By: Kevin M. McGuire
“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)
The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a). Although the definition of what constitutes navigable water has been the subject of much debate, case law, and regulatory efforts, see, e.g., Rapanos v. United States, 547 U.S. 715 (2006) (plurality opinion), groundwater itself has not been regulated under the CWA. As such, the CWA does not prohibit an unpermitted groundwater discharge. Courts have struggled, however, with situations where groundwater has a discernable connection to jurisdictional surface waters.
In a recent case of first impression in the circuit, a divided panel of the Fourth Circuit joined the Ninth Circuit in holding that a groundwater connection between a point source and a navigable water may trigger CWA coverage. Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, Slip Op. (4th Cir. April 12, 2018). Writing for the majority, Judge Barbara Milano Keenan held that the CWA regulates point source discharges that eventually reach navigable waters when the discharges are “sufficiently connected to navigable waters” and the “connection” between the point source and navigable water is “clear.” Upstate Forever, Slip Op. at 19-23.
In Upstart Forever, environmental groups brought a CWA citizen suit alleging an underground pipeline owned by a Kinder Morgan Energy Partners subsidiary had ruptured in late 2014 and leaked over 369,000 gallons of gasoline into the soil and groundwater. Despite remedial efforts performed by Kinder Morgan under the guidance of South Carolina’s Department of Health and Environmental Control, plaintiffs alleged that at least 160,000 gallons remained unrecovered and were seeping into tributaries of the Savannah River and adjacent wetlands. Kinder Morgan did not challenge plaintiffs’ allegation that these waters, some of which were less than 1,000 feet from the pipeline fracture, constitute navigable waters under the CWA.
The district court dismissed the citizen suit for failure to state a claim, reasoning that “the CWA did not encompass movement of pollutants through groundwater that is hydrologically connected to navigable waters.” Upstate Forever, Slip Op. at 11. In addition, because the repaired pipeline was no longer leaking, the district court concluded the violation was “wholly past” and there was no “ongoing violation” as required for CWA citizen suit jurisdiction. Id.
On appeal, the Fourth Circuit framed the issue as “whether citizens may bring suit alleging a violation of the CWA when the source of the pollution, the pipeline, is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance through the earth via groundwater and is being discharged into surface waterways.” Upstate Forever, Slip Op. at 4.
Before analyzing the scope of the CWA’s regulatory reach, however, the Fourth Circuit acknowledged that it must first find an “ongoing violation” to have CWA citizens suit jurisdiction. Upstate Forever, Slip Op. at 13 citing Gwaltney of Smithfield, LTD v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987). Should it have jurisdiction, the Court would look for a “sufficient nexus between the course of the pollution and the navigable waters” to trigger liability under the CWA. Id.
The plaintiffs argued that a claim for a discharge of a pollutant in violation of the CWA need not allege that the pollutant is being discharged directly from the point source into navigable waters. Kinder Morgan countered that the district court did not err because the violation “ceased once the pipeline was repaired.” Kinder Morgan also claimed that if seepage was occurring, the pollution was seeping from nonpoint sources, namely, from natural formations at the spill site.
Rejecting the need for a direct discharge from the point source to navigable water, the Majority focused instead on whether the pollutants “derive” from a point source and continue to be “added” to navigable waters. Upstate Forever, Slip Op. at 16-17. Under this interpretation, neither the repair of the point source nor the indirect flow of the pollutants was fatal to jurisdiction.
Canvassing the major cases addressing the “continuous,” “ongoing,” and “susceptible to remediation” preconditions to CWA citizen suit jurisdiction, the Majority concluded that the only “precondition for alleging a cognizable discharge of a pollutant” is an ongoing “addition” to navigable waters “originating” from a point source. Upstate Forever, Slip Op. at 14-19, citing Gwaltney of Smithfield, LTD v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987); Steel Co. Citizens for a Better Env’t, 523 U.S. 83 (1998); Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981).
The Majority noted the absence of any “temporal conditions” on point source discharge activity or requirements for a “direct connection” from the point source to navigable waters. Moreover, nothing in the CWA indicated that a time “delay” between the discharge from the point source and the addition to navigable water negated an “ongoing” violation so long as pollutants continue to be “added” to navigable waters. Upstate Forever, Slip Op. at 17, citing Hawaii Wildlife Fund v. City of Maui, No. 15-17447, 2018 WL 1569313, at *7-*8 (9th Cir. Feb. 1, 2018).
In conclusion, based on the CWA’s definition of “discharge” – which means “any addition of pollutants to navigable water from a point source” – the Majority reasoned that ongoing seepage of gasoline was continuing to “add” pollutants to jurisdictional water. And because those pollutants were “from a point source” – that is, they originated from the pipeline – there was a continuing and ongoing discharge in violation of the CWA. Upstate Forever, Slip Op. at 14-19.
Turning to the substantive question “of first impression” in the circuit, the Majority borrowed heavily from Justice Scalia’s opinion in Rapanos v. United States, 547 U.S. 715 (2006) (plurality opinion), to dispense with any requirement that the point source discharge must be “direct” to the navigable water:
[t]he Act does not forbid the addition of any pollutant directly to navigable waters from any point source, but rather the addition of any pollutant to navigable waters.
Upstate Forever, Slip Op. at 20, citing Rapanos at 743 (emphasis in original).
Shifting attention to the point source, but employing similar reasoning, the Majority continued:
Just as the CWA’s definition of a discharge of a pollutant does not require a discharge directly to navigable waters, Rapanos, 547 U.S. at 743, neither does the Act require a discharge directly from a point source, see 33 U.S.C. § 1362(12)(A).
Upstate Forever, Slip Op. at 21.
Relying heavily on EPA’s prior regulatory development of the term “direct hydrological connection” to navigable waters through groundwater, the Majority explained the required nexus between the point source and navigable waters:
Plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant passes through ground water.
Upstate Forever, Slip Op. at 24.
The Majority addressed this “necessarily” “fact-specific” determination by noting the “extremely short distance” between the original pipeline rupture and the site where seepage is occurring and the “undisputed fact” that the ruptured pipeline caused the pollution at issue in the case. Upstate Forever, Slip Op. at 24. The Majority noted with approval the similarity between its connection test and the test recently applied by the Ninth Circuit.
Additionally, the plaintiffs have alleged traceable discharge from the ruptured pipeline. The traceability of a pollutant in measurable quantities is an important factor in the determination whether a particular discharge is covered by the CWA. See Hawaii Wildlife Fund, 2018 WL 1569313, at *8 (holding that claim for indirect discharge must show that pollutant is “fairly traceable” to the point source).
Upstate Forever, Slip Op. at 25.
In the final analysis, it appears that the Majority’s concern with the ongoing contamination of the navigable waters coupled with the clear connection to the pipeline rupture carried the day. Emphasizing the CWA’s “zero tolerance” for unpermitted discharges of pollutants to navigable water, the Majority explained:
If the presence of a short distance of soil and ground water were enough to defeat a claim, polluters easily could avoid liability under the CWA by ensuring that all discharges pass through soil and groundwater before reaching navigable waters.
Upstate Forever, Slip Op. at 25.
It should be recognized that the Majority’s holding did not extend to “discharges to groundwater itself.” Id. at 26. Similarly, the requirement of an originating “point source” discharge “initially collected or channeled” by the polluter, is still a condition of CWA jurisdiction. Id. at 24-25. Otherwise, the Fourth Circuit has joined the Ninth Circuit in holding that the CWA regulates indirect discharges to navigable waters passing through groundwater.
Similar issues are currently before the Sixth Circuit in the context of a utility’s long-standing fly ash disposal site and may result in a further clarification of the CWA’s scope, particularly where there is a discharge from groundwater to navigable waters but no clear originating “point source.” See Kentucky Waterways Alliance v. Kentucky Utilities Co., Case No. 18-5115 (U.S. Court of Appeals for the Sixth Circuit).