On January 8, 2013, the U.S. Supreme Court unanimously upheld its 2004 ruling that the movement of polluted water between separate sections of the same waterbody does not constitute a “discharge” of pollutants requiring a permit under the Clean Water Act. In Los Angeles County Flood Control District v. NRDC, No. 11-460 (Jan. 8, 2013), the Justices addressed only the discharge issue on which they had granted review, declining to consider broader questions relating to the interpretation of CWA permit terms and the validity of the Environmental Protection Agency’s contentious “water transfer rule.” Accordingly, while permittees may take comfort in the Court’s reiteration of existing law, they also must be mindful that decisions on these other important issues likely lie just over the horizon.
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