Brief amicus curiae of Heal the Bay filed. (Distributed)

Brief amicus curiae of Professor Derek B. Booth filed. (Distributed)

Brief amicus curiae of Douglas Emmett, Inc. filed. (Distributed)

Brief amici curiae of Law Professors on deference to permit terms filed. (Distributed)

Brief amici curiae of Friends of the Los Angeles River, et al. filed. (Distributed)

Brief amici curiae of Alexandria Boehm. Ph.D. et al. filed. (Distributed)

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae

and for divided argument filed

Nov 20 2012 Motion of the Solicitor General for leave to participate in oral argument as amicus curiae

and for divided argument GRANTED.

Nov 21 2012 Reply of petitioner Los Angeles County Flood Contro! District filed. (Distributed)

Nov 28 2012 Letter from counsel for respondents’ citing additional authority filed and distributed.

Dec 4 2012

Argued. For petitioner: Timothy T. Coates, Los Angeles. Cal. For United States, as

amicus curiae: Pratik A. Shah, Assistant to the Solicitor General, Department of Justice

Washington. D. C. For respondents: Aaron Colangelo, Washington, D. C

Jan82013 Judgment REVERSED and case REMANDED. Ginsburg, J. delivered the Opinion of the

Court, in which Roberts. C. J.. and Scalia, Kennedy, Thomas, Breyer. Sotomayor, and

Kagan, JJ., joined. Alito, J., concurred in the judgment

PETITION

FOR

WRIT OF

CERTIORARI

; 2. 2. ‘J :

, Ste aoe eT eT i

i Rita ie

——_—— —— ee

Iu The

Supreme Court of the Anited States

LOS ANGELES COUNTY FLOOD CONTROL DISTRICT,

Petitioner,

vs.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

and SANTA MONICA BAYKEEPER,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

TIMOTHY T. COATES ANDREA SHERIDAN ORDIN,

Counsel of Record County Counsel

GREINES, MARTIN, STEIN JUDITH A. FRIES,

& RICHLAND LLP Principal Deputy

5900 Wilshire Boulevard, LAURIE E. Dons,

12th Floor Deputy County Counsel

Los Angeles, California 90036 OFFICE OF Los ANGELES

Telephone: (310) 859-7811 COUNTY COUNSEL

Facsimile: (310) 276-5261 500 West Temple Street,

E-Mail: tcoates@gmsr.com Room 653

Los Angeles, California 90012

Telephone: (213) 974-1923

Facsimile: (213) 687-7337

E-Mail:

jfries@counsel.lacounty.gov

HOWARD GEST

Davip W. BURHENN

BURHENN & GEST LLP

624 South Grand Avenue,

Suite 2200

Los Angeles, California 90017

Telephone: (213) 629-8787

Facsimile: (213) 688-7716

E-Mail: hgest@burhenngest.com

Counsel for Petitioner

Los Angeles County Flood Control District

COCKLE LAW BRIEF PRINTING CO (suv) 225-6984

OR CALL COLLECT 1402) 342-°*%51

QUESTIONS PRESENTED

The Clean Water Act regulates the addition of

pollutants to the navigable waters of the United

States, including pollutants stemming from munici-

pal stormwater systems. 33 U.S.C. §1342(p).

_ The questions presented by this petition are:

1. Do “navigable waters of the United States”

include only “naturally occurring” bodies of water

so that construction of engineered channels or

other man-made improvements to a river as part

of municipal flood and storm control renders the

improved portion no longer a “navigable water”

under the Clean Water Act?

2. When water flows from one portion of a river that

is navigable water of the United States, through

a concrete channel or other engineered improve-

ment in the river constructed for flood and

stormwater control as part of a municipal sepa-

rate storm sewer system, into a lower portion of

the same river, can there be a “discharge” from

an “outfall” under the Clean Water Act, notwith-

standing this Court’s holding in South Florida

Water Management District v. Miccosukee Tribe of

Indians, 541 U.S. 95, 105 (2004), that transfer of

water within a single body of water cannot con-

stitute a “discharge” for purposes of the Act?

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The parties to the proceeding in the court whose

judgment is sought to be reviewed are:

¢ Natural Resources Defense Council, Inc., and

Santa Monica Baykeeper, plaintiffs, appel-

lants below, and respondents here.

* Los Angeles County Flood Control District,

defendant, appellee below, and petitioner

here.

In addition, the County of Los Angeles was a

defendant in the underlying action and an appellee in

the proceedings below, but is not a party to the peti-

tion in this Court.

There are no publicly held corporations involved

in this proceeding.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................ccccesecesseeees i

PARTIES TO THE PROCEEDING AND RULE

TET oc scsscuciiciiibishicieniiinipiiinininboaianendiiiie ii

I ai censinninsiniinspirtasiineniineiaiinabisineeitin 1

BASIS FOR JURISDICTION IN THIS COURT.... 1

STATUTORY PROVISIONS AT ISSUE ................ 2

STATEMENT OF THE CASE.............ccccccessssesereees 5

A. The Clean Water Act’s Regulation Of Mu-

ES ED ecccerncccnscesnsscccniscscseseenssnes 5

B. The Permit That Is The Subject Of The

ED icnciccrssecscicnnsesesescnsannses 8

Fe itiitiacntniniicninntneincinitnanenentidiatanien 10

D. The District Court’s Decision ...................... 10

E. The Ninth Circuit’s Decision ....................... 13

REASONS WHY CERTIORARI IS WARRANTED.... 18

I. REVIEW IS WARRANTED BECAUSE

THE NINTH CIRCUITS HOLDING THAT

MAN-MADE IMPROVEMENTS TO A NAV-

IGABLE WATER OF THE UNITED STATES

SUCH AS CHANNELIZATION AS PART

OF FLOOD CONTROL OR A MUNICIPAL

SEPARATE STORM SEWER SYSTEM

ALTERS ITS STATUS, IS INCONSISTENT

WITH THE PROVISIONS OF THE CLEAN

WATER ACT, THIS COURTS DECISION

IN RAPANOS V. UNITED STATES, AND

THE DECISIONS OF OTHER CIRCUITS... 24

II.

TABLE OF CONTENTS -— Continued

Page

A. The Ninth Circuit’s Conclusion That

Man-Made Alterations To A Navigable

Water May Change Its Character For

Purposes Of The Clean Water Act Is

Unsupported By The Act Itself And

Relevant Regulations ..........................+.

B. The Ninth Circuit’s Decision Is Incon-

sistent With Rapanos v. United States,

And The Decisions Of Other Federal

RES ER Aer ne ora ee

C. The Ninth Circuit’s Unprecedented Al-

teration Of The Definition Of What

Constitutes A “Navigable Water Of The

United States” Has Impact Beyond

Regulation Of Stormwater....................

REVIEW IS WARRANTED BECAUSE THE

NINTH CIRCUITS HOLDING THAT PE-

TITIONER MAY BE LIABLE FOR DIS-

CHARGES RESULTING FROM WATERS

OF THE LOS ANGELES AND SAN

GABRIEL RIVERS PASSING THROUGH

ITS CHANNELS WITHIN THE RIVERS,

IS CONTRARY TO SOUTH FLORIDA

WATER MANAGEMENT DISTRICT V.

MICCOSUKEE TRIBE OF INDIANS

WHICH FORECLOSES CLAIMS PREM-

ISED UPON MERE TRANSFERS OF

WATER WITHIN A SINGLE BODY OF

TABLE OF CONTENTS -— Continued

Page

Il. REVIEW IS WARRANTED TO PROVIDE

CLEAR GUIDELINES ON FUNDAMEN-

TAL PROVISIONS OF THE CLEAN WA-

TER ACT AND SPECIFIC PROVISIONS

CONCERNING REGULATION OF STORM-

ee ctctsceencenecenssnetnnnsatendnctesmnaiicuntienatituntes 42

NE IEIET cxcevcssnoccsosesibesscnecosenenpvesncenenevsensenasees 45

APPENDIX

July 13, 2011, Opinion and Order, Natural

Resources Defense Council, Inc., et al. v.

County of Los Angeles, et al., United States

Court of Appeals for the Ninth Circuit ........... App. 1

March 10, 2011, Opinion, Natural Resources

Defense Council, Inc., et al. v. County of Los

Angeles, et al., United States Court of Ap-

peals for the Ninth Circuit .......................0 App. 51

April 26, 2010, Civil Minutes, Natural Re-

sources Defense Council, Inc., et al. v. County

of Los Angeles, et al., United States District

Court, Central District of California............. App. 98

March 2, 2010, Civil Minutes, Natural Re-

sources Defense Council, Inc., et al. v. County

of Los Angeles, et al., United States District

Court, Central District of California........... App. 103

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma, 503 U.S. 91 (1992)............00 6

Headwaters, Inc. v. Talent Irrigation District,

243 F.3d 526 (9th Cir. 2001) ..............0+. 21, 29, 36, 37

Kaiser Aetna v. United States, 444 U.S. 170

Tiree hccdesinnnanesinestnnistemninnsbasninttnetsieainnintenennned 34

Natural Resources Defense Council v. EPA,

1966 F.2d 1292 (9th Cir. 1992) .............cccccceeeeeeeeeeeees 7

Rapanos v. United States, 547 U.S. 715 (2006).... passim

S.D. Warren Co. v. Maine Board of Environ-

mental Protection, 547 U.S. 370 (2006)............ 40, 41

South Florida Water Management District v.

Miccosukee Tribe of Indians, 541 U.S. 95

Til ictinibsinepnarsincandnniupiiiatibatidaaiioncitinnsninentiimeaiinia passim

United States v. Appalachian Electric Power

hs, ee Ss HIP Ce icnncnetthienscnsneatansinsenaierecaiel 34

United States v. Eidson, 108 F.3d 1336 (11th

Sn AT isciccuinsithemitincinicianbiinteitinptameniiiaamiiemaell 21, 35, 37

United States v. Moses, 496 F.3d 984 (9th Cir.

rei Nidciadibnntenannsinpaenesinieiubiinaniiunnabaninttiiamnninenaedl 36, 37

United States v. Robison, 505 F.3d 1208 (11th

TT cssiicicinieenlteetb itr iiaetaiineanieniataliaeaiaiieed 21, 35

United States v. Vierstra, __ F. Supp. 2d __

2011 WL 1064526 (D.Idaho 2011) .................... 35, 37

Vii

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES AND REGULATIONS

Ba ts SE criseensecnenesterinenoninmmnatiaunbinimtinicennens 1

33 C.FLR. §329.8(8)(1)-(2)..........cccpeceseecceescsseseeeceesecerees 34

8 35

aE TIED aternsecchincentemmnnedtpetecniinnetasinainictationcentasinitedl 34

NN iinet ttcet celia tid 5,6

EC | | ee 37

ee Sic icrsstiicsnissnittinnisiaciastiasataciusieasastinieiaiasiaastl 37

SU itaaeieiitanasatailaaiit aa catia 6

BO UBC. GIBEB OM 1)...n....sccccccceccccecesccccccocscccccvcccccosesees 6

33 U.S.C. §1342(b 1c) .........cesceeccescssscescseseeeseeceseeecesees 6

SF I SI ccrcniicicnsssindinnsiitiiiieinitiniaesetnaiiiusaatil 2,6, 18

33 U.S.C. §1342(pX3)...........cccccccccesesececsessececeeees 3, 7, 24

Fe I: IIIT ccsinencnccsinsnennensssededsisiniimenenimenetimmensmensi: 37

eee 20, 27

BB U.S.C. $1BG6B(1D) .......cccccccscccccccccccccccsccrsccccccccsccee 6, 39

| ET ee, 6

SO UI... GABBER) on ccccccccccccveccccoceceoccscsccccsscscsoscecccovcece 10

| LES 20, 28, 30, 32

Fe Si csieccsrsstiinesitenenintamntasaepemittapaanamiaitaiaia 4, 24

SD Cie BE i a acecccseccececccccccovecsccecccnseccccccccesees 5, 41

40 C.FLR. §122.26(aX 3) i(iv) ..........eeecceeesceseeeeeseeees 4,8

GO C.F. GEBB.BBIA) .nocccverccesccccccsccsecesevececsccocssssenseses 9

TABLE OF AUTHORITIES -— Continued

Page

ee I iii cnccrrrniemietnnincccmrrenameiemaenel 4, 30

40 C.FLR. §122.26(b8Yi)..... ec ceeeceeeeceeetseeeeeeeeeeees 4,31

40 C.F.LR. §122.26( bX 8) ii)...........scccccecesserccsserceeeesees 5, 31

NE 5, 31

53 Fed. Reg. 49453 .......ccccccsscscescscessesessesessreeseeeees 30, 31

STATE STATUTES

Cal. Water Code, $1837 ..........cccccccccccccccccscccccccecescoosees 6

4 _, SEE 6

OTHER AUTHORITIES

B. Gumprecht, The Los Angeles River: Its Life,

Death, and Possible Rebirth (1999).................. 34, 44

http://www.epa.gov/region9/mediacenter/LA-river/

LASpecialCaseLetterandEvaluation.pdf ac-

cessed March 30 and October 7, 2011.................. 16

OPINIONS BELOW

The July 13, 2011 order and opinion of the United

States Court of Appeals for the Ninth Circuit that is

the subject of this petition is reported at _ F.3d__,

2011 WL 2712963 (9th Cir. 2011) and reproduced in

the Appendix hereto (“App.”) at pages 1-50. The Ninth

Circuit’s initial opinion was published at 636 F.3d

1235 (9th Cir. 2011) and is reproduced in the Appen-

dix at pages 51-97.

The district court’s two orders granting peti-

tioner’s motion for summary judgment with respect

to the claims involved in this petition are not pub-

lished and are reproduced in the Appendix at pages

98-102 and 103-32, respectively.

BASIS FOR JURISDICTION IN THIS COURT

The Ninth Circuit initially filed an opinion in this

case on March 10, 2011. (App.51.) Petitioner timely

filed a petition for rehearing. On July 13, 2011, the

Ninth Circuit issued an order withdrawing its prior

opinion and replacing it with an opinion filed that

date, and denying the petition for panel rehearing

and rehearing en banc. (App.1-2.)

28 U.S.C. section 1254(1) confers jurisdiction on

this Court to review on writ of certiorari the July 13,

2011 opinion and judgment of the Ninth Circuit.

STATUTORY PROVISIONS AT ISSUE

The underlying action was brought by the re-

spondents to enforce permit requirements pursuant

to provisions of the Clean Water Act (33 U.S.C.

§1342(p)), which provides in pertinent part:

(p) Municipal and industrial stormwater

discharges

(1) General rule

Prior to October 1, 1994, the Administra-

tor or the State (in the case of a permit

program approved under this section)

shall not require a permit under this

section for discharges composed entirely

of stormwater.

(2) Exceptions

Paragraph (1) shall not apply with re-

spect to the following stormwater dis-

charges:

(A) Adischarge with respect to which a

permit has been issued under this sec-

tion before February 4, 1987.

(B) A discharge associated with indus-

trial activity.

rate storm sewer system serving a popu-

lation of 250,000 or more.

(3)

(A)

(B)

(D) Adischarge from a municipal sepa-

rate storm sewer system serving a popu-

lation of 100,000 or more but less than

250,000.

(E) A discharge for which the Admin-

istrator or the State, as the case may

be, determines that the stormwater dis-

charge contributes to a violation of a wa-

ter quality standard or is a significant

contributor of pollutants to waters of the

United States.

Permit requirements

Industrial discharges

Permits for discharges associated with

industrial activity shall meet all appli-

cable provisions of this section and sec-

tion 1311 of this title.

Municipal discharge

Permits for discharges from municipal

storm sewers —

(i) may be issued on a system- or juris-

diction-wide basis;

(ii) shall include a requirement to ef-

fectively prohibit non-stormwater dis-

charges 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 provisions as the Administra-

tor or the State determines appropriate

for the control of such pollutants.

The issues raised in this petition and addressed

by the Ninth Circuit concern provisions of 40 C.F.R.

section 122.26 in pertinent part:

(a) Permit requirement.

* * *

(3) Large and medium municipal separate

storm sewer systems. (i) Permits must be

obtained for all discharges from large and

medium municipal separate storm sewer

systems....

(b) Definitions.

- * *

(8) Municipal separate storm sewer means

a conveyance or system of conveyances (in-

cluding roads with drainage systems, munic-

ipal streets, catch basins, curbs, gutters,

ditches, man-made channels, or storm drains):

(i) Owned or operated by a State, city, town,

borough, county, parish, district, association,

or other public body (created by or pursuant

to State law) having jurisdiction over dis-

posal of sewage, industrial wastes, storm

water, or other wastes, including special dis-

tricts under State law such as a sewer

district, flood control district or drainage dis-

trict, or similar entity, or an Indian tribe or

an authorized Indian tribal organization, or

a designated and approved management

agency under section 208 of the CWA that

discharges to waters of the United States;

(ii) Designed or used for collecting or con-

veying storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned

Treatment Works (POTW) as defined at 40

CFR 122.2.

(9) Outfall means a point source as defined

by 40 CFR 122.2 at the point where a munic-

ipal separate storm sewer discharges to wa-

ters of the United States and does not

include open conveyances connecting two

municipal separate storm sewers, or pipes,

tunnels or other conveyances which connect

segments of the same stream or other waters

of the United States and are used to convey

waters of the United States.

STATEMENT OF THE CASE

A. The Clean Water Act’s Regulation Of Mu-

nicipal Stormwater.

In 1972, Congress adopted amendments to the

Federal Water Pollution Control Act (33 U.S.C. §1251,

et seq.). After subsequent amendments in 1977, the

statutes became known as the Clean Water Act

(“CWA” or “the Act”). The purpose of the CWA is to

“restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§1251.

In the CWA, Congress established the National

Pollution Discharge Elimination System (“NPDES”)

(33 U.S.C. $1342), as one of the means to achieve the

CWA’s goals. Arkansas v. Oklahoma, 503 U.S. 91,

101-02 (1992).

33 U.S.C. section 1342(aX1) provides that the Ad-

ministrator of the Environmental Protection Agency

(“EPA”) may issue an NPDES permit “for the dis-

charge of any pollutant.” The CWA defines “discharge

of a pollutant” as “any addition of any pollutant to

navigable waters from any point source” or “any

addition of any pollutant to the waters of the contigu-

ous zone or the ocean from any point source other

than a vessel or floating craft.” 33 U.S.C. §1362(12).A

“point source” is defined as “any discernible, confined

and discrete conveyance ... from which pollutants

are or may be discharged.” 33 U.S.C. §1362(14). The

EPA Administrator may delegate NPDES permit

authority to a state. 33 U.S.C. §1342(b)-(c). California

has been delegated this authority. See Cal. Water

Code §13370. In California, NPDES permits are is-

sued by the State Water Resources Control] Board or a

Regional Water Quality Control Board. Jd. at §13377.

In 1987 Congress enacted the Water Quality

Act amendments, which established a new statutory

scheme for the regulation of stormwater runoff. 33

U.S.C. §1342(p). The amendments set forth dates by

which certain categories of stormwater dischargers

were required to obtain permits (see Nature! Re-

sources Defense Council v. EPA, 1966 F.2d 1292, 1296

(9th Cir. 1992)), and also enacted special provisions

addressing municipal stormwater permits.

The 1987 amendments provided that permits for

discharges from municipal storm sewers:

(i) may be issued on a system- or jurisdiction-

wide basis;

(ii) shall include a requirement to effectively

prohibit non-stormwater discharges into the

storm sewers; and

(iii) shall require controls to reduce the dis-

charge of pollutants to the maximum extent

practicable, including management practices,

control techniques and system, design and

engineering methods, and such other provi-

sions as the Administrator or the State de-

termines appropriate for control of such

pollutants.

33 U.S.C. §1342(pX3).

These provisions of the Act are focused on munic-

ipal separate storm sewer systems — “MS4s,” which

are systems handling only stormwater and not sew-

age.’ Recognizing that it may be impracticable, or

* The Ninth Circuit refers to general municipal separate

storm sewer systems as “ms4s,” and the municipal separate

storm sewer system maintained by petitioner as the “MS4.” (See

App.8 n.2.) For sake of clarity, petitioner will instead follow com-

mon practice, and use the term “MS4” as a simple abbreviation

(Continued on following page)

undesirable to issue individual permits for MS4s

operated by multiple municipalities within a large

geographic area, EPA promulgated regulations allow-

ing issuance of a permit covering multiple MS4s. See

40 C.F.R. §122.26(aX3Xi)-(vi).

B. The Permit That Is The Subject Of The

Underlying Litigation.

In December 2001, the California Regional Water

Quality Control Board, Los Angeles Region, issued an

NPDES Permit to 84 cities, the County of Los Angeles

and petitioner Los Angeles County Flood Control

District (“District”). (Excerpt of Record, “ER” 180-86.)

The purpose of the Permit was to regulate storm-

water and urban runoff discharges from each of the

86 MS4s operated by the permittees. (Jd.)

The Permit specifically recognized that “[cJertain

pollutants present in stormwater and/or urban runoff

may be derived from extraneous sources that Permit-

tees have no or limited jurisdiction over.” (ER 182,

Permit {B.2.) The Permit noted that “Federal, State,

Regional or local entities within the Permittees’

boundaries or in jurisdictions outside the Los Angeles

County Flood Control District, and not currently

named in this Order, may operate storm drain facili-

ties and/or discharge storm water to storm drains and

water courses covered by this Order.” (ER 187, Permit

for municipal separate storm sewer system and will indicate

when it is referring to its own MS4.

qD.2.) It further recognized the variability of storm-

water discharges, finding that “(t]he quality of these

discharges varies considerably and is affected by the

hydrology, geology, land use, season, and sequence

and duration of hydrologic events.” (ER 182, Permit

qB.1.)

Although the Permit was issued to 86 separate

entities, under its terms, each permittee was respon-

sible only for its own discharge: “Each Permittee is

responsible only for a discharge for which it is the

operator.” (ER 199, Permit 4G.4.) This is consistent

with federal regulations: “Co-permittee means a

permittee to an NPDES permit that is only responsi-

ble for permit conditions relating to the discharge for

which it is operator.” 40 C.F.R. §122.26(b\(1); see also

ER 204, Permit, Part 3 D.1 (providing that the peti-

tioner District, designated as principal permittee, “is

not responsible for ensuring compliance of any indi-

vidual Permittee”).

The Permit also included a monitoring and re-

porting program. (ER 258-79.) The primary objectives

of the monitoring and reporting program were: as-

sessing compliance with the Permit; measuring and

improving the effectiveness of the stormwater quality

management plans; assessing the chemical, physical

and biological impacts of receiving waters resulting

from urban runoff; undertaking the characterization

of stormwater discharges; identifying sources of pol-

lutants; and assessing the overall health and evalu-

ating long-term trends in receiving water quality. (ER

263.) These objectives would be accomplished through

various activities, including the monitoring of “mass-

emissions” at seven mass-emissions monitoring sta-

tions. (ER 263.)

C. The Lawsuit.

On March 3, 2008, respondents Natural Re-

sources Defense Council and Santa Monica Bay-

keeper filed a complaint against the County of Los

Angeles, individual members of its Board of Supervi-

sors in their official capacity, the head of the Los

Angeles County Department of Public Works, and

petitioner District under 33 U.S.C. section 1365(a).

Respondents subsequently filed a first amended com-

plaint asserting six claims for relief, with the first

four claims alleging that discharges from the County’s

and petitioner District’s MS4s caused or contributed

to exceedances of water quality standards at the mass-

emissions momitoring stations in the Santa Clara

River, Los Angeles River, San Gabriel River, and

Malibu Creek watersheds in violation uf Part 2.1 of

the Permit. (ER 453-58; see also 414, 426, 430-45.)

The district court referred to these allegations as the

“watershed claims.”

D. The District Court’s Decision.

Respondents moved for partial summary judg-

ment against petitioner District with respect to ex-

ceedances of water quality standards in the Los

Angeles and San Gabriel Rivers. (App.104; ER 9.)*

Defendants, including petitioner, also moved for sum-

mary judgment as to all watershed claims. (App.105;

ER 9.)

Respondents contended that exceedances meas-

vied at the mass-emissions monitoring stations in

and of themselves established a violation of the

Permit that could be fairly attributable to the pe-

titioner District's MS4. (App.117-18.) Defendants,

including petitioner, contended in turn, that the

mass-emissions monitoring station data could not be

used to determine compliance with the Permit (a

contention rejected by the district court) and there

was no evidence of a “discharge” from defendants’

MS4 that violated the Permit. (App.116.)

The district court initially denied both motions

for summary judgment, concluding that an issue of

fact existed as to whether pollutants in discharges

from the District’s MS4 exceeded the water quality

standards set by the Permit. (App.105, 121-22.)

At the same time, the district court rejected re-

spondents’ contention that because the monitoring

stations were within channelized portions of the

rivers operated by District as part of its flood control

system, the District was responsible for any ex-

ceedances measured there. This was because in order

* The parties moved for summary judgment with respect to

other claims that are not relevant to this petition.

for there to be a discharge for which the petitioner

District could be liable, it was necessary that water

be discharged from a “point source,” and this Court

had expressly held in South Florida Water Manage-

ment District v. Miccosukee Tribe of Indians, 541 U.S.

95, 105 (2004), that simply moving water between

two portions of the same water body did not consti-

tute a “discharge” from a point source under the

Clean Water Act. (App.119.) The district court em-

phasized that there was no evidence that the Los

Angeles River and San Gabriel River below the mass-

emissions monitoring stations were bodies of water

distinct from the MS4 above the monitoring stations,

and found there was no evidence to “show where the

MS4 ends and either River begins.” (App.119.)

As the district court observed:

In order for the District’s actions to violate

Part 2.1 of the Permit, it must be discharg-

ing pollutants from a point source. The Court

has been presented with no evidence clearly

establishing that the District is discharging

pollutants from any given point source at or

near the monitoring stations.

(App.119.)

The district court ordered the parties to file

supplementary pleadings indicating whether there

were any facts showing that the standards-exceeding

pollutants identified at the mass-emissions monitor-

ing stations had at any time passed through defen-

dants’ “outflows” at or near the time the exceedances

were observed in the monitoring station data.

(App.122.)

On April 26, 2010, following receipt of supple-

mentary briefing, the district court granted summary

judgment to petitioner on all watershed claims.

(App.98.) The court found that respondents had failed

to present evidence that the standards-exceeding

pollutants passed through the District’s MS4 outflows

at or near the time the exceedances were observed.

(App.100.) Nor did respondents provide any evidence

that the mass-emissions monitoring stations them-

selves are located at or near one of petitioner’s out-

falls. (Id.) The court again emphasized, that under

the Permit, the District was only a co-permittee and

that it could not be held liable for exceedances that

may have been caused by discharges from outflows

maintained by other co-permittees upstream from the

mass-emissions monitoring stations. (App.101-02.)

E. The Ninth Circuit’s Decision.

Following briefing by the parties and oral argu-

ment, on March 10, 2011, the Ninth Circuit issued its

published opinion reversing the district court in part,

and directing the court to enter summary judgment

for respondents as against petitioner with respect to

the watershed claims regarding the Los Angeles and

San Gabriel Rivers. (App.51-52, 93-94, 96-97.) Writ-

ing for the court, Judge Smith agreed with the dis-

trict court that, contrary to respondents’ contention,

the mere presence of polluted stormwater at the

mass-emissions monitoring stations did not ipso facto

establish petitioner’s liability. (App.88-89.) However,

the Ninth Circuit held that the district court had

erred in concluding that there had not been a “dis-

charge” under the CWA from the petitioner’s MS4

into the Los Angeles or San Gabriel Rivers. The court

found that the monitoring stations were in concrete

channels maintained by petitioner as part of its MS4

and hence, when water exited these channels and

flowed back into the “naturally occurring” portions of

the “rivers,” this constituted a “discharge” from an

“outfall” for purposes of imposing liability on the

District for violation of the Permit. (App.91-92.) The

court explained:

[TJhere is evidence in the record showing

that polluted stormwater from the MS4 was

added to two of the Watershed Rivers: the

Los Angeles River and San Gabriel River.

Because the mass-emissions stations, as the

appropriate locetions to measure compliance,

for these two rivers are located in a section of

the MS4 owned and operated by the District,

when pollutants were detected, they had not

yet exited the point source into navigable

waters. As such, there is no question over

who controlled the polluted storm-water at

the time it was measured or who caused or

contributed to the exceedances when that

water was again discharged into the rivers —

in both cases, the District. As a matter of law

and fact, the MS4 is distinct from the two

navigable rivers; the MS4 is an intra-state

man-made construction — not a naturally

occurring Watershed River.

(App.91-92 (emphasis added).)

The court continued:

The discharge from a point source occurred

when the still-polluted stormwater flowed

out of the concrete channels where the Moni-

toring Stations are located, through an out-

fall, and into the navigable waterways. We

agree with Plaintiffs that the precise location

of each outfall is ultimately irrelevant be-

cause there is no dispute that MS4 eventu-

ally adds stormwater to the Los Angeles and

San Gabriel Rivers downstream from the

Monitoring Stations.

(App.92.)

The District timely filed a petition for panel

rehearing and rehearing en banc. Petitioner noted

that the Ninth Circuit’s opinion adopted a theory of

liability that had not been briefed by the parties,

namely that the District’s channelization of portions

of the Los Angeles and San Gabriel Rivers where the

mass-emissions monitoring stations were located,

somehow transformed these portions of the rivers

from being navigable waters into non-navigable dis-

crete portions of the District’s MS4 so as to allow a

“discharge” from an “outfall.” As the District ex-

plained, this was flatly contrary to uniform statutory

and case law holding that artificial channelization

of navigable waters does not alter their character

for purposes of the CWA. Indeed, as the District ob-

served, Justice Kennedy, in his concurring opinion in

Rapanos v. United States, 547 U.S. 715, 769 (2006),

had noted that the Los Angeles River “has been en-

cased in concrete and steel over a length of some 50

miles.”

Moreover, the District noted that the court’s sua

sponte resolution of the heretofore unbriefed and un-

contested issue concerning navigability was directly

contrary to the EPA's specific finding in a report

readily available on its website that the entire Los

Angeles River, from its mouth to its headwaters,

including the channelized portions noted in the Ninth

Circuit opinion, was a “traditional navigable water” of

the United States.’

Further, the District pointed out that by holding

that channelizing portions of the navigable rivers

somehow transformed their character so as to create

a discharge from an outfall within the meaning of the

Clean Water Act, the court had effectively overruled

this Court’s decision in Miccosukee Tribe, since the

court was finding a permit violation based on transfer

of water within a single navigable body of water.

The Ninth Circuit requested respondents to re-

spond to the petition for rehearing, and respondents

did so.

* http//Awww.epa.gov/region9/mediacenter/LA-river/LASpecial

CaseLetterandEvaluation pdf acceased March 30 and October 7,

2011. The District requested judicial notice of the EPA report.

On July 13, 2011, the Ninth Circuit issued its

order withdrawing its prior opinion, and issuing a

new opinion. (App.1-2.) The only major modification

of the prior opinion was to address an argument

raised by the parties in their briefing that was not

addressed in the prior opinion concerning the appro-

priate remedy in the event violations were found.

(App.37-38.) However, the court repeated, verbatim,

its reasoning from the prior opinion that the District

was liable for a “discharge” from an “outfall” based on

the fact that the monitoring stations were within

portions of the river that the District, as part of its

MS4, had improved with concrete channels. (See

App.44-45, and compare to App.91-92.) The court did

not address any of the points raised in the petition for

rehearing concerning long-standing law that a water

body’s status as a navigable water for purposes of the

CWA was not affected by its man-made nature. It de-

clined to address, let alone reconcile its holding with

the EPA’s own determination that the Los Angeles

River, including the channelized portions, constituted

navigable waters, and summarily denied the request

for judicial notice.

Nor did it address this Court’s holding in Mic-

cosukee Tribe that there could not be a “discharge”

within the Clean Water Act based upon merely trans-

ferring water from one portion of a single body of

water into another.

REASONS WHY

CERTIORARI IS WARRANTED

The Clean Water Act regulates discharge of

pollutants into the navigable waters of the United

States from stormwater runoff. It does so by imposing

a permit scheme for medium and large municipalities

to discharge stormwater into navigable waters. 33

U.S.C. §1342(p).

Here, respondents Natural Resources Defense

Council and Santa Monica Baykeeper sued petitioner

Los Angeles County Flood Control District, asserting

that it had violated its stormwater permit by improp-

erly discharging stormwater that exceeded water

quality standards into the Los Angeles and San

Gabriel Rivers. Respondents made no effort to estab-

lish that any of the District’s outfalls along the banks

of either river discharged stormwater containing

levels of pollutants exceeding those allowed by the

Permit. Instead, respondents argued that they need

not show a discharge — it was enough that the moni-

toring stations downstream from these outfalls ~

monitoring stations which they admitted were in the

Los Angeles and San Gabriel Rivers — indicated the

presence of pollutants exceeding the Permit’s stand-

ards.

Both the district court and the Ninth Circuit

rejected respondents’ argument, noting that numer-

ous other entities above the monitoring stations also

discharged stormwater into the rivers, and that it

was necessary for plaintiffs to provide some evidence

that the pollutants at issue stemmed from a District

outfall, and not from somewhere else. Indeed, the

district court granted summary judgment to peti-

tioner District on this claim, noting that plaintiffs

had not provided any evidence to establish any dis-

charge by the District.

Astonishingly, the Ninth Circuit nonetheless

reversed, relying on a newly-minted theory of liabil-

ity, one not argued or relied upon by the parties. Even

though respondents admitted that the monitoring

stations were located in the Los Angeles and San

Gabriel Rivers, the Ninth Circuit held that since the

monitoring stations were in channelized portions of

the rivers the District maintained for flood control,

water flowing out of those channels into “naturally

occurring” portions of the rivers downstream consti-

tuted a “discharge” from an “outfall” for purposes of

finding a permit violation by the District. In sum, the

Ninth Circuit held that the rivers lost their character

as navigable waters when they were channelized for

flood control, and were then transformed back into

navigable waters when flowing into “naturally occur-

ring” portions of the rivers.

The Ninth Circuit’s unprecedented ~ and unsup-

portable — construction of the Clean Water Act is

directly contrary to the decisions of this Court and

uniformly accepted statutory interpretations defining

navigable waters of the United States under the

Clean Water Act, or a “discharge” within the meaning

of the Act. As a result, it has caused confusion and

threatens ongoing disruption with respect to one of

the most fundamental services that public entities

provide — stormwater and flood control. It also creates

confusion as to the jurisdiction of federal agencies,

the EPA and U.S. Army Corps of Engineers, to reg-

ulate water bodies as navigable waters. Thus, certio-

rari is warranted for the following reasons.

1. Review is necessary because the Ninth Cir-

cuit’s holding that only “naturally occurring” waters

may be navigable waters of the United States, and

that man-made improvements somehow transforms

that status under the Clean Water Act, is directly

contrary to the statutory scheme of the Act, the de-

cisions of this Court, as well as other federal courts.

Nothing in the provisions of the Clean Water

Act nor accompanying regulations suggests that the

status of a body of water as a “navigable water”

depends upon whether it is man-made or “naturally

occurring.” 33 U.S.C. §1362(7); 40 C.F.R. §122.2. In

fact, the phrase “naturally occurring” was invented by

the Ninth Circuit out of whole cloth and is nowhere

referenced in the regulatory scheme.

In Rapanos v. United States, 547 U.S. 715 (2006),

a sharply divided Court differed on a precise def-

inition of what constituted a navigable water of

the United States, but neither of the tests urged by

the plurality and concurring opinions turned upon

whether a body of water was artificially altered or

“naturally occurring.” Both opinions expressly recog-

nized that man-made bodies of water could consti-

tute navigable waters. In his concurring opinion in

Rapanos, Justice Kennedy specifically identified the

Los Angeles River as fitting the statutory definition,

observing that, “it periodically releases water vol-

umes so powerful and destructive that it has been

incased in concrete and steel over a length of some 50

miles.” 547 U.S. at 769. Not surprisingly, the circuit

courts, including the Ninth Circuit itself, have previ-

ously recognized that man-made channels may be

waters of the United States under the Act. Head-

waters, Inc. v. Talent Irrigation Dist., 243 F.3d 526,

533 (9th Cir. 2001) [irrigation channels]; United

States v. Eidson, 108 F.3d 1336, 1342-43 (11th Cir.

1997), overruled on other grounds, United States v.

Robison, 505 F.3d 1208, 1215 (11th Cir. 2007) [man-

made storm drainage ditch].

The confusion wrought by the Ninth Circuit’s

decision is not limited to claims involving the Clean

Water Act and municipal stormwater systems. The

very premise of the Ninth Circuit’s opinion — that the

status of a water body as a navigable water may vary

depending upon man-made alterations - has an

impact across the board on claims under the Clean

Water Act since discharge into the navigable waters

is a sine qua non of federal regulation under the Act.

Indeed, the EPA and Army Corps of Engineers derive

their authority under the Act from the status of water

bodies as navigable waters. The Ninth Circuit's

opinion casts doubt on the basic regulatory authority

of these agencies.

2. Review is necessary because the Ninth

Circuit’s decision imposes liability under the Clean

Water Act for a “discharge” of pollutants within a

single body of water, in direct contravention of this

Court’s decision in South Florida Water Management

District v. Miccosukee Tribe of Indians, 541 U.S. 95

(2004). In Miccosukee Tribe, the Court emphasized

that simply transferring water from one portion of a

single body of water into another portion cannot

constitute the “addition” of pollutants for purposes of

the Clean Water Act. Jd. at 107. Nonetheless, here,

the Ninth Circuit has adopted precisely the opposite

view, concluding that water flowing from one chan-

nelized portion of a river into another portion of the

same river constitutes a discharge from a point

source and outfall within the meaning of the Clean

Water Act. The Ninth Circuit’s decision is irreconcil-

able with M.ccosukee Tribe.

3. Review is essential in order to provide clear

guidance to the EPA, state permitting agencies and

regulated municipalities concerning application of the

Clean Water Act to improved portions of navigable

waters of the United States that serve as flood control

systems, and incidentally, municipal separate storm

sewer systems. Although petitioner believes that

under existing case and statutory authority resolu-

tion of the issue should be clear, as the Ninth Cir-

cuit’s opinion underscores, there is confusion about

what transpires when a municipality undertakes

improvements within the course of navigable waters

of the United States.

The confusion created by the Ninth Circuit’s

decision imposes a particularly onerous burden on

petitioner Los Angeles County Flood Control District,

an entity that, as the Ninth Circuit acknowledges,

covers a vast area. It is responsible for safeguarding

from flooding and stormwater damage billions of dol-

lars worth of property and the lives of citizens in the

most populous county in the United States. It does so

by maintaining a flood control system including large

portions of the Los Angeles and San Gabriel Rivers —

rivers that, by necessity, have been subject to man-

made alteration throughout much of their length.

Decisions involving expenditure of tens of millions of

taxpayer dollars and impacting the lives and property

of millions of citizens should not and cannot be based

on speculation about the potential legal ramifications

of engaging in basic flood control.

Moreover, virtually every major metropolitan

area in the country borders a navigable water of the

United States and many are subject to the MS4

permitting requirements. Municipalities across the

country have modified traditional waters through

channelization. By its nature, flood and stormwater

control requires advance planning and a massive

commitment of public funds and resources. It is vital

that local entities be able to assess sooner, rather

than later, potential obligations stemming from ef-

forts to alter adjoining rivers, lakes or streams as

part of basic flood and stormwater control.

In the nearly 25 years since incorporation of the

stormwater permitting requirements in the Clean

Water Act, this Court has never addressed the scope

of these requirements. As the Ninth Circuit’s decision

here underscores, it is essential that the Court now

do so.

I. REVIEW IS WARRANTED BECAUSE THE

NINTH CIRCUIT’S HOLDING THAT MAN-

MADE IMPROVEMENTS TO A NAVIGA-

BLE WATER OF THE UNITED STATES

SUCH AS CHANNELIZATION AS PART OF

FLOOD CONTROL OR A MUNICIPAL

SEPARATE STORM SEWER SYSTEM AL-

TERS ITS STATUS, IS INCONSISTENT

WITH THE PROVISIONS OF THE CLEAN

WATER ACT, THIS COURT’S DECISION

IN RAPANOS V. UNITED STATES AND

THE DECISIONS OF OTHER CIRCUITS.

The Clean Water Act regulates the addition of

pollutants into the waters of the United States. With

respect to stormwater from municipal systems, the

Act provides for the issuance of permits to municipal-

ities on an individual or collective basis concerning

discharge from municipal separate storm sewer

systems — MS4s. 33 U.S.C. §1342(p)(3); 40 C.FR.

§122.26.

The Ninth Circuit held that respondents had

established that petitioner had discharged pollutants

in excess of standards set forth in the Permit, because

exceedances were shown by mass-emissions monitor-

ing stations in portions of the Los Angeles and San

Gabriel Rivers that were maintained by petitioner as

part of its MS4. The court did not find that respon-

dents had shown that outfalls of petitioner’s MS4 into

the rivers upstream of the monitoring stations dis-

charged pollutants exceeding Permit standards into

the Los Angeles and San Gabriel Rivers. (App.41-44.)

Rather, the court concluded that improvements with-

in the rivers could constitute point sources for pur-

poses of a discharge through an outfall:

Because the mass-emissions stations, as the

appropriate locations to measure compliance,

for these two rivers are located in the section

of the MS4 owned and operated by the Dis-

trict, when pollutants were detected, they

had not yet exited the point source into navi-

gable waters. As such, there is no question

over who controlled the polluted stormwater

at the time it was measured or who caused

or contributed to the exceedances when that

water was again discharged to the rivers — in

both cases, the District. As a matter of law

and fact, the MS4 is distinct from the two

navigable rivers; the MS4 is an intrastate

man-made construction — not a naturally oc-

curring Watershed River.

(App.44 (emphasis added).)

The court continued:

The discharge from a point source occurred

when the still-polluted stormwater flowed

out of the concrete channels where the Moni-

toring Stations are located, through an out-

fall, and into the navigable waterways.

(App.45.)

Respondents admitted in the district court that

the monitoring stations in question were located in

the Los Angeles and San Gabriel Rivers, respectively.“

Given Respondents’ admission that the monitoring

stations were located in the rivers, the Ninth Circuit’s

conclusion that these portions of the rivers were

somehow not navigable waters for purposes of the

Clean Water Act was premised solely on its view that

because those portions flow through “man-made”

construction — not a “naturally occurring Watershed

River” — they somehow lost their status as waters of

the United States.

The Ninth Circuit’s reasoning does not withstand

scrutiny. Nothing in the applicable regulatory scheme

suggests that a navigable water loses its character as

such once man-made improvements are made. More-

over, both this Court, and the lower federal courts,

have recognized that man-made alterations to a body

* In their Statement Of Genuine Issues Of Material Fact In

Dispute filed in opposition to defendants’ motion for summary

judgment, plaintiffs admitted that both monitoring stations

were in the rivers. Defendants’ first “uncontroverted” fact stated:

“Plaintiffs allege that rainfall and urban runoff that becomes

collected in the flood control system contain pollutants that are

in excess of ‘water quality standards’ adopted by the Regional

Board. The plaintiffs base their allegations on samples taken at

‘mass emission stations’ located in the Santa Clara River, the Los

Angeles River, the San Gabriel River, and Malibu Creek, and on

samples taken at Surfrider Beach.” (District Court Dkt. 140 at 2,

Fact No. 1 (emphasis added).) Plaintiffs’ response was as follows:

“First sentence: Disputed.... Second sentence: Undisputed.”

(Id.)

of water do not change its character for purposes of

determining whether it is a navigable water under

the Clean Water Act.

A. The Ninth Circuit’s Conclusion That

Man-Made Alterations To A Navigable

Water May Change Its Character For

Purposes Of The Clean Water Act Is

Unsupported By The Act Itself And

Relevant Regulations.

The Clean Water Act regulates the addition of

pollutants to “navigable waters” which is defined by

33 U.S.C. section 1362(7), as meaning “the waters of

the United States, including the territorial seas.” 33

U.S.C. §1362(7). The Act’s implementing regulations

in turn, define “waters of the United States” to mean:

(a) All waters which are currently used,

were used in the past, or may be susceptible

to use in interstate or foreign commerce, in-

cluding all waters which are subject to the

ebb and flow of the tide;

(b) All interstate waters, including inter-

state “wetlands”;

lakes, rivers, streams (including intermittent

streams), mudflats, sandflats, “wetlands,”

sloughs, prairie potholes, west meadows,

playa lakes, or natural ponds the use, degra-

dation, or destruction of which would affect

or could affect interstate or foreign commerce

including any such waters: (1) which are

or could be used by interstate or foreign

travelers for recreational or other purposes;

(2) from which fish or shellfish are or could

be taken and sold in interstate or foreign

commerce; or (3) which are used or could be

used for industrial purposes by industries in

interstate commerce;

(d) All impoundments of waters otherwise

defined as waters of the United States under

this definition;

(e) Tributaries of waters identified in para-

graphs (a) through (d) of this definition;

(f) The territorial sea; and

(g) “Wetlands” adjacent to waters (other

than waters that are themselves wetlands)

identified in paragraph (a) through (f) of this

definition.

40 C.F.R. §122.2.

Although the Ninth Circuit cited this regulation

to support its conclusion that the man-made nature

of the portions of the channels located in the Los

Angeles and San Gabriel Rivers somehow altered the

rivers’ status as navigable waters so there could be a

discharge from the District's MS4 within the meaning

of the Clean Water Act, the language of the regulation

belies that construction. Nowhere in 40 C.F.R. section

122.2 is it stated that a navigable water must be free

of man-made improvements. Indeed, nowhere is there

any reference to a “naturally occurring” body of water.

(Compare 40 C.F.R. §122.2 to App.44.)

The Ninth Circuit cites no case holding or even

suggesting that the status of a body of water as a

navigable water changes depending upon whether it

has been subject to man-made improvements. While

the court cited Headwaters, Inc. v. Talent Irrigation

Dist., 243 F.3d 526, 532 (9th Cir. 2001), nothing in

that decision supports the strained proposition urged

by the Ninth Circuit. In fact, in Headwaters, the

Ninth Circuit found that man-made irrigation canals

were “waters of the United States.” 243 F.3d at 533.

Nor does the fact that the rivers were channel-

ized for flood control purposes somehow alter their

status as navigable waters. The Ninth Circuit sug-

gests that because an MS4 can be a “point source,”

channelizing a portion of a river therefore transforms

that portion of the river from a navigable water into a

point source. (App.42.) This is apparently the basis

for the Court’s conclusion that “[aJs a matter of law

and fact, the MS4 is distinct from the two navigable

rivers... .” (App.44.)

The Ninth Circuit’s analysis does not withstand

scrutiny. To be sure, as the district court recognized,

as both a factual and legal matter it may be difficult

to discern where the rivers leave off and where peti-

tioner’s MS4 begins. In fact the EPA itself recognized

that it might be difficult to draw a clear line between

an MS4 and the navigable waters of the United

States.’ Yet, review of regulations governing MS4s,

particularly in light of the statutory and regulatory

definitions of waters of the United States, utterly

refutes the Ninth Circuit’s suggestion that man-made

improvements to navigable waters transform their

status so as to allow a discharge under the Act.

40 C.F.R. section 122.26(bX8), defines a munici-

pal separate storm sewer system as a public owned

“conveyance or system of conveyances (including

roads with drainage systems, municipal streets, catch

basins, curbs, gutters, ditches, man-made channels,

or storm drains),” “designed or used for collection or

conveying stormwater,” that “discharges to waters of

the United States.” Id. (emphasis added).

Without a doubt, channelization of the Los Angeles

and San Gabriel Rivers was certainly the creation of

a system “designed or used for collecting or conveying

* As the EPA noted in the preamble to the proposed MS4

regulations:

In addition to identifying outfalls from municipal

storm sewer systems for the development of a man-

agement program to reduce pollutants in stormwater

discharges, it is also important to identify the location

of such outfalls to clarify where the storm sewer sys-

tem ends and where waters of the United States

begin. In many situations, waters of the United States

that receive discharges from municipal storm sewers

can be mistakenly considered to be part of the storm

sewer system. Permit applicants should refer to the

regulatory definition of waters of the United States at

40 C.F.R. § 122.2 for appropriate guidance.

53 Fed. Reg. 49453.

stormwater.” 40 C.F.R. §122.26(b\8)(ii). The chan-

nels, however, do not “discharge to waters of the

United States.” 40 C.F.R. §122.26(b\8xXi). 40 C.F.R.

section 122.26(bX9), makes this clear when it defines

“outfall” to mean:

a point source as defined by 40 C.F.R. 122.2

at the point where a municipal separate

storm sewer discharges to waters of the

United States and does not include open con-

veyances connecting two municipal separate

storm sewers, or pipes, tunnels or other con-

veyances which connect segments of the same

stream or other waters of the United States

and are used to convey the waters of the United

States.

40 C.F.R. §122.26(b)(9) (emphasis added).

In short, while petitioner may operate channel-

ized portions of the Los Angeles and San Gabriel

Rivers for flood control, as the applicable regula-

tions indicate, this does not mean that the status of

the rivers as navigable waters of the United States

changed. To the contrary, the regulations make it

clear that simply channeling navigable waters for

flood control is not a “discharge” through an “outfall”

— the rivers retain their status as navigable waters as

they flow through the channels.

Moreover, as noted, the EPA has stated that

the distinctions between MS4s and navigable waters

should be drawn using its regulatory definitions

of the term. 53 Fed. Reg. 49453. As previously

discussed, that definition nowhere states or even

suggests that such waters must be “naturally occur-

ring,” free from man-made improvement. 40 C.F.R.

§122.2.

No authority supports the Ninth Circuit’s conclu-

sion that man-made improvements, such as a con-

crete channel, alter the character of a navigable

water of the United States so as to remove it from the

statutory definition for purposes of the Clean Water

Act.

B. The Ninth Circuit’s Decision Is Incon-

sistent With Rapanos v. United States,

And The Decisions Of Other Federal

Courts.

In Rapanos v. United States, 547 U.S. 715 (2006),

the Court addressed the issue of whether particular

wetlands constituted “waters of the United States”

under the Clean Water Act.

The Court sharply divided on the construction of

the phrase “waters of the United States.” The plurali-

ty concluded that the phrase included only “relatively

permanent, standing or continuous flowing bodies of

water ‘forming geographic features’ that are described

in ordinary parlance as ‘streams[,] ... oceans, rivers,

[and] lakes.’” Jd. at 739. The plurality further found

that the phrase “does not include channels through

which water flows intermittently or ephemerally, or

channels that periodically provide drainage for rain-

fall.” Id.

Justice Kennedy concurred in the judgment, but

rejected the plurality’s rationale. Instead, he concluded

that jurisdiction extends to wetlands that “possess a

‘significant nexus’ to waters that are or were naviga-

ble in fact or that could reasonably be so made.” Jd. at

759. Justice Kennedy found that wetlands would

“possess the requisite nexus” if “either alone or in

combination with similarly situated lands in the

region, [they] significantly affect the chemical, physi-

cal, and biological integrity of other covered waters

more readily understood as ‘navigable.’” Jd. at 780.

Critically, both the plurality and Justice Kennedy

recognized that man-made bodies of water could

constitute “waters of the United States” under the

Act. As the plurality observed, “a permanently flooded

man-made ditch used for navigation is normally

described, not as a ‘ditch,’ but as a ‘canal.’” 547 U.S.

at 736 n.7.

In his concurring opinion, Justice Kennedy in-

voked the Los Angeles River as emblematic of a

“water of the United States” and highlighted the fact

that it was subject to man-made improvements for

virtually all of its length:

The Los Angeles River, for instance, ordi-

narily carries only a trickle of water and of-

ten looks more like a dry roadway than a

river. [Citation.] 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.

Id. at 769.°

The Court’s recognition that “navigable waters of

the United States” necessarily included man-made or

improved water bodies is not surprising. This Court

has found that improved waterbodies are “navigable

waters,” in defining Congress’ regulatory authority

under the Commerce Clause. Kaiser Aetna v. United

States, 444 U.S. 170, 172-73 (1979) [private pond,

dredged and opened to navigable waters, is a naviga-

ble water}. See also, United States v. Appalachian

Electric Power Co., 311 U.S. 377, 407-08 (1940) [error

to determine navigability based on natural conditions

only; a waterway, otherwise suitable for navigation, is

not barred from that classification merely because

artificial aids are required before commercial naviga-

tion may be undertaken].

Moreover, the regulations implementing the

Rivers and Harbors Act, 33 U.S.C. §401 et seg., pro-

vide that artificial channels, even those that are a

“major portion” of a river, can constitute a navigable

water of the United States. 33 C.F.R §329.8(a)1)-(2).

The regulations also provide that a water body which

was “navigable in its natural or improved state ...

retains its character as ‘navigable in law’ even though

* One author has described the Los Angeles River as “51

miles of concrete.” B. Gumprecht, The Los Angeles River: Its Life,

Death, and Possible Rebirth at 51 (1999).

it is not presently used for commerce, or is presently

incapable of such use because of changed conditions

or the presence of obstructions.” 33 C.F.R. §329.9(a).

The lower federal courts have similarly recog-

nized that navigable waters are not limited to unal-

tered “naturally occurring” bodies of water. In United

States v. Eidson, 108 F.3d 1336 (llth Cir. 1997),

overruled on other grounds, United States v. Robison,

505 F.3d 1208, 1215 (llth Cir. 2007), the court held

that a drainage ditch into which the defendant had

discharged industrial wastewater was a “navigable

water” of the United States within the meaning of the

CWA. 108 F.3d at 1339. The court rejected the conten-

tion that because the drainage ditch was man-made,

it could not constitute a water of the United States

for purposes of the Act:

There is no reason to suspect that Congress

intended to regulate only the natural tribu-

taries of navigable waters. Pollutants are

equally harmful to this country’s water qual-

ity whether they travel along man-made or

natural routes. The fact that bodies of water

are “man-made makes no difference....

That the defendants used them to convey the

pollutants without a permit is the matter of

importance.”

108 F.3d at 1342.

Similarly, in United States v. Vierstra, __

F. Supp. 2d __, 2011 WL 1064526 (D.Idaho 2011), the

court held that a man-made canal constituted a water

of the United States because it met both the plurality

standard of Rapanos as well as the “significant nex-

us” requirement of Justice Kennedy’s concurring

opinion. 2011 WL1064526 at *3-*6.

Also, as noted, the Ninth Circuit itself in Head-

waters v. Talent Irrigation, 243 F.3d 526, held that an

irrigation canal fell within the defim:tion of water of

the United States. Similarly, in United States v. Moses,

496 F.3d 984 (9th Cir. 2007), applying Rapanos, the

court held that a man-made creek constituted a water

of the United States for purposes of the Act. 496 F.3d

at 988-91.

It is impossible to square the Ninth Circuit's

conclusion that channelizing the Los Angeles and San

Gabriel Rivers altered their status as waters of the

United States, with the applicable statutory and

regulatory authority, the decision of this Court in

Rapanos, and prior appellate decisions. The Ninth

Circuit’s departure from what had been previously

believed to be established statutory and case author-

ity mandates review by this Court.

C. The Ninth Circuit’s Unprecedented Al-

teration Of The Definition Of What

Constitutes A “Navigable Water Of The

United States” Has Impact Beyond

Regulation Of Stormwater.

The Ninth Circuit’s decision here has a direct im-

pact on the manner in which local entities maintain

MS4s for purposes of regulation under the Clean Water

Act. Nonetheless, because the Act itself addresses the

addition of pollutants to the navigable waters of the

United States from all sources, the impact of the

Ninth Circuit’s opinion goes far beyond regulation of

stormwater.

For example, Headwaters, Moses, Eidson and

Vierstra were all non-stormwater cases but would

likely come out differently if the Ninth Circuit’s newly

invented standard were applied. Moreover, the very

authority of the EPA and the Army Corps of Engi-

neers under the Act itself is derived from the status of

water bodies as navigable waters.

The EPA has the authority to adopt new and

modified water quality standards in “the navigable

waters involved” if water quality standards submit-

ted by a state are not consistent with applicable

requirements of the Act or the Administrator deter-

mines that a revised or new standard is necessary to

meet the Act’s requirements. 33 U.S.C. §1313(c)4).

Further, both the EPA and states with delegated

authority can adopt “total maximum daily loads”

(TMDLs) for navigable waters where effluent limita-

tions are not stringent enough to implement water

quality standards for such waters. 33 U.S.C.

§1313(d).

Likewise, under the Act, the Army Corps of En-

gineers issues permits for the discharge of dredged

or fill material into “navigable waters.” 33 U.S.C.

§1344(a).

If improvements to a traditional navigable ocr

render the improved sections no longer the original

navigable water, EPA authority to adopt new water

quality standards and TMDL programs for those

sections, and the Corps’ authority to require permits

for discharges of dredged and fill material into the

improved channels, is called into question.

The Ninth Circuit’s patently erroneous decision

creates a ripple effect, sowing confusion the entire

breadth of the Clean Water Act. It is essential that

this Court grant review to bring clarity to a standard

that must be applied by local and federal agencies on

a daily basis.

Il. REVIEW IS WARRANTED BECAUSE THE

NINTH CIRCUIT’S HOLDING THAT PETI-

TIONER MAY BE LIABLE FOR DISCHARGES

RESULTING FROM WATERS OF THE LOS

ANGELES AND SAN GABRIEL RIVERS

PASSING THROUGH ITS CHANNELS WITH-

IN THE RIVERS, IS CONTRARY TO SOUTH

FLORIDA WATER MANAGEMENT DISTRICT

V. MICCOSUKEE TRIBE OF INDIANS

WHICH FORECLOSES CLAIMS PREM-

ISED UPON MERE TRANSFERS OF WA-

TER WITHIN A SINGLE BODY OF WATER.

In holding that petitioner was liable for permit

violations based upon waters of the Los Angeles and

San Gabriel Rivers passing through the concrete

channels in the rivers, the Ninth Circuit cited this

Court’s decision in South Florida Water Management

District v. Miccosukee Tribe of Indians, 541 U.S.

95 (2004). The Ninth Circuit noted that it was not

necessary to show that petitioner’s MS4 added pol-

lutants to the rivers, but rather, it was sufficient

that petitioner’s concrete channels within the rivers

transported water containing pollutants that were

then discharged from the channels into lower portions

of the rivers. (App.46-47.)

Yet, while the Ninth Circuit correctly cited Mic-

cosukee Tribe for the proposition that a “discharge of

a pollutant” as defined by 33 U.S.C. section 1362(12),

includes point sources that do not themselves gener-

ate pollutants, the Court flatly ignored the basic

premise of Miccosukee Tribe — that a mere transfer of

water between two points of a single body of water

cannot constitute the “addition of pollutants” to a

navigable water of the United States.

In Miccosukee Tribe, the issue before the Court

was whether the flow of water from a canal into a

reservoir a short distance away required a discharge

permit under the NPDES. 541 U.S. at 98-99. The

lower courts had held that a permit was required,

concluding that the two bodies of water were distinct.

Id. at 96.

Among the issues before this Court was whether

a “point source” needed to be the original source of a

pollutant in order to require a permit for discharging

pollutants into waters of the United States. Id. at

105. The Court rejected the contention, concluding

that “discharge of a pollutant” under 33 U.S.C. sec-

tion 1362(12), “includes within its reach point sources

that do not themselves generate pollutants.” Jd.

However, the Court agreed with the parties, that

if the canal and reservoir were in fact not distinct

bodies of water “but instead are two hydrologically

indistinguishable parts of a single water body,” no

permit would be required. Jd. at 109-10. As the Court

explained:

The Tribe does not dispute that if C-11 and

WCA-3 are simply two parts of the same wa-

ter body, pumping water from one into the

other cannot constitute an “addition” of pol-

lutants. As the Second Circuit put it in

[Catskill Mountains Chapter of] Trout Un-

limited, Inc. {[v. New York,] 273 F.3d 481, 492

(2d Cir. 2001), “‘[iJf 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.’”

Id. at 95, 109-10.

Because the record did not contain enough infor-

mation for the Court to determine whether the canal

and reservoir were a single body of water, or distinct

bodies of water, the Court remanded for further

proceedings. 541 U.S. at 112.

In S.D. Warren Co. v. Maine Board of Environ-

mental Protection, 547 U.S. 370 (2006), the Court

reaffirmed that “[t]he question in Miccosukee was

whether a pump between a canal and an impound-

ment produced a ‘discharge of a pollutant’ within the

meaning of §402 [citation] and the Court accepted the

shared view of the parties that if two identified

volumes of water are ‘simply two parts of the same

water body, pumping water from one into the other

cannot constitute an “addition” of pollutants’. . . .” 547

US. at 381.

Moreover, as previously noted, the federal regula-

tions, consistent with this Court’s view in Miccosukee

Tribe, make it clear that an “outfall” or a “point

source” with respect to an MS4 “does not include open

conveyances connecting to municipal separate storm

sewers, or pipes, tunnels or other conveyances which

connect segments of the same stream or other waters

of the United States and are used to convey waters of

the United States.” 40 C.F.R. §122.26(9) (emphasis

added).

Notwithstanding the Court’s clear statement in

Miccosukee Tribe, the Ninth Circuit’s opinion does not

even address the issue of whether the flow of Los

Angeles and San Gabriel River waters through con-

crete channels and into allegedly “naturally occur-

ring” waters can be squared with Miccosukee Tribe's

clear holding that there can be no discharge for pur-

poses of permit requirements under those circum-

stances. The Ninth Circuit’s silence with respect to

this issue is inexplicable, given that petitioner pointed

out this inconsistency with Miccosukee Tribe in its

petition for rehearing.

The Ninth Circuit’s decision calls into ques-

tion the basic holding of Miccosukee Tribe by finding

that man-made channels or other improvements

within a river that is a navigable water may consti-

tute a “point source” requiring an NPDES permit,

even though the channel merely conveys water from

one portion of the river to another. The result is again

confusion both with respect to how local entities may

operate MS4s and, more generally, how parties are to

assess permit requirements where, at the end of the

day, the point source merely conveys water within a

single water of the United States. For this reason,

too, review is warranted.

Ill. REVIEW IS WARRANTED TO PROVIDE

CLEAR GUIDELINES ON FUNDAMENTAL

PROVISIONS OF THE CLEAN WATER ACT

AND SPECIFIC PROVISIONS CONCERN-

ING REGULATION OF STORMWATER.

The Ninth Circuit’s decision here has thrown con-

fusion into what had been previously settled princi-

ples concerning application of the Clean Water Act.

The Ninth Circuit’s suggestion that only “naturally

occurring” bodies of water may be navigable waters of

the United States and that man-made alterations

somehow transform the status of a body of water, is

contrary to the decisions of both this Court and other

circuit courts, and indeed contrary to prior Ninth

Circuit authority.

Similarly, the Ninth Circuit’s conclusion that

water flowing from the Los Angeles and San Gabriel

Rivers through man-made channels comprising part

of petitioner’s MS4 can nonetheless constitute a dis-

charge from a point source when such waters exit into

“naturally occurring” portion of the rivers, flies in the

face of this Court’s decision in Miccosukee Tribe.

As this Court recognized in intervening in both

Rapanos and Miccosukee Tribe, what constitutes a

navigable water of the United States or the discharge

of a pollutant within the meaning of the Clean Water

Act are fundamental inquiries that require clear

standards as public entities struggle to apply them on

a daily basis. These are ongoing, important questions

that necessarily mandate resolution.

In addition, the Ninth Circuit’s departure from

principles articulated by this Court is compounded by

a lack of clarity with respect to the provisions of the

Clean Water Act as they relate to municipal separate

storm sewer systems. This Court has never addressed

application of the Clean Water Act to MS4s. While

petitioner submits that the resolution of the issues

presented in this case should be controlled by the

Court’s previous constructions of the Act, as the

Ninth Circuit’s decision reflects, there is clearly

confusion in this area. As noted, the EPA itself, in

proposing the initial regulations governing MS4s,

observed that there might be difficulties in determin-

ing where an MS4 ends and navigable waters of the

United States begin. See, supra, text accompanying

note 5.

Municipalities across the United States that oper-

ate MS4s are subject to NPDES permitting require-

ments. Control of flood and stormwater is among the

most vital functions performed by public entities to

safeguard the lives and property of their citizens. Few

functions have a greater potential impact on the over-

all welfare of a community and demand expenditure

of a proportionally large amount of public funds.

The standards governing MS4s affect every

major city in the United States with a separate storm

system. Yet, even if the Ninth Circuit’s decision were

confined to the Los Angeles area, its impact would be

enormous. As the decision acknowledges, the area

served by the Flood Control District is vast, encom-

passing 84 cities and various unincorporated areas

within the County of Los Angeles. (App.6-7.) For basic

public safety, the District, along with other govern-

mental entities, has engaged in substantial modifica-

tion of the Los Angeles and San Gabriel Rivers.’

By necessity, the District must expend substan-

tial time and money in planning and undertaking im-

provements to the flood control system and its op-

erations — decisions that require an understanding of

all potential obligations. Quite simply, a failure to ad-

dress the uncertainty created by the Ninth Circuit’s

” Prior to these extensive man-made alterations, the Los

Angeles River routinely overflowed its banks, resulting in deva-

stating floods and loss of life at regular intervals — in 1884, 1886,

1889, 1914, and 1938. B. Gumprecht, The Los Angeles River: Its

Life, Death, and Possible Rebirth at 158-60, 162-64, 167-68, 215-16.

Climate and geology create the river’s unique potential for devas-

tating flooding. Occasional catastrophic rainfall and close proximity

to steep mountains combine to create particularly fast flowing

water — up to 45 miles per hour during storms. Jd. at 224, 299. It is

known, for good reason, as a “fifty-one mile storm drain.” Jd. at 173.

opinion will have a direct impact on the expenditure

of tens of millions of dollars and decisions concerning

the welfare of millions of citizens within the County

of Los Angeles.

Finally, given the paucity of case law interpreting

the Clean Water Act provisions concerning MS4s, the

Ninth Circuit’s decision will have an unduly negative

impact on municipalities across the country. This is

not an issue that can await further litigation in the

appellate courts — flood control planning must and

does occur on a daily and immediate basis. It is vital

that municipalities know sooner rather than later

what their potential exposure may be in undertaking

their basic duties of flood and stormwater control. It

is essential that this Court grant review.

CONCLUSION

For the foregoing reasons, petitioner submits that

the petition for writ of certiorari should be granted.

Respectfully submitted,

TIMOTHY T. COATES

Counsel of Record

GREINES, MARTIN, STEIN

& RICHLAND LLP

5900 Wilshire Boulevard,

12th Floor

Los Angeles, California 90036

Telephone: (310) 859-7811

Facsimile: (310) 276-5261

ANDREA SHERIDAN ORDIN,

County Counsel

JUDITH A. FRIES,

Principal Deputy

LAURIE E. Dons,

Deputy County Counsel

OFFICE OF Los ANGELES

COUNTY COUNSEL

500 West Temple Street,

Room 653

Los Angeles, California 90012

Telephone: (213) 974-1923

Facsimile: (213) 687-7337

HOWARD GEST

Davip W. BURHENN

BURHENN & Gest LLP

624 South Grand Avenue,

Suite 2200

Los Angeles, California 90017

Telephone: (213) 629-8787

Facsimile: (213) 688-7716

Counsel for Petitioner

Los Angeles County

Flood Control District

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES

DEFENSE COUNCIL, INC.;

SANTA MONICA BAYKEEPER,

Plaintiffs-Appellants,

CouNTY OF Los ANGELES; Los

ANGELES COUNTY FLOOD

CONTROL DISTRICT; MICHAEL

ANTONOVICH, in his official

capacity as Supervisor; YVONNE

BURKE, in her official capacity

as Supervisor; GLORIA MOLINA,

in her official capacity as

Supervisor; ZEV YAROSLAVSKY,

in his official capacity as

Supervisor; DEAN D. EFSTATHIOU,

in his official capacity as Acting

Director of Los Angeles County

Department of Public Works;

Don KNABE, in his official

capacity as Supervisor,

Defendants-Appellees.

No. 10-56017

D.C. No.

2:08-cv-01467-

AHM-PLA

ORDER and

OPINION

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

App. 2

Argued and Submitted

December 10, 2010 — Pasadena, California

Filed July 13, 2011

ORDER

This Court’s Opinion, filed March 10, 2011, and

published at 636 F.3d 1235 (9th Cir. 2011), is with-

drawn and replaced by the attached Opinion.

With this filing, the panel has voted unanimously

to deny Appellees’ petition for panel rehearing. Judge

Pregerson and Judge M. Smith have voted to deny

Appellees’ petition for rehearing en banc, and Judge

Holland so recommends.

The full court has been advised of the Opinion

and petition for rehearing en banc, and no active

judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35.

Accordingly, Appellees’ petition for rehearing or

for rehearing en banc is DENIED.

No further petitions for rehearing or rehearing

en banc will be entertained in this case.

App. 3

OPINION

Before: Harry Pregerson, and

Milan D. Smith, Jr., Circuit Judges, and

H. Russel Holland, Senior District Judge.*

Opinion by Judge Milan D. Smith, Jr.

COUNSEL

Aaron Colangelo, Natural Resources Defense Coun-

cil, Washington, D.C.; Daniel Cooper, Lawyers for

Clean Water, San Francisco, California, for plaintiffs-

appellants Natural Resources Defense Council, Inc.

and Santa Monica Baykeeper.

Andrea Sheridan Ordin, Judith A. Fries, Laurie Dods,

Los Angeles County Department of County Coun-

sel, Los Angeles, California, Howard Gest, David

W. Burhenn, Burhenn & Gest LLP, Los Angeles,

California, for defendants-appellees County of Los

Angeles, et al.

Gregory Thomas Broderick, Downey Brand, LLP,

Sacramento, California, for amicus curiae California

State Association of Counties.

Theresa Ann Dunham, Somach Simmons & Dunn,

Sacramento, California, for amicus curiae California

Stormwater Quality Association.

* The Honorable H. Russe) Holland, Senior United States

District Judge for the District of Alaska, sitting by designation.

App. 4

Kamala D. Harris, Attorney General of California;

Kathleen A. Keneally, Senior Assistant Attorney

General; James R. Potter, Jennifer Novak, Deputy

Attorneys General, Office of the California Attorney

General, Los Angeles, California, for amicus curiae

California Regional Water Quality Control Board, Los

Angeles Region.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants Natural Resources Defense

Council and Santa Monica Baykeeper appeal the dis-

trict court’s grant of summary judgment in favor of

two municipal entities that Plaintiffs allege are dis-

charging polluted stormwater in violation of the

Federal Water Pollution Control Act (the Clean Water

Act, Act, or CWA), 86 Stat. 816, codified as amended

at 33 U.S.C. § 1251 et seg. Plaintiffs contend that

Defendants-Appellees County of Los Angeles (County)

and Los Angeles County Flood Control District (Dis-

trict) are discharging polluted urban stormwater

runoff collected by municipal separate storm sewer

systems (ms4) into navigable waters in Southern

California. The levels of pollutants detected in four

rivers — the Santa Clara River, the Los Angeles River,

the San Gabriel River, and Malibu Creek (collectively,

the Watershed Rivers) — exceed the limits allowed in

a National Pollutant Discharge Elimination System

(NPDES) permit which governs municipal storm-

water discharges in the County. Although all parties

App. 5

agree that numerous water-quality standards have

been exceeded in the Watershed Rivers, Defendants

contend that there is no evidence establishing their

responsibility for, or discharge of, stormwater carry-

ing pollutants to the rivers. The district court agreed

with Defendants and entered a partial final judg-

ment.

We conclude that the district court erred with

respect to the evidence of discharges by the District

into two of the Watershed Rivers — the Los Angeles

River and San Gabriel River. Specifically, Plaintiffs

provided evidence that the monitoring stations for the

Los Angeles and San Gabriel Rivers are located in a

section of ms4 owned and operated by the District

and, after stormwater known to contain standards-

exceeding pollutants passes through these monitoring

stations, this polluted stormwater is discharged into

the two rivers. Accordingly, Plaintiffs were entitled to

summary judgment on the District’s liability for dis-

charges into the Los Angeles River and San Gabriel

River, and therefore we reverse the district court’s

grant of summary judgment in favor of the District on

these claims.

Plaintiffs, however, failed to meet their eviden-

tiary burden with respect to discharges by the Dis-

trict into the Santa Clara River and Malibu Creek.

Plaintiffs did not provide evidence sufficient for the

district court to determine if stormwater discharged

from an ms4 controlled by the District caused or

contributed to pollution exceedances located in these

two rivers. Similarly, Plaintiffs did not delineate how

App. 6

stormwater from ms4s controlled by the County

caused or contributed to exceedances in any of the

Watershed Rivers. Accordingly, we affirm the dis-

trict court’s grant of summary judgment in favor

of the Defendants on these claims.

FACTUAL AND PROCEDURAL BACKGROUND

I. Stormwater Runoff in Los Angeles County

A. The MS4

Stormwater runoff is surface water generated by

precipitation events, such as rainstorms, which flows

over streets, parking lots, commercial sites, and other

developed parcels of land. Whereas natural, vegetat-

ed soil can absorb rainwater and capture pollutants,

paved surfaces and developed land can do neither.

When stormwater flows over urban environs, it col-

lects “suspended metals, sediments, algae-promoting

nutrients (nitrogen and phosphorus), floatable trash,

used motor oil, raw sewage, pesticides, and other

toxic contaminants[.]” Envtl. Def. Ctr, Inc. v. EPA,

344 F.3d 832, 840 (9th Cir. 2003). This runoff is a

major contributor to water pollution in Southern

California rivers and the Pacific Ocean and contrib-

utes to the sickening of many ocean users each year.

The County is a sprawling 4,500 square-mile

amalgam of populous incorporated cities and signifi-

cant swaths of unincorporated land. The District is a

public entity governed by the Los Angeles County

Board of Supervisors and the Department of Public

Works. The District is comprised of 84 cities and some

App. 7

unincorporated areas of the County. The County and

the District are separate legal entities.

In the District, stormwater runoff is collected by

thousands of storm drains located in each munici-

pality and channeled to a storm sewer system. The

municipalities in the District operate ms4s’ to collect

and channe!] stormwater. The County also operates

an ms4 for certain unincorporated areas. Unlike a

sanitary sewer system, which transports municipal

sewage for treatment at a wastewater facility, or

a combined sewer system, which transports sewage

and stormwater for treatment, ms4s contain and

convey only untreated stormwater. See 40 C.F.R.

§ 122.26(aX7), (bX8). In the County, municipal ms4s

Under Federal Regulations, an ms4 is:

@ conveyance or system of conveyances (including

roads with drainage systems, municipal streets, catch

basins, curbs, gutters, ditches, man-made channels, or

storm drains):

(i) Owned or operated by a State, city, town, borough,

county, parish, district, association, or other public

body ... having jurisdiction over disposal of sewage,

industrial wastes, storm water, or other wastes, in-

cluding special districts under State law such as a

sewer district, flood contro! district or drainage dis-

trict, or similar entity ...

(ii) Designed or used for collecting or conveying

storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treat-

ment Works (POTW)....

40 C.F.R. § 122.26(bX8).

App. 8

are “highly interconnected” because the District al-

lows each municipality to connect its storm drains to

the District’s extensive flood-control and storm-sewer

infrastructure (the MS4).? That infrastructure in-

cludes 500 miles of open channels and 2,800 miles

of storm drains. The length of the MS4 system and

the locations of all storm drain connections are not

known exactly because a comprehensive map of the

storm drain system does not exist. While the number

and location of storm drains are too numerous to

catalogue, it is undisputed that the MS4 collects and

channels stormwater runoff from across the County.

That stormwater is channeled in the MS4 to various

watercourses including the four Watershed Rivers at

the heart of this litigation: the Los Angeles River, the

San Gabriel River, the Santa Clara River, and Malibu

Creek. The Watershed Rivers drain into the Pacific

Ocean at Santa Monica Bay, Los Angeles Harbor, and

Long Beach Harbor.

The gravamen of Plaintiffs’ action is that by

allowing untreated and heavily-polluted stormwater

to flow unabated from the MS4 into the Watershed

Rivers, and eventually into the Pacific Ocean, De-

fendants have violated the Clean Water Act.

* Throughout this Opinion, reference is made to both “ms4”

and “the MS4.” The former is a generic reference to municipal

separate storm sewer systems without regard to their particular

location, while the latter specifically refers to the flood control

and storm-sewer infrastructure described supra that exists in

the County and is controlled by the District.

App. 9

B. The Clean Water Act and NPDES Per-

mit

The Clean Water Act is the nation’s primary

water-pollution-control law. The Act’s purpose is “to

restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). “To serve those ends, the Act prohibits ‘the

discharge of any pollutant by any person’ unless done

in compliance with some provision of the Act.” S. Fi.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95, 102 (2004) (quoting 33 U.S.C. § 1311(a)).

“Discharge of a pollutant” is defined as “any addi-

tion of any pollutant to navigable waters from any

point source[.]” 33 U.S.C. § 1362(12); see Comm. to

Save Mokelumne River v. East Bay Mun. Util. Dist.,

13 F.3d 305, 308 (9th Cir. 1993) (characterizing “dis-

charge” as “‘add[ing]’ pollutants from the outside

world to navigable water”).

Under the Clean Water Act, ms4s fall under the

definition of “point sources.” 33 U.S.C. § 1362(14). A

point source is “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.

§ 1362(14).

A person or entity wishing to add pollutants to

navigable waters must comply with the NPDES, which

“requires dischargers to obtain permits that place

App. 10

limits on the type and quantity of pollutants that can

be released into the Nation’s waters.” Miccosukee

Tribe, 541 U.S. at 102; 33 U.S.C. § 1342(a), (p). The

Act “generally prohibits the ‘discharge of any pol-

lutant’ ... from a ‘point source’ into the navigable

waters of the United States’” unless the point source

is covered by an NPDES permit. Defenders of Wild-

life v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999)

(quoting 33 U.S.C. §§ 1311(a), 1362(12)(A)) (emphasis

added); see also Arkansas v. Oklahoma, 503 U.S. 91,

101-02 (1992) (describing NPDES permitting system).

An NPDES permit requires its holder — the “permit-

tee” — to follow the requirements of numerous Clean

Water Act provisions, see 33 U.S.C. § 1842(a), which

include effluent limitations, water-quality standards,

water monitoring obligations, public reporting mech-

anisms, and certain discharge requirements. See id.

§§ 1311, 1312, 1314, 1316, 1317, 1318, 1343.

The Act uses two water-quality-performance

standards, by which a discharger of water may be

evaluated — “effluent limitations” and “water quality

standards.” Arkansas v. Oklahoma, 503 U.S. at 101

(citing 33 U.S.C. §§ 1311, 1313, 1314); see also Sierra

Club v. Union Oil Co. of Calif., 813 F.2d 1480, 1483

(9th Cir. 1987), vacated on other grounds, 485 U.S.

931 (1988), reinstated, 853 F.2d 667 (9th Cir. 1988).

An effluent limitation is “any restriction established

by a State or the [Environmental Protection Agency

(EPA)] Administrator on quantities, rates, and con-

centrations of chemical, physical, biological, and other

constituents which are discharged from point sources

App. 11

into navigable waters... .” 33 U.S.C. § 1362(11). An

effluent-limitation guideline is determined in light of

“‘the best practicable control technology currently

available.’” Union Oil, 813 F.2d at 1483 (quoting 33

U.S.C. § 1311(bX1XA)).

Water-quality standards “are used as a supple-

mentary basis for effluent limitations, so that numer-

ous dischargers, despite their individual compliance

with technology-based limitations, can be regulated

to prevent water quality from falling below accept-

able levels.” Union Oil, 813 F.2d at 1483 (citing

EPA v. Calif. ex rel. State Water Res. Control Bd., 426

U.S. 200, 205 n.12 (1976) (hereafter EPA v. Calif.)).

Water-quality standards are developed in a two-step

process. First, the EPA, or state water authorities

establish a waterway’s “beneficial use.” Natural Res.

Def. Council, Inc. v. EPA, 16 F.3d 1395, 1400 (4th Cir.

1993); see also Cal. Water Code § 13050(f) (“‘Bene-

ficial uses’ of the waters of the state that may be

protected against quality degradation include, but

are not limited to, domestic, municipal, agricultural

and industrial supply; power generation; recreation;

aesthetic enjoyment; navigation; and preservation

and enhancement of fish, wildlife, and other aquatic

resources or preserves.”). Once the beneficial use is

determined, water quality criteria that will yield the

desired water conditions are formulated and imple-

mented. See NRDC v. EPA, 16 F.3d at 1400; see also

33 U.S.C. §1313(a), (cK2MA); 40 C.F.R. § 131.3(i)

(“Water quality standards are provisions of State or

Federal law which consist of a designated use or uses

App. 12

for the waters of the United States and water quality

criteria for such waters based upon such uses.”).

Unlike effluent limitations, which are promul-

gated by the EPA to achieve a certain level of pol-

lution reduction in light of available technology,

water-quality standards emanate from the state

boards charged with managing their domestic water

resources. See Arkansas v. Oklahoma, 503 U.S. at

101. The EPA gives the states guidance in drafting

water-quality standards and “state authorities peri-

odically review water quality standards and secure

the EPA’s approval of any revisions in the standards.”

Id.

The EPA has authorized the State of California to

develop water-quality standards and issue NPDES

permits. Under the Porter-Cologne Water Quality

Control Act, California state law designates the State

Water Resources Control Board and nine regional

boards as the principal state agencies for enforcing

federal and state water pollution law and for issu-

ing permits. See Cal. Water Code §§ 13000, 13001,

13140, 13240, 13370, 13377. Beginning in 1990, the

California State Water Resources Control Board for

the Los Angeles Region (the Regional Board) issued

an NPDES permit (the Permit) to cover stormwater

discharges by the County, the District, and 84 incor-

porated municipalities in the County (collectively the

App. 13

Permittees or Co-Permittees).* See City of Arcadia v.

State Water Res. Control Bd., 119 Cal. Rptr. 3d 232,

240-41 (Cal. Ct. App. 2010). The Permit was renewed

in 1996, 2001, 2006, and 2007.

The Permit is divided into two broad sections:

findings by the Regional Board and an order autho-

rizing and governing the Permittees’ discharges

(Order). The findings cover many introductory and

background subjects, including a history of NPDES

permitting in the County; applicable state and federal

laws governing stormwater discharges; studies con-

ducted by the County and researchers about the del-

eterious effects of polluted stormwater; coverage and

implementation provisions; and guidelines for admin-

istrative review of Permit provisions. The Permit

covers “all areas within the boundaries of the Permit-

tee municipalities ... over which they have regula-

tory jurisdiction as well as unincorporated areas in

Los Angeles County within the jurisdiction of the

Regional Board.” In total, the Permit governs munici-

pal stormwater discharge across more than 3,100

square miles of land in the County.

The Permit relates the many federal and state

regulations governing stormwater discharges to South-

ern California’s watercourses. Among these regula-

tions is the Water Quality Control Plan for the Los

* “Co-permittee means a permittee to a NPDES permit that

is only responsible for permit conditions relating to the dis-

charge for which it is operator.” 40 C.F.R. § 122.26(b\1).

App. 14

Angeles Region (the Basin Plan). Under California

law, the regional boards’ “water quality plans, called

‘basin plans,’ must address the beneficial uses to be

protected as well as water quality objectives, and they

must establish a program of implementation.” City

of Arcadia, 119 Cal. Rptr. 3d at 240 (quoting City

of Burbank v. State Water Res. Control Bd., 108

P.3d 862, 865 (Cal. 2005) (citing Cal. Water Code

§ 13050(j))). The Permit provides that “[t]he Basin

Plan designates beneficial uses of receiving waters

and specifies both narrative and numerical water

quality objectives for the receiving water in Los

Angeles County.” “Receiving waters” are defined as

all surface water bodies in the Los Angeles Region

that are identified in the Basin Plan. Permittees are

to assure that storm water discharges from the MS4

shall neither cause nor contribute to the exceedance

of water quality standards and objectives nor create

conditions of nuisance in the receiving waters, and

that the discharge of non-storm water to the MS4 has

been effectively prohibited. The Permit incorporates

and adopts the Basin Plan, which sets limits on

bacteria and contaminants for the receiving waters

of Southern California. The water-quality standards

limit, among other pollutants, the levels of ammonia,

fecal coliform bacteria, arsenic, mercury, and cyanide

in Southern California’s inland rivers.

The Permit contains myriad prohibitions and con-

ditions regarding discharges into and from the MS4.

Under Part 1, the Permittees are directed to “effec-

tively prohibit non-storm water discharges into the

App. 15

MS4 and watercourses” unless allowed by an NPDES

permit. Under Part 2, titled “Receiving Water Limi-

tations,” “discharges from the MS4 that cause or

contribute to the violation of the Water Quality

Standards or water quality objectives are prohibited.”

The “Water Quality Standards and Water Quality Ob-

jectives” are defined in the Permit as “water quality

criteria contained in the Basin Plan, the California

Ocean Plan, the National Toxics Rule, the California

Toxics Rule, and other state or federal approved

surface water quality plans. Such plans are used by

the Regional Board to regulate all discharges, includ-

ing storm water discharges.”

The Permit, in Part 2.3, provides that Permittees

“shall comply” with the MS4 discharge prohibitions,

set forth in Parts 2.1 and 2.2, “through timely imple-

mentation of control measures and other actions to

reduce pollutants in the discharges in accordance

with [the Los Angeles Stormwater Quality Man-

agement Program (SQMP)] and its components and

other requirements of this Order....” The SQMP

includes “descriptions of programs, collectively devel-

oped by the Permittees in accordance with provisions

of the NPDES Permit, to comply with applicable

federal and state law.” Part 2.3 further provides that

“lilf exceedances of Water Quality Objectives or Water

Quality Standards [] persist, notwithstanding im-

plementation of the SQMP and its components and

other requirements of this permit,” Permittees “shall

assure compliance with discharge prohibitions and

App. 16

receiving water limitations” by engaging in an “itera-

tive process” procedure:

a) Upon a determination by either the Per-

mittee or the Regional] Board that discharges

are causing or contributing to an exceedance

of an applicable Water Quality Standard, the

Permittee shall promptly notify and there-

after submit a Receiving Water Limitations

(RWL) Compliance Report . . . to the Regional

Board that describes [Best Management Prac-

tices (BMPs)] that are currently being im-

plemented and additional BMPs that will be

implemented to prevent or reduce any pollu-

tants that are causing or contributing to the

exceedances of Water Quality Standards.

c) Within 30 days following the approval of

the RWL Compliance Report, the Permittee

shall revise the SQMP and its components

and monitoring program to incorporate the

approved modified BMPs that have been

and will be implemented, an implementa-

tion schedule, and any additional monitoring

required.

d) Implement the revised SQMP and its

components and monitoring program accord-

ing to the approved schedule.

{Part 2.4] So long as the Permittee has com-

plied with the procedures set forth above and

is implementing the revised SQMP and its

components, the Permittee does not have to

repeat the same procedure for continuing or

App. 17

recurring exceedances of the same receiving

water limitations unless directed by the Re-

gional Board to develop additional BMPs.

When a violation arises, a Permittee must adhere to

the procedures in its Compliance Report until the

exceedances abate.

Part 3 of the Permit, titled “Storm Water Quality

Management Program (SQMP) Implementation,” pro-

vides that “[e]ach Permittee shall, at a minimum, im-

plement the SQMP.” Part 3.4.3 requires Permittees

to “implement additional controls, where necessary, to

reduce the discharge of pollutants in storm water to

the [Maximum Extent Practicable (MEP)}.” Part 3.B

requires the implementation of BMPs by the Permit-

tees. Part 3.G specifies that each Permittee is vested

with the “necessary legal authority” to prohibit dis-

charges to the MS4, and the Permittees are directed

to develop storm-water and urban runoff ordinances

for its jurisdiction.

The Permit has both self-monitoring and public-

reporting requirements, which include: (1) monitoring

of “mass emissions” at seven mass emission monitor-

ing stations; (2) Water Column Toxicity Monitoring;

(3) Tributary Monitoring; (4) Shoreline Monitoring;

(5) Trash Monitoring; (6) Estuary Sampling; (7) Bio-

assessment; and (8) Special Studies.

This case concerns high levels of pollutants,

particularly heavy metals and fecal bacteria, identi-

fied by mass-emissions monitoring stations for the

four Watershed Rivers (the Monitoring Stations).

App. 18

Mass-emissions monitoring measures ail constituents

present in water, and the readings give a cumulative

picture of the pollutant load in a waterbody. Accord-

ing to the Permit, the purpose of mass-emissions

monitoring is to (1) estimate the mass emissions from

the MS4, (2) assess trends in the mass emissions

over time, and (3) determine if the MS4 is contrib-

uting to exceedances of Water Quality Standards by

comparing results to the applicable standards in the

Basin Plan. The Permit establishes that the Principal

Permittee, which is the District, shall monitor the

mass-emissions stations. The Permit requires that

mass-emission readings be taken five times per year

for the Watershed Rivers.

The Los Angeles River and San Gabriel River

Monitoring Stations are located in a channelized

portion of the MS4 that is owned and operated by the

District. See Excerpts of Record at 11; see also Dist.

Ct. Docket No. 101: Declaration of Aaron Colangelo

Ex. N: Deposition of Mark Pestrella at 476-78. The

Los Angeles River Monitoring Station is located in

the City of Long Beach in “a concrete lined trapezoi-

dal channel.” The Los Angeles River Monitoring

Station measures “total upstream tributary drainage”

* “Section Two: Site Descriptions,” Los Angeles Cnty. Dept.

of Pub. Works, available at http://dpw.lacounty.gov/wmd/npdes/

9899_report/SiteDesc.pdf (last accessed July 6, 2011); see also

“Section Two: Site Descriptions,” Los Angeles Cnty. Dept. of

Pub. Works, available at http//dpw.lacounty.gov/‘wmd/NPDES/

2006-07_report®5C Section %202.pdf (last accessed July 6, 2011).

App. 19

of 825 square miles, as the Los Angeles River is the

largest watershed outlet in the County. The San

Gabriel River Monitoring Station is located in Pico

Rivera and measures an upstream tributary water-

shed of 450 square miles.

The Malibu Creek Monitoring Station is not

located within a channelized portion of the MS4 but

at an “existing stream gage station” near Malibu

Canyon Road. It measures 105 miles of tributary

watershed. The Santa Clara River Monitoring Station

is located in the City of Santa Clara and measures an

upstream tributary area of 411 square miles.”

C. Water-Quality Exceedances in the Water-

shed Rivers

Between 2002 and 2008, the four Monitoring Sta-

tions identified hundreds of exceedances of the Per-

mit’s water-quality standards. These water-quality

exceedances are not disputed. For instance, monitor-

ing for the Los Angeles and San Gabriel Rivers

showed 140 separate exceedances. These included

high levels of aluminum, copper, cyanide, fecal coli-

form bacteria, and zinc in the rivers. Further, ocean

monitoring at Surfrider Beach showed that there

were 126 separate bacteria exceedances on 79 days,

* “Section Two: Site Descriptions,” Los Angeles Cnty. Dept.

of Pub. Works, available at http://dpw.lacounty.gov/wmd/NPDES/

2006-07_report®5CSection%202.pdf (last accessed July 6, 2011).

App. 20

including 29 days where the fecal coliform bacteria

limit was exceeded.

The District admits that it conveys pollutants via

the MS4, but contends that its infrastructure alone

does not generate or discharge pollutants. According

to Defendants, the District conveys the collective dis-

charges of the numerous “up-sewer” municipalities.

Moreover, Defendants identify thousands of permit-

ted dischargers whose pollutants are reaching the

Watershed Rivers:

(1) Los Angeles River watershed: (a) at

least 1,344 NPDES-permitted industrial and

488 construction stormwater dischargers al-

lowed to discharge during the time period

relevant to the case; (b) three wastewater

treatment plants; and (c) 42 separate incor-

porated cities within the Los Angeles River

watershed discharging into the river up-

stream of the mass emission station.

(2) San Gabriel River watershed: (a) at

least 276 industrial and 232 construction

stormwater dischargers during the relevant

time period; (b) at least 20 other industrial

dischargers that were specifically permitted

to discharge pollutants in excess of the water

quality standards at issue in this action;

(d) 21 separate incorporated cities discharg-

ing into the watershed upstream of the mass

emission station.

App. 21

(3) Santa Clara River watershed: (a) eight

dischargers permitted by industrial waste-

water discharge permits where the limits in

the permit allowed discharges of pollutants

at concentrations higher than the water

quality standards which plaintiffs contend

were exceeded; (b) approximately 26 indus-

trial and 187 construction stormwater dis-

chargers; and (c) the Saugus Wastewater

Reclamation Plant.

(4) Malibu Creek watershed: (a) seven in-

dustrial wastewater dischargers; and (b) at

least five permitted discharges under the

general industrial storm-water permit and at

least 16 construction sites permitted to dis-

charge under the general construction storm-

water permit.

Il. Proceedings before the District Court

Based on data self-reported by Defendants,

Plaintiffs catalogued the water-quality exceedances in

the Watershed Rivers. Beginning on May 31, 2007,

Plaintiffs sent a series of notice letters to Defendants

concerning these exceedances. On March 3, 2008,

based on these purported violations, Plaintiffs com-

menced this citizen-enforcement action. After the

district court dismissed certain elements of Plaintiffs’

initial complaint because notice of the Permit viola-

tions was defective, Plaintiffs sent Defendants an

adequate notice letter on July 3, 2008.

App. 22

Plaintiffs filed the First Amended Complaint

(Complaint) on September 18, 2008. In the Com-

plaint, Plaintiffs assert six causes of action under the

Clean Water Act. Only the first four of Plaintiffs’

claims, which relate to the exceedances in the Water-

shed Rivers, and which the district court designated

the “Watershed Claims,” are before us. The first three

Watershed Claims allege that, beginning in 2002 or

2003, the District and the County caused or contrib-

uted to exceedances of water-quality standards in the

Santa Clara River (Claim 1), the Los Angeles River

(Claim 2), and the San Gabriel River (Claim 3), in

violation of 33 U.S.C. §§ 1311(a), 1342(p). The fourth

Watershed Claim alleges that, beginning in 2002,

Defendants caused or contributed to exceedances of

the water quality standards and violated the Total

Maximum Daily Load (TMDL) limits in Malibu

Creek. Plaintiffs’ four Watershed Claims each rest on

the same premise: (1) the Permit sets water-quality

limits for each of the four rivers; (2) the mass-

emissions stations have recorded exceedances of those

standards; (3) an exceedance is non-compliance with

the Permit and, thereby, the Clean Water Act; and

(4) Defendants, as holders of the Permit and opera-

tors of the MS4, are liable under the Act.

Before the district court, Plaintiffs moved for

partial summary judgment on two of the Watershed

Claims: the Los Angeles River and San Gabriel River

exceedances. Defendants cross-moved for summary

judgment on all four Watershed Claims.

App. 23

In a March 2, 2010 Order, the district court de-

nied each cross-motion for summary judgment on the

Watershed Claims. NRDC v. County of Los Angeles,

No. 08 Civ. 1467 (AHM), 2010 WL 761287 (C.D. Cal.

Mar. 2, 2010), amended on other grounds, 2011 WL

666875 (C.D. Cal. Jan. 27, 2011). Although the dis-

trict court accepted Plaintiffs’ arguments that the

Permit “clearly prohibits ‘discharges from the MS4

that cause or contribute to the violation of Water

Quality Standards or water quality objectives,’” 2010

WL 761287, at *6, and that mass-monitoring stations

“are the proper monitoring locations to determine if

the MS4 is contributing to exceedances [of the Water

Quality Standards or water quality objectives,}” id.,

the district court held that Plaintiffs were attempting

to establish liability without presenting evidence of

who was responsible for the stormwater discharge.

The district court observed that although “the Dis-

trict is responsible for the pollutants in the MS4”

at the time they pass the mass-emissions stations,

“that does not necessarily determine the question of

whether the water passing by these points is a ‘dis-

charge’ within the meaning of the Permit and the

Clean Water Act.” Jd. at *7. Unable to decipher from

the record where the MS4 ended and the Watershed

Rivers begin, or whether any upstream outflows were

contributing stormwater to the MS4, the district

court stated that “Plaintiffs would need to present

some evidence (monitoring data or an admission) that

some amount of a standards-exceeding pollutant is

being discharged though at least one District outlet.”

Id. at *8.

App. 24

Following supplemental briefing, the district

court again determined that “Plaintiffs failed to pre-

sent evidence that the standards-exceeding pollutants

passed through the Defendants’ MS4 outflows at or

near the time the exceedances were observed. Nor did

Plaintiffs provide any evidence that the mass emis-

sions stations themselves are located at or near a

Defendant's outflow.” The district court thereupon

entered summary judgment for Defendants on all

four Watershed Claims.

Under Fed. R. Civ. P. 54(b), the district court

entered a partial final judgment on the Watershed

Claims because they were “factually and legally sev-

erable” from the other claims and “(tJhe parties and

the Court would benefit from appellate resolution of

the central legal question underlying the watershed

claims: what level of proof is necessary to establish

defendants’ liability.” Plaintiffs timely appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.

We review the district court’s grant of summary

judgment in a Clean Water Act enforcement action de

novo. Assoc. to Protect Hammersley, Eld, and Totten

Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1009 (9th

Cir. 2002) (citing Waste Action Project v. Dawn Min-

ing Corp., 137 F.3d 1426, 1428 (9th Cir. 1998)).

App. 25

DISCUSSION

Determining whether the County or the District

violated the Permit’s conditions, and thereby the

Clean Water Act, requires us to examine whether an

exceedance at a mass-emission monitoring station is

a Permit violation, and, if so, whether it is beyond

dispute that Defendants discharged pollutants that

caused or contributed to water-quality exceedances.

I. Whether Exceedances at Mass-Emission

Stations Constitute Permit Violations

“The Clean Water Act regulates the discharge of

pollutants into navigable waters, prohibiting their

discharge unless certain statutory exceptions apply.”

Russian River Watershed Protection Comm. v. City

of Santa Rosa, 142 F.3d 1136, 1138 (9th Cir. 1998)

(citing 33 U.S.C. §1311(a)). One such exception is

for discharges by entities or individuals who hold

NPDES permits. Jd. The NPDES permitting program

is the “centerpiece” of the Clean Water Act and the

primary method for enforcing the effluent and water-

quality standards established by the EPA and state

governments. Am. Iron & Steel Inst. v. EPA, 115 F.3d

979, 990 (D.C. Cir. 1997); see also Nw. Envtl. Advo-

cates v. City of Portland, 56 F.3d 979, 986-90 (9th Cir.

1995) (“Citizen suits to enforce water quality stan-

dards effectuate complementary provisions of the

CWA and the underlying purpose of the statute as

a whole.”); Friends of the Everglades v. S. Fla. Water

Mgmt. Dist., 570 F.3d 1210, 1225 (11th Cir. 2009)

App. 26

(citing Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 156,

175-76 (D.C. Cir. 1982) (“There is indeed some basis

in the legislative history for the position that Con-

gress viewed the NPDES program as its most effec-

tive weapon against pollution.”)).

To decipher the meaning and enforceability of

NPDES permit terms, we interpret the unambiguous

language contained in the permit. Russian River, 142

F.3d at 1141. We review a permit’s provisions and

meaning as we would any contract or legal document.

See Nw. Envtl. Advocates, 56 F.3d at 982. As de-

scribed supra, the Permit prohibits MS4 discharges

into receiving waters that exceed the Water Qual-

ity Standards established in the Basin Plan and

elsewhere. Specifically, Section 2.1 provides: “[D}is-

charges from the MS4 that cause or contribute to the

violation of Water Quality Standards or water quality

objectives are prohibited.” Section 2.2 of the Permit

reads: “Discharges from the MS4 of storm water, or

non-storm water, for which a Permittee is responsible

for, shall not cause or contribute to a condition of

nuisance.”

Nevertheless, Defendants contend that exceedances

observed at mass-emissions stations cannot establish

liability on behalf of any individual Permittee. Their

argument in this respect, as we discuss more thor-

oughly infra, relies heavily on their belief that the

record is bereft of evidence connecting Defendants to

the water-quality exceedances. Defendants also as-

sert that the mass-emissions stations are “neither

designed nor intended” to measure the compliance of

App. 27

any Permittee and, therefore, cannot form the basis

for a Permit violation. Defendants also argue that

municipal compliance with an NPDES stormwater

permit cannot be reviewed under the same regulatory

framework as a private entity or an individual. In

support of this contention, Defendants cite to a 1990

EPA rule:

When enacting this provision, Congress was

aware of the difficulties in regulating dis-

charges from municipal separate storm sew-

ers solely through traditional end-of-pipe

treatment and intended for EPA and NPDES

States to develop permit requirements that

were much broader in nature than require-

ments which are traditionally found in

NPDES permits for industrial process dis-

charges or POTWs. The legislative history

indicates, municipal storm sewer system

“permits will not necessarily be like indus-

trial discharge permits.” Often, an end-of-

the-pipe treatment technology is not appro-

priate for this type of discharge.

Brief of Appellees 33 (quoting “National Pollutant

Discharge Elimination System Permit Application

Regulations for Storm Water Discharges,” 55 Fed.

Reg. 47,990, 48,037-38 (Nov. 16, 1990)).

As we detail infra, neither the statutory devel-

opment of the Clean Water Act nor the plain language

of EPA regulations supports Defendants’ arguments

that NPDES permit violations are less enforceable or

unenforceable in the municipal stormwater context.

In fact, since the inception of the NPDES, Congress

App. 28

has expanded NPDES permitting to bring municipal

dischargers within the Clean Water Act’s coverage.

A. Regulating MS4 Operators

The NPDES permitting program originated in

the 1972 amendments to the Clean Water Act. Pub. L.

92-500, § 2, 86 Stat. 88, reprinted in 1972 U.S.C.C.AN.

3668 (codified as amended at 33 U.S.C. § 1342). At

the time, the NPDES program was viewed “as the

primary means of enforcing the Act’s effluent limita-

tions.” Natural Res. Def. Council v. Costle, 568 F.2d

1369, 1371 (D.C. Cir. 1977); see also Natural Res. Def.

Council, Inc. v. EPA, 966 F.2d 1292, 1295 (9th Cir.

1992) (examining statutory history of 1972 amend-

ments to the Clean Water Act) (hereafter NRDC

v. EPA). The permitting program is codified at Sec-

tion 402 of the Clean Water Act. 33 U.S.C. § 1342. In

1973, the EPA promulgated regulations categorically

exempting “discharges from a number of classes of

point sources ... including. . . separate storm sewers

containing only storm runoff uncontaminated by any

industrial or commercial activity.” Costle, 568 F.2d at

1372 (citing 40 C.F.R. § 125.4 (1975)). The EPA's

exemption of certain point sources, including ms4s,

from Section 402’s blanket requirement was invali-

dated by the United States Court of Appeals for the

District of Columbia Circuit in Costle. Id. at 1376-77.

The Costle court highlighted that “[t]he wording of

the [CWA], legislative history, and precedents are

clear: the EPA Administrator does not have authority

App. 29

to exempt categories of point sources from the permit

requirements of § 402.” Id. at 1377.

In the ten-year period following the Costle deci-

sion, the EPA did not promulgate regulations ad-

dressing discharges by ms4 operators. See NRDC

v. EPA, 966 F.2d at 1296 (citing “National Pollutant

Discharge Elimination System Permit Application

Regulations for Storm Water Discharges; Application

Deadlines,” 56 Fed. Reg. 56,548 (1991)). In 1987, after

continued nonfeasance by the EPA, Congress enacted

the Water Quality Act amendments to the Clean

Water Act to regulate stormwater discharges from,

inter alia, ms4s. See Defenders of Wildlife, 191 F.3d at

1163 (“Ultimately, in 1987, Congress enacted the

Water Quality Act amendments to the CWA.”); NRDC

v. EPA, 966 F.2d at 1296 (“Recognizing both the

environmental threat posed by storm water runoff

and EPA’s problems in implementing regulations,

Congress passed the Water Quality Act of 1987[.]”)

(internal citations omitted); see also 55 Fed. Reg.

47,994 (“[PJermits for discharges from municipal

separate storm sewer systems must require controls

to reduce the discharge of pollutants to the maximum

extent practicable, and where necessary water quali-

ty-based controls, and must include a requirement to

effectively prohibit non-storm water discharges into

the storm sewers. Furthermore, EPA in consultation

with State and local officials must develop a com-

prehensive program to designate and regulate other

storm water discharges to protect water quality.”).

App. 30

The principal effect of the 1987 amendments

was to expand the coverage of Section 402’s permit-

ting requirements. NRDC v. EPA, 966 F.2d at 1296.

Section 402(p) established a “phased and tiered

approach” for NPDES permitting. Nw. Envitl. Def. Ctr.

v. Brown, 640 F.3d 1063, 1081-82 (9th Cir. 2011)

(citing 33 U.S. § 1342(p)). “The purpose of this ap-

proach was to allow EPA and the states to focus their

attention on the most serious problems first.” NRDC

v. EPA, 966 F.2d at 1296. “Phase I” included “five

categories of storm-water discharges,” deemed “the

most significant sources of stormwater pollution,”

who were required to obtain an NPDES permit for

their stormwater discharge by 1990. Brown, 640 F.3d

at 1082 (citing 33 U.S. § 1342(pX2)). The five catego-

ries of the most serious discharge were:

(p) Municipal and industrial stormwater

discharges...

(2)

(A) Adischarge with respect to which a

permit has been issued under this sec-

tion before February 4, 1987.

(B) A discharge associated with indus-

trial activity.

rate storm sewer system serving a popu-

lation of 250,000 or more.

App. 31

(D) A discharge from a municipal sepa-

rate storm sewer system serving a popu-

lation of 100,000 or more but less than

250, 000.

(E) Adischarge for which the Adminis-

trator or the State, as the case may be,

determines that the stormwater dis-

charge contributes to a violation of a wa-

ter quality standard or is a significant

contributor of pollutants to waters of the

United States.

33 U.S.C. § 1342(pX2) (emphases added). Of the five

categories of Phase I dischargers required to obtain

the first permits, two are ms4 operators: municipali-

ties with populations over 250,000, and municipali-

ties with populations between 100,000 and 250,000.

Id. § 1342(pX2XC){(D). Indeed, as noted supra, the

Permit at issue here was first authorized in 1990

pursuant to the 1987 amendments.

Rather than regulate individual sources of run-

off, such as churches, schools and residential prop-

erty (which one Congressman described as a potential

“nightmare”),’ and as regulations prior to 1987 theoret-

ically required, Congress put the NPDES permitting

* See 131 Cong. Rec. 15616, 15657 (Jun. 13, 1985) (State-

ment of Sen. Wallop) (“[The regulations} can be interpreted to

require everyone who has a device to divert, gather, or collect

stormwater runoff and snowmelt to get a permit from EPA as a

point source.... Requiring a permit for these kinds of storm-

water runoff conveyance systems would be an administrative

nightmare.”).

App. 32

requirement at the municipal level to ease the burden

of administering the program. Brown, 640 F.3d at

1085-86. That assumption of municipal control is

found in the Permit at issue here — Part 3.G.2 of the

Permit states that “Permittees shall possess adequate

legal authority to ... [rjequire persons within their

jurisdiction to comply with conditions in Permittee’s

ordinances, permits, contracts, model programs, or

orders (i.e. hold dischargers to its MS4 accountable

for their contributions of pollutants and flows.)[.]”

Defendants’ position that they are subject to a

less rigorous or unenforceable regulatory scheme for

their storm-water discharges cannot be reconciled with

the significant legislative history showing Congress’s

intent to bring ms4 operators under the NPDES-

permitting system. Even the selectively excerpted

regulatory language Defendants present to us — “Con-

gress was aware of the difficulties in regulating

discharges from municipal separate storm sewers...

{and) intended for EPA and NPDES States to develop

permit requirements that were much broader in

nature than requirements which are traditionally

found in NPDES permits” -- does not support Defen-

dants’ view. Indeed, this excerpt is but one paragraph

from a longer section titled, “Site-Specific Storm

Water Quality Management Programs for Municipal

Systems.” 55 Fed. Reg. 48,037-38. The quoted lan-

guage follows a paragraph which reads:

Section 402(pX3 iii) of the CWA mandates

that permits for discharges from municipal

separate storm sewers shall require controls

App. 33

to reduce the discharge of pollutants to the

maximum extent practicable (MEP), includ-

ing management practices, control techniques

and systems, design and engineering meth-

ods, and such other provisions as the Direc-

tor determines appropriate for the control of

such pollutants.

55 Fed. Reg. 48,038 (emphasis added). The use

of such language — employing “mandates” and com-

mands to regulate — hardly supports Defendants’ no-

tion that NPDES permits are unenforceable against

municipalities for their stormwater discharges. More-

over, the paragraphs that follow the excerpt explain

why developing system-wide controls to manage mu-

nicipal stormwater is preferable to controlling pollu-

tion through end-of-pipe effluent technologies. Jd. The

regulations highlight that “Congress recognized that

permit requirements for municipal separate storm

sewer systems should be developed in a flexible man-

ner to allow site-specific permit conditions to reflect

the wide range of impacts that can be associated with

these discharges.” Jd. Rather than evincing any in-

tent to treat permitting “differently” for municipali-

ties, the EPA merely explains why state authorities

that issue permits should draft site-specific rules, as

the Regional Board did here, and why water-quality

standards may be preferable over more-difficult-to-

enforce effluent limitations. Avoiding wooden permit-

ting requirements and granting states flexibility in

setting forth requirements is not equivalent to im-

munizing municipalities for stormwater discharges

that violate the provisions of a permit.

App. 34

B. Enforcement of Mass-Emissions Viola-

tions

Part and parcel with Defendants’ argument that

they are subject to a relaxed regulatory structure is

their view that the Permit’s language indicates that

mass-emissions monitoring is not intended to be en-

forcement mechanism against municipal dischargers.

Defendants claim that measuring water-quality serves

only an hortatory purpose — as Defendants state, “the

mass emission monitoring program ... neither meas-

ures nor was designed to measure any individual

permittee’s compliance with the Permit.” This propo-

sition, which if accepted would emasculate the Per-

mit, is unsupported by either our case law or the

plain language of the Permit conditions.

“The plain language of CWA § 505 authorizes

citizens to enforce all permit conditions.” Nw. Envittl.

Advocates, 56 F.3d at 986 (emphasis in original). We

used these words and emphasized all permit condi-

tions because the language of the Clean Water Act is

clear in its intent to guard against all sources and

superintendents of water pollution and “clearly con-

templates citizen suits to enforce ‘a permit or condi-

tion thereof.’” Jd. (citing 33 U.S.C. § 1365(f2), (fX6));

see also W. Va. Highlands Conservancy, Inc. v. Huff-

man, 625 F.3d 159, 167 (4th Cir. 2010) (“In other

words, the statute takes the water’s point of view:

water is indifferent about who initially polluted it so

long as pollution continues to occur.”).

App. 35

We have previously addressed, and rejected, mu-

nicipal attempts to avoid NPDES permit enforce-

ment. In Northwest Environmental Advocates, we

considered a citizen-suit challenging the City of Port-

land’s operation of a combined sewer system which

periodically overflowed and discharged raw sewage

into two rivers. 56 F.3d at 981-82. The plaintiffs

brought suit on the basis of an NPDES permit condi-

tion which “prohibit{ed] any discharges that would

violate Oregon water quality standards.” Jd. at 985.

Reviewing the history of the 1972 amendments

and the Supreme Court’s decision in PUD No. 1

of Jefferson County v. Washington Department of

Ecology, 511 U.S. 700 (1994), we recognized that

Congress had authorized enforcement of state water-

quality standards, lest municipalities be immunized

on the technicality that not all water standards can

be expressed as effluent limitations. Jd. at 988-89.

The overflows from the Portland sewer system were

“caused primarily by uncontrollable events — i.e., the

amount of stormwater entering the system[.)” Jd. at

989. Because the total amount of water entering and

leaving the sewer system was unknown, it was im-

possible to articulate effluent standards which would

“ensure that the gross amount of pollution discharged

{would] not violate water quality standards.” Jd. Only

by enforcing the water-quality standards them-

selves as the limits could the purpose of the CWA and

the NPDES system be effectuated. Id. at 988-90.

Indeed, we noted that prior to the 1972 incorporation

of effluent limitations, the Clean Water Act depended

entirely on enforcement based on water-quality

App. 36

standards. Jd. at 986. However, troubled by the “‘al-

most total lack of enforcement’” under the old system,

Congress added the effluent limitation standards “not

to supplant the old system” but to “improve enforce-

ment.” Jd. at 986 (quoting S. Rep. No. 414, 92d Cong.,

2d Sess. 2 (1972), reprinted in 1972 U.S.C.C.A.N.

2668, 3671).

Our prior case law emphasizes that NPDES per-

mit enforcement is not scattershot — each permit term

is simply enforced as written. See Union Oil, 813 F.2d

at 1491 (“It is unclear whether the court intended to

excuse these violations under the upset defense or

under a de minimis theory. In either event, the dis-

trict court erred. The Clean Water Act and the regu-

lations promulgated under it make no provision for

‘rare’ violations.”); see also United States v. CPS

Chem. Co., 779 F. Supp. 437, 442 (D. Ark. 1991) (“For

enforcement purposes, a permittee’s [Discharge

Monitoring Reports) constitute admissions regarding

the levels of effluents that the permittee has dis-

charged.”). As we explained in Union Oil, Congress

structured the CWA to function by self-monitoring

and self-reporting of violations to “‘avoid the neces-

sity of lengthy fact finding, investigations, and nego-

tiations at the time of enforcement.’” 813 F.2d at 1492

(quoting S. Rep. No. 414, 92d Cong., 1st Sess. 64,

reprinted in 1972 U.S.C.C.A.N. 3668, 3730). When

self-reported exceedances of an NPDES permit occur,

the Clean Water Act allows citizens to bring suit to

enforce the terms of the Permit.

App. 37

The plain language of the Permit countenances

enforcement of the water-quality standards when

exceedances are detected by the various compliance

mechanisms, including mass-emissions monitoring.

First, the Permit incorporates and adopts the Basin

Plan, which sets the water-quality standards for bac-

teria and contaminants for the receiving waters of

Southern California, including the Watershed Rivers.

The Permit then sets out a multi-part monitoring

program for those standards, the goals of which ex-

plicitly include “[a)ssessing compliance with this

Orderj.])” “Compliance” under the Clean Water Act

primarily means adhering to the terms and condi-

tions of an NPDES permit. EPA v. Calif., 426 U.S. at

223 (“Thus, the principal means of enforcing the

pollution control and abatement provisions of the

Amendments is to enforce compliance with a per-

mit.”). The first monitoring program listed in the

Permit is “Mass Emissions.” While Defendants are

correct to note that mass-emissions monitoring

has as one of its goals “estimat{ing] the mass emis-

sions from the MS4,” Defendants fail to mention that

another goal, listed just below “estimating,” is “[dJe-

termin{ing] if the MS4 is contributing to exceedances

of Water Quality Standards.”

Although Defendants argue that compliance with

other Permit provisions, in particular Part 2.3’s iter-

ative process, forgives violations of the discharge pro-

hibitions in Parts 2.1 and 2.2, no such “safe harbor” is

App. 38

present in this Permit.’ Rather, Part 2.3 first provides

that Permittees shall comply with the Water Quality

Standards “through timely implementation of control

measures and other actions ... in accordance with

the SQMP and its components.” Part 2.3 clarifies that

Parts 2 and 3 of the Permit interact, but it offers no

textual support for the proposition that compliance

with certain provisions shall forgive non-compliance

with the discharge prohibitions. As opposed to absolv-

ing noncompliance or exclusively adopting the MEP

standard, the iterative process ensures that if water

quality exceedances “persist,” despite prior abate-

ment efforts, a process will commence whereby a

responsible Permittee amends its SQMP. Given that

Part 3 of the Permit states that SQMP implementa-

tion is the “minimum” required of each Permittee, the

discharge prohibitions serve as additional require-

ments that operate as enforceable water-quality-

based performance standards required by the Re-

gional Board. See e.g., Bldg. Indus. Ass’n of San Diego

Cnty. v. State Water Res. Control Bd., 22 Cal. Rptr. 3d

128, 141 (Cal. Ct. App. 2004) (rejecting arguments

” We also note, as did the district court, that when the

validity of this Permit was challenged in California state court

by various municipal entities, including the District, the argu-

ment that the Permit’s discharge prohibitions were invalid for

not containing a “safe harbor” was rejected. See In re L.A. Cnty.

Mun. Storm Water Permit Litig., No. BS 080548, at 4-5, 7 (L.A.

Super. Ct. Mar. 24, 2005) (“In sum, the Regional Board acted

within its authority when it included Parts 2.1 and 2.2. in the

Permit without a ‘safe harbor,’ whether or not compliance there-

with requires efforts that exceed the ‘MEP’ standard.”).

App. 39

that “under federal law the ‘maximum extent practi-

cable’ standard is the ‘exclusive’ measure that may

be applied to municipal storm sewer discharges and

[that] a regulatory agency may not require a Munici-

pality to comply with a state water quality standard

if the required controls exceed a ‘maximum extent

practicable’ standard”).

Part 6.D of the Permit, titled “Duty to Comply,”

lays any doubts about municipal compliance to rest:

“Each Permittee must comply with all terms, re-

quirements, and conditions of this Order. Any viola-

tion of this order constitutes a violation of the Clean

Water Act ... and is grounds for enforcement action,

Order termination, Order revocation and reissuance,

denial of an application for reissuance; or a combina-

tion thereof[.]” This unequivocal language is unsur-

prising given that all NPDES permits must include

monitoring provisions ensuring that permit condi-

tions are satisfied. See 33 U.S.C. § 1318(aXA) (“[T]he

Administrator [of the EPA] shall require the owner or

operator of any point source to (i) establish and main-

tain such records, (ii) make such reports, (iii) install,

use, and maintain such monitoring equipment or

methods (including where appropriate, biological mon-

itoring methods), [and] (iv) sample such effluents (in

accordance with such methods, at such locations, at

such intervals, and in such manner as the Adminis-

trator shall prescribe)[.]”); 40 C.F.R. § 122.44(iX1)

(specifying the monitoring requirements for compli-

ance, “mass ... for each pollutant limited in the per-

mit,” and volume of effluent discharged); Ackels v.

App. 40

EPA, 7 F.3d 862, 866 (9th Cir. 1993) (“[TJhe Act grants

EPA broad authority to require NPDES permitees

[sic] to monitor, at such intervals as the Administra-

tor shall prescribe, whenever it is required to carry

out the objectives of the Act.”).

In sum, the Permit’s provisions plainly specify

that the mass-emissions monitoring is intended to

measure compliance and that “[a]ny violation of this

Order” is a Clean Water Act violation. The Permit is

available for public inspection to aid this purpose.

Accordingly, we agree with the district court’s deter-

mination that an exceedance detected through mass-

emissions monitoring is a Permit violation that gives

rise to liability for contributing dischargers.

Ii. Evidence of Discharge

We next turn to the factual issue on which the

district court granted summary judgement in favor of

Defendants — whether any evidence in the record

shows Defendants discharged stormwater that caused

or contributed to water-quality violations. The district

court determined that a factual basis was lacking:

Plaintiffs failed to present evidence that the

standards-exceeding pollutants passed through

the Defendants’ MS4 outflows at or near the

time the exceedances were observed. Nor did

Plaintiffs provide any evidence that the mass

emissions stations themselves are located

at or near a Defendant’s outflow. Plaintiffs

do represent in their supplemental briefing

that their monitoring data reflects sampling

App. 41

conducted at or near Defendants’ outflows... .

However, the declarations on which Plain-

tiffs rely do not clearly indicate that the

sampling in question was conducted at an

outflow (as opposed to in-stream).

In short, Plaintiffs have failed to follow the

Court’s instructions and present data which

could establish that “standards-exceeding pol-

lutants ... passed through Defendants’ MS4

outflows at or near the time the exceedances

were observed.” That the pollutants must

have passed through an outflow is key be-

cause, as the Court found in the March 2

Order, standards-exceeding pollutants must

have passed through a County or District

outflow in order to constitute a discharge

under the Clean Water Act and the Permit.

Plaintiffs have argued throughout this litigation

that the measured exceedances in the Watershed

Rivers ipso facto establish Permit violations by De-

fendants. Because these points are designated in the

Permit for purposes of assessing “compliance,” this

argument is facially appealing. But the Clean Water

Act does not prohibit “undisputed” exceedances; it

prohibits “discharges” that are not in compliance with

the Act, which means in compliance with the NPDES.

See 33 U.S.C. §1311(a); see also Miccosukee Tribe,

541 U.S. at 102. While it may be undisputed that ex-

ceedances have been detected, responsibility for those

exceedances requires proof that some entity dis-

charged a pollutant. Indeed, the Permit specifically

App. 42

states that “discharges from the MS4 that cause or

contribute to the violation of the Water Quality Stan-

dards or water quality objectives are prohibited.”

“(Djischarge of pollutant” is defined as “any ad-

dition of any pollutant to navigable waters from any

point source[.)” 33 U.S.C. §1362(12). Under the

Clean Water Act, the MS4 is a “Point Source.” See

33 U.S.C. § 1342(pX2), 1362(14). “Navigable waters”

is used interchangeably with “waters of the United

States.” See Headwaters, Inc. v. Talent Irrigation

Dist., 243 F.3d 526, 532 (9th Cir. 2001). Those terms

mean, inter alia, “[aJll waters which are currently

used, were used in the past, or may be susceptible to

use in interstate or foreign commerce, including all

waters which are subject to the ebb and flow of the

tide[.]” 40 C.F.R. § 122.2. The Watershed Rivers are

all navigable waters.

Thus, the primary factual dispute between the

parties is whether the evidence shows any addition of

pollutants by Defendants to the Watershed Rivers.

Defendants contend that the “District does not gen-

erate any of the pollutants in the system, but only

transports them from other permitted and non-

permitted sources.” Moreover, Defendants contend

that by measuring mass-emissions downstream from

where the pollutants entered the sewer system, it

is not possible to pinpoint which entity, if any, is

responsible for adding them to the rivers. In the

words of the district court, there is no evidence that

“standards-exceeding pollutants ... passed through

Defendants’ MS4 outflows at or near the time the

App. 43

exceedances were observed.” Plaintiffs counter that

the Monitoring Stations are downstream from hun-

dreds of miles of storm drains which have generated

the pollutants being detected. To Plaintiffs, it is

irrelevant which of the thousands of storm drains

were the source of polluted stormwater — as holders of

the Permit, Defendants bear responsibility for the

detected exceedances.

Resolving this dispute over whether Defendants

added pollutants depends heavily on the level of gen-

erality at which the facts are viewed. At the broadest

level, all sides agree with basic hydrology — upland

water becomes polluted as it runs over urbanized

land and begins a downhill flow, first through munic-

ipal storm drains, then into the MS4 which carries

the water (and everything in it) to the Watershed

Rivers, which flow into the Pacific Ocean. More

narrowly, it is, as Plaintiffs concede, impossible to

identify the particular storm drains that had, for

instance, some fecal bacteria which contributed to a

water-quality violation. Ultimately, each side fails to

rebut the other’s arguments. Defendants ignore their

role as controllers of thousands of miles of MS4

and the stormwater it conveys’ by demanding that

* Defendants’ untenable position about their responsibility

for discharges is confirmed by the testimony of their Rule

30(bX6) witness:

Question: What if those flows [which exceeded water-

quality standards) were so polluted with oi] and

grease that they were on fire as they came out of the

(Continued on following page)

App. 44

Plaintiffs engage in the Sisyphean task of testing par-

ticular storm drains in the County for the source of

each pollutant. Likewise, Plaintiffs did not enlighten

the district court with sufficient evidence for cer-

tain claims and assumed it was obvious to anyone

how stormwater makes its way from a parking lot in

Pasadena into the MS4, through a mass-emissions

station, and then to a Watershed River.

Despite shortcomings in each side’s arguments,

there is evidence in the record showing that polluted

stormwater from the MS4 was added to two of the

Watershed Rivers: the Los Angeles River and San

Gabriel River. Because the mass-emissions stations,

as the appropriate locations to measure compliance,

for these two rivers are located in a section of the

MS4 owned and operated by the District, when pol-

lutants were detected, they had not yet exited the

point source into navigable waters. As such, there is

no question over who controlled the polluted storm-

water at the time it was measured or who caused or

contributed to the exceedances when that water was

again discharged to the rivers — in both cases, the

District. As a matter of law and fact, the MS4 is

distinct from the two navigable rivers; the MS4 is an

intra-state man-made construction — not a naturally

occurring Watershed River. See Headwaters, 243 F.3d

system? Would your view be the same, that the Dis-

trict is not contributing to exceedances?

Answer; That the system the District maintains is

not contributing to, yes.

App. 45

at 533 (“The EPA has interpreted ‘waters of the

United States’ to include ‘intrastate lakes, rivers,

streams (including intermittent streams) ... the use,

degradation, or destruction of which would affect or

could affect interstate or foreign commerce’ and ‘trib-

utaries of [those] waters.’” (quoting 40 C.F.R. § 122.2(c),

(e)). At least some outfalls for the MS4 were down-

stream from the mass-emissions stations. See 40

C.F.R. § 122.26(9) (“Outfall means a point source...

at the point where a municipal separate storm sewer

discharges to waters of the United States. ...”). The

discharge from a point source occurred when the still-

polluted stormwater flowed out of the concrete chan-

nels where the Monitoring Stations are located,

through an outfall, and into the navigable waterways.

We agree with Plaintiffs that the precise location of

each outfall is ultimately irrelevant because there is

no dispute that MS4 eventually adds storm-water to

the Los Angeles and San Gabriel Rivers downstream

from the Monitoring Stations.

Although the District argues that merely chan-

neling pollutants created by other municipalities or

industrial NPDES permittees should not create

liability because the District is not an instrument of

“addition” or “generation,” the Clean Water Act does

* This issue does not usually arise in Clean Water Act liti-

gation because it is generally assumed that ms4s “discharge”

stormwater. See, e.g., Miss. River Revivai v. Adm’r, E.P.A., 107

F. Supp. 2d 1008, 1009 (D. Minn. 2000) (“These lawsuits involve

the discharge of storm water into the Mississippi River through

the Cities’ storm sewers. Thus, and this is not in dispute, the

(Continued on following page)

App. 46

not distinguish between those who add and those who

convey what is added by others — the Act is indiffer-

ent to the originator of water pollution. As Judge

Wilkinson of the Fourth Circuit cogently framed it:

“(The Act] bans ‘the discharge of any pollutant by any

person’ regardless of whether that ‘person’ was the

root cause or merely the current superintendent of the

discharge.” Huffman, 625 F.3d at 167 (emphasis

added). “Point sources” include instruments that chan-

nel water, such as “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. § 1362(14) (emphasis

added). The EPA’s regulations further specify that

ms4 operators require permits for channeling: “Dis-

charge of a pollutant ... includes additions of pollu-

tants into waters of the United States from: surface

runoff which is collected or channelled by man; dis-

charges through pipes, sewers, or other conveyances

owned by a State [or] municipality.” 40 C.F.R. § 122.2

(emphasis added). “[MJost urban runoff is discharged

through conveyances such as separate storm sewers

or other conveyances which are point sources under

the CWA. These discharges are subject to the NPDES

program.” 55 Fed. Reg. 47,991. Finally, the Supreme

Court stated in Miccosukee Tribe that “the definition

of ‘discharge of a pollutant’ contained in § 1362(12)

storm water discharge is subject to the NPDES permitting re-

quirements.”).

App. 47

. includes within its reach point sources that do

not themselves generate pollutants.” 541 U.S. at 105

(emphasis added).

Accordingly, the district court erred in stating

that “Plaintiffs have not provided the Court with the

necessary evidence to establish that the Los Angeles

River and the San Gabriel River below the mass

emissions monitoring stations are bodies of water

that are distinct from the MS4 above these monitor-

ing stations.” In light of the evidence that the Los

Angeles River and San Gabriel River mass-emission

stations are in concrete portions of the MS4 con-

trolled by the District, it is beyond dispute that the

District is discharging pollutants from the MS4 to the

Los Angeles River and San Gabriel River in violation

of the Permit. Thus, Plaintiffs are entitled to sum-

mary judgment on Claims 2 and 3.

However, we agree with the district court that, as

the record is currently constituted, it is not possible

to mete out responsibility for exceedances detected in

the Santa Clara River and Malibu Creek (Claims 1

and 4). Like the district court, we are unable to

identify the relationship between the MS4 and these

mass-emissions stations. From the record, it appears

that both monitoring stations are located within the

rivers themselves. Plaintiffs have not endeavored to

provide the Court with a map or cogent explanation

of the inter-workings or connections of this compli-

cated drainage system. We recognize that both the

Santa Clara and Malibu Creek Monitoring Stations

are downstream from hundreds or thousands of storm

App. 48

drains and MS4 channels. It is highly likely, but on

this record nothing more than assumption, that pol-

luted stormwater exits the MS4 controlled by the

District and the County, and flows downstream in

these rivers past the mass-emissions stations. To

establish a violation, Plaintiffs were obligated to spell

out this process for the district court’s consideration

and to spotlight how the flow of water from an ms4

“contributed” to a water-quality exceedance detected

at the Monitoring Stations. See, e.g., Nicholas Acous-

tics & Specialty Co. v. H & M Constr. Co., 695 F.2d

839, 846-47 (5th Cir. 1983) (“We wish to emphasize

most strongly that it is foolhardy for counsel to rely

on a court to find disputed issues of material fact not

highlighted by counsel’s paperwork; a party that has

suffered the consequences of summary judgment

below has a definite and specific duty to point out the

thwarting facts.... Judges are not ferrets!”). Con-

trary to Plaintiffs’ contention, this would not re-

quire independent sampling of the District’s outfalls.

Indeed, simply ruling out the other contributors of

stormwater to these two rivers or following up to

vague answers given by Defendants’ witnesses could

have satisfied Plaintiffs’ evidentiary obligation. In the

alternative, prior to commencing actions such as this

one, Plaintiffs could heed the district court’s sensible

observation and, for purposes of their evidentiary

burden, “sample from at least one outflow that in-

cluded a standards-exceeding pollutant[.]”

Finally, for all four Watershed Rivers, the record

is silent regarding the path stormwater takes from

App. 49

the unincorporated land controlled by the County to

the Monitoring Stations. The district court correctly

demanded evidence for the County’s liability, which

Plaintiffs did not proffer.

In sum, Plaintiffs were entitled to summary

judgment on Claims 2 and 3 against the District for

the Los Angeles River and San Gabriel River because

(1) the Monitoring Stations for these two rivers are

located in a portion of the MS4 owned and operated

by the District, (2) these Monitoring Stations detected

pollutants in excess of the amount authorized by the

NPDES permit, and (3) this polluted water “dis-

charged” into the Los Angeles River and San Gabriel

River. The Plaintiffs, however, have not met their

burden on summary judgment for their other claims

because they did not provide the district court with

evidence that the MS4 controlled by the District “dis-

charged” pollutants that passed through the Monitor-

ing Stations in the Santa Clara River and Malibu

Creek, or that ms4s controlled by the County “dis-

charged” pollutants that passed through the Monitor-

ing Stations in any of the four rivers in question.

CONCLUSION

The district court’s judgment for Defendant

District on Claims 2 and 3 of the First Amended

Complaint is REVERSED, and this matter is RE-

MANDED to the district court for further proceed-

ings consistent with this opinion. The district court’s

grant of summary judgment for Defendant District

App. 50

on Claims 1 and 4 and for Defendant County on all

Watershed Claims is AFFIRMED.

AFFIRMED IN PART, REVERSED IN PART,

and REMANDED.

Each side shall bear its own costs.

App. 51

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES

DEFENSE COUNCIL, INC.;

SANTA MONICA BAYKEEPER,

Plaintiffs-Appellants,

CouNTY OF Los ANGELES; Los

ANGELES COUNTY FLOOD

CONTROL DistTRICT; MICHAEL

ANTONOVICH, in his official

capacity as Supervisor; YVONNE

BuRKE, in her official capacity

as Supervisor; GLORIA MOLINA,

in her official capacity as

Supervisor; ZEV YAROSLAVSKY,

in his official capacity as

Supervisor; DEAN D. EFSTATHIOU,

in his official capacity as Acting

Director of Los Angeles County

Department of Public Works;

Don KNaABE, in his official

capacity as Supervisor,

Defendants-Appellees.

No. 10-56017

D.C. No.

2:08-cv-01467-

AHM-PLA

OPINION

Appeal from the United States District Court

for the Central District of California

Howard Matz, District Judge, Presiding

App. 52

Argued and Submitted

December 10, 2010 — Pasadena, California

Filed March 10, 2011

Before: Harry Pregerson, and

Milan D. Smith, Jr., Circuit Judges, and

H. Russel Holland, Senior District Judge.*

Opinion by Judge Milan D. Smith, Jr.

COUNSEL

Aaron Colangelo, Esquire, Natural Resources Defense

Council, Washington, D.C.; Daniel Cooper, Esquire,

Lawyers for Clean Water, San Francisco, California,

for plaintiffs-appellants Natural Resources Defense

Council, Inc. and Santa Monica Baykeeper.

Andrea Sheridan Ordin, Esquire, Judith A. Fries,

Esquire, Laurie Dods, Esquire, Los Angeles County

Department of County Counsel, Los Angeles, Califor-

nia; Howard Gest, Esq., David W. Burhenn, Esq.,

Burhenn & Gest LLP, Los Angeles, California, for

defendants-appellees County of Los Angeles, et al.

* The Honorable H. Russel Holland, Senior United States

District Judge for the District of Alaska, sitting by designation.

App. 53

OPINION

M. SMITH, Circuit Judge.

Plaintiffs-Appellants Natural Resources Defense

Council and Santa Monica Baykeeper appeal the dis-

trict court’s grant of summary judgment in favor of

two municipal entities that Plaintiffs allege are dis-

charging polluted stormwater in violation of the Fed-

eral Water Pollution Control Act (the Clean Water

Act, Act, or CWA), 86 Stat. 816, codified as amended

at 33 U.S.C. § 1251 et seg. Plaintiffs contend that

Defendants-Appellees County of Los Angeles (County)

and Los Angeles County Flood Control District (Dis-

trict) are discharging polluted urban stormwater

runoff collected by municipal separate storm sewer

systems (ms4) into navigable waters in Southern

California. The levels of pollutants detected in four

rivers — the Santa Clara River, the Los Angeles River,

the San Gabriel River, and Malibu Creek (collectively,

the Watershed Rivers) — exceed the limits allowed in

a National Pollutant Discharge Elimination System

(NPDES) permit which governs municipal storm-

water discharges in the County. Although all parties

agree that numerous water-quality standards have

been exceeded in the Watershed Rivers, Defendants

contend that there is no evidence establishing their

responsibility for, or discharge of, stormwater carry-

ing pollutants to the rivers. The district court agreed

with Defendants and entered a partial final judg-

ment.

App. 54

We conclude that the district court erred with

respect to the evidence of discharges by the District

into two of the Watershed Rivers — the Los Angeles

River and San Gabriel River. Specifically, Plaintiffs

provided evidence that the monitoring stations for the

Los Angeles and San Gabriel Rivers are located in a

section of ms4 owned and operated by the District

and, after stormwater known to contain standards-

exceeding pollutants passes through these monitoring

stations, this polluted stormwater is discharged into

the two rivers. Accordingly, Plaintiffs were entitled to

summary judgment on the District’s liability for dis-

charges into the Los Angeles River and San Gabriel

River, and therefore we reverse the district court’s

grant of summary judgment in favor of the District on

these claims.

Plaintiffs, however, failed to meet their eviden-

tiary burden with respect to discharges by the Dis-

trict into the Santa Clara River and Malibu Creek.

Plaintiffs did not provide evidence sufficient for the

district court to determine if stormwater discharged

from an ms4 controlled by the District caused or

contributed to pollution exceedances located in these

two rivers. Similarly, Plaintiffs did not delineate how

stormwater from ms4s controlled by the County

caused or contributed to exceedances in any of the

Watershed Rivers. Accordingly, we affirm the district

court’s grant of summary judgment in favor of the

Defendants on these claims.

App. 55

FACTUAL AND PROCEDURAL BACKGROUND

I. Stormwater Runoff in Los Angeles County

A. The MS4

Stormwater runoff is surface water generated by

precipitation events, such as rainstorms, which flows

over streets, parking lots, commercial sites, and other

developed parcels of land. Whereas natural, vegetated

soil can absorb rainwater and capture pollutants,

paved surfaces and developed land can do neither.

When stormwater flows over urban environs, it col-

lects “suspended metals, sediments, algae-promoting

nutrients (nitrogen and phosphorus), floatable trash,

used motor oil, raw sewage, pesticides, and other

toxic contaminants[.]” Envtl. Def. Ctr., Inc. v. EPA,

344 F.3d 832, 840 (9th Cir. 2003). This runoff is a

major contributor to water pollution in Southern

California rivers and the Pacific Ocean and contrib-

utes to the sickening of many ocean users each year.

The County is a sprawling 4,500 square-mile

amalgam of populous incorporated cities and signifi-

cant swaths of unincorporated land. The District is a

public entity governed by the Los Angeles County

Board of Supervisors and the Department of Public

Works. The District is comprised of 84 cities and some

unincorporated areas of the County. The County and

the District are separate legal entities.

App. 56

In the District, stormwater runoff is collected by

thousands of storm drains located in each munici-

pality and channeled to a storm sewer system. The

municipalities in the District operate ms4s' to collect

and channe) stormwater. The County also operates

an ms4 for certain unincorporated areas. Unlike a

sanitary sewer system, which transports municipal

sewage for treatment at a wastewater facility, or a

combined sewer system, which transports sewage

and stormwater for treatment, ms4s contain and

convey only untreated stormwater. See 40 C.F.R.

§ 122.26(aX7), (bX8). In the County, municipal ms4s

are “highly interconnected” because the District al-

lows each municipality to connect its storm drains to

’ Under Federal Regulations, an msé4 is:

a conveyance or system of conveyances (including

roads with drainage systems, municipal streets, catch

basins, curbs, gutters, ditches, man-made channels, or

storm drains):

(i) Owned or operated by a State, city, town, borough,

county, parish, district, association, or other public

body ... having jurisdiction over disposal of sewage,

industrial wastes, storm water, or other wastes, in-

cluding special districts under State law such as a

sewer district, flood control district or draina

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