Today’s decision in the Los Angeles County case is a quick read. So quick, I thought I was just reading the syllabus. Still looking for an explanation of exactly how the Ninth Circuit decision “cannot be squared” with the rule of the Miccosukkee case that a downstream flow cannot be a “discharge of a pollutant” triggering the NPDES permitting requirement. Just as everyone on the case agreed that downstream flows don’t trigger the permit requirement, everyone also agreed that the County did require a permit. The Ninth Circuit had simply enforced the permit. Several briefs tried to explain this to the Court (including an amicus brief filed by the Pace Environmental Litigation Clinic on behalf of sportsmen’s groups).
Of course, our infallible Supreme Court could not possibly have granted cert on a question not really presented by the case, could it?