Fourth Circuit Joins Ninth Circuit in Expanding Clean Water Act Jurisdiction Over Discharges to Navigable Waters Conveyed Through Groundwater
By Sarah Bell, David Lazerwitz and Brian Wantz
Unpermitted point source discharges that reach navigable waters indirectly, via groundwater, may lead to Clean Water Act (CWA) liability according to the Fourth Circuit Court of Appeals (encompassing Maryland, Virginia, North Carolina, South Carolina and West Virginia).
The decision in Upstate Forever v. Kinder Morgan, Case No. 17-1640 (4th Cir. Apr. 12, 2018), analyzed two issues: (1) whether a pipeline spill constitutes an “ongoing violation” where the pipeline has been repaired but the released pollutants continue to migrate to navigable waters; and (2) whether a discharge of pollutants that reaches navigable waters via groundwater can support liability under the CWA. On both issues, the court answered “yes.”
The decision in Upstate Forever largely follows the recent Ninth Circuit decision in Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), see “Ninth Circuit Ruling Expands Clean Water Act Jurisdiction Over Groundwater Discharges.” Together, these cases constitute a significant expansion of CWA jurisdiction and liability. Now, companies face potential CWA liability—or the specter of procuring a CWA permit under the National Pollutant Discharge Elimination System (NPDES)—for direct and indirect discharges to groundwater, including those from spills, leaks, surface impoundments, and leaking USTs.
Upstate Forever arose following a 2014 underground pipeline spill in Anderson County, South Carolina that allegedly resulted in the release of over 369,000 gallons of gasoline. While the pipeline was swiftly repaired, two environmental interest groups filed a CWA citizen suit over perceived delays in the recovery and remediation process, alleging that the unrecovered petroleum products continued to seep into nearby navigable waters.
Defendants moved to dismiss for lack of jurisdiction, arguing under Gwaltney v. Chesapeake Bay Found., 484 U.S. 49 (1987) that the CWA authorizes citizen suits only for continuous or ongoing intermittent violations, and the pipeline had long since been repaired. The motion was granted by the trial court, but on appeal the Fourth Circuit disagreed, holding that the CWA does not require that the point source continue to release a pollutant—only that the discharge from the point source continue to release a pollutant. Slip Op. at *14-16. The court then proceeded to address whether plaintiffs stated a cognizable claim under the CWA. The Fourth Circuit, following and relying on the Ninth Circuit’s Hawai’i Wildlife decision, held that indirect discharges to navigable waters via groundwater can lead to CWA liability.
The Fourth Circuit relied on a slightly different standard in analyzing the link between the groundwater and navigable water (though it admitted there was “no functional difference” between the standards). Whereas the Ninth Circuit in Hawai’i Wildlife considered whether pollutants were “fairly traceable” from the point source through groundwater to navigable water, the Fourth Circuit in Upstate Forever determined that the CWA requires “a direct hydrological connection” between ground water and navigable waters in order to state a claim under the CWA for an indirect discharge. Slip Op. at *24. On this basis, the Fourth Circuit concluded that plaintiffs had stated a cognizable claim, and remanded to the trial court for further proceedings.
What the Ruling Means
Together, Hawai’i Wildlife Fund, Upstate Forever, and recent EPA rulemaking on the definition of “waters of the United States” suggest a significant expansion of CWA liability and potential permitting requirements for the regulated community. These authorities mean that industry and individuals need to carefully consider discharges to land or groundwater that could potentially reach navigable waters and evaluate whether CWA permitting is required, in addition to other potentially applicable federal and state permits. Moreover, as cautioned by Upstate Forever, where accidental spills and leaks are concerned, companies and environmental managers will need to consider ongoing migration of contaminants through groundwater well after the cause of discharges may have been resolved.