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Thursday, December 6, 2012
Supreme Court hears runoff case

By Keith Hamm
ESPN.com

A "beach closed" sign warns against contaminated water due to rain runoff before the dedication ceremony for the iconic Malibu Surfrider Beach to become the first "World Surfing Reserve" (WSR), in Malibu on Oct. 9, 2010.

With the health of surfers and other beachgoers hanging in the balance, the U.S. Supreme Court on Tuesday contemplated the problem of polluted rainwater runoff in Los Angeles County and who's responsible for cleaning it up.

The case pits co-plaintiffs Natural Resources Defense Council (NRDC) and Los Angeles Waterkeeper against the Los Angeles County Flood Control District.

Overseeing roughly 4,000 square miles, the district owns and operates thousands of miles of storm drains throughout the nation's most populated county.

During storms, this infrastructure drains billions of gallons of rainwater from sidewalks and streets into the Los Angeles and San Gabriel rivers, which lead to the Pacific Ocean.

Along the way, the runoff picks up pollutants, including "high levels of aluminum, copper, cyanide, fecal coliform bacteria and zinc," according to court documents. "[Last year] an ocean monitoring station at Surfrider Beach showed there were 126 separate bacteria exceedances ... including 29 days where the fecal coliform bacteria limit was exceeded."

"[Runoff] is the largest source of water pollution in Southern California," Steve Fleischli, the NRDC's water program director, told ESPN.com on Tuesday. "People who use and enjoy these resources, or who would like to use and enjoy them, are impacted by [this water pollution] because it puts their health at risk."

In 2008, the NRDC and LA Waterkeeper sued the Flood Control District, claiming it violated a permit that prohibits the district from exceeding water-pollution standards set forth by the Clean Water Act. In 2010, a federal judge rejected the suit, saying the exact source of the pollution couldn't be pinpointed. Last year, however, the 9th Circuit appellate court held the county liable, reasoning that runoff flowing by a county monitoring station was discharging pollution into the ocean.

On Tuesday, Chief Justice John G. Roberts Jr. expressed similar sentiment.

"You don't question that there was an actual discharge [of pollutants]," he said to representatives of the Flood Control District. "What is it monitoring if not discharges ... for which you're responsible?"

Representing the district, attorney Timothy Coates argued that the monitoring stations do indeed indicate a pollution problem, but, again, they fail to pinpoint its source.

This ambiguity could be the key to freeing Los Angeles County from any liability. Alternatively, the justices could send the case back to California for further hearings.

As Southern California's rainy season picks up through winter and into spring, the Supreme Court is expected to hand down its decision by June 2013 at the latest.

While the NRDC has argued this case before the nation's highest court, it has also tackled the problem at a grassroots level. At its website, the environmental group presents a number of strategies for capturing rainwater before it drains to the ocean, from rain barrels and rooftop gardens to xeriscaped swales and permeable pavements. The site also lists a number of case studies of cities across the country successfully dealing with the very same problem.

"Los Angeles has had such poor planning around water-quality issues for decades," Fleischli says. "We need to move forward more intently. Instead of treating [runoff] as waste, [we need to] treat it as a resource."