ELR Citation: 43 ELR 20180
No(s). 10-56017 (9th CIr. Aug 8, 2013)

The Ninth Circuit, on remand from the U.S. Supreme Court, held that pollution exceedances detected at monitoring stations in Los Angeles County were sufficient to establish the county's liability for NPDES permit violations under the CWA. In Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, 43 ELR 20004 (2013), the Supreme Court held that a discharge of pollutants does not occur when polluted water flows from one portion of a river that is a navigable water of the United States, through a concrete channel or other engineered improvement in the river, and then into a lower portion of the same river. But the Court declined to address the plaintiffs' argument that the county defendants' monitoring data established their liability for permit violations as a matter of law. On remand, the Ninth Circuit held that under the plain language of the NPDES permit, the data collected at the monitoring stations were intended to determine whether the permittees were in compliance with the permit. Accordingly, if the monitoring data showed that the level of pollutants in federally protected water bodies exceeded those allowed under the permit, then, as a matter of permit construction, the monitoring data conclusively demonstrated that the county was not in compliance with the permit conditions and was liable for permit violations. The court therefore remanded the case to the district court for further proceedings, including a determination of the proper remedy.