The Real Estate & Environmental Law Blog Focusing on legal trends in data security, cloud computing, data privacy, and anything E

Garland Court Holds that Discharge into ditch/swale that Drain to Waters of the United States Sufficient to Trigger Clean Water Violation

Posted in Environmental and Land Use, Water Law, Water Quality

Garland v. Central Valley Regional Water Control Board, (3rd Dist. 12 C.D.O.S. 12051 filed Oct. 24, 2012)  involves the question of whether the discharge of storm water with sediment from a residential construction site constitutes a violation under the federal Clean Water Act.  The main issue was whether the adjacent ephemeral drainages encompassing swales, ditches, and culverts that eventually connected to waters of the United States was sufficient to trigger Clean Water Act violations. The Court found liability under the alernative theory plead by the Central Valley Regional Board that the contamination was indirectly discharged to waters of the United States based on language in the Rapanos case (Rapanos v. U.S. 547 U.S. 715 (2006)) in which the Supreme Court found that discharges into intermittent channels of a pollutant that naturally washes downstream likely violates the section even if it is not a direct discharge. The Court then differentiates the point source from the body to which the pollutant is discharged. The Court also found that the discharger did not respond to these arguments in their briefs.