An Expanded Interpretation of ...

An Expanded Interpretation of Clean Water Act Jurisdiction

By Kirk Tracy

The U.S. Fourth Circuit Court of Appeals, in Upstate Forever v. Kinder Morgan Energy Partners, L.P., recently held that “an alleged discharge of pollutants, reaching navigable waters located 1000 feet or less from the point source by means of ground water with a direct hydrological connection to such navigable waters, falls within the scope of the CWA,” and is subject to liability under the citizen suit provisions under 33 U.S.C. § 1365(a).[1] This holding was despite the fact that a ruptured pipeline, the original point source of the pollution, was repaired approximately two years prior to the filing of the citizen suit.

The Court ruled that (1) a pipeline spill constitutes an “ongoing violation” where the pipeline originally released the pollutants that continue to migrate to navigable waters, although the pipeline has been repaired; and (2) CWA liability may be found where the continued migration of pollutants still in the environment, through groundwater, reaches navigable waters.[2] To be clear, the Court did not hold that the CWA covers discharges to groundwater itself, but did cover the facts of this case, where such discharges reach navigable waters.[3]

The case:

In late 2014, a gasoline pipeline ruptured, spilling several hundred thousand gallons near Belton, South Carolina. The pipeline was owned by a subsidiary of Kinder Morgan Energy Partners, LP.[4] Plaintiffs filed a citizen suit in late 2016, alleging that the gasoline continued to travel a distance of 1000 feet or less from the pipeline to the respective “navigable waters.” Despite an alleged cleanup of 209,000 gallons of contaminants, at least 160,000 gallons allegedly remained in the soil and groundwater and continued migrate to the navigable waters.[5] Of note, it was not disputed that the gasoline from the ruptured pipeline seeped into nearby waterways, and continued to do so.[6]

Defendants moved to dismiss. “The district court held that it lacked subject matter jurisdiction under the CWA, because the pipeline has been repaired and the pollutants currently pass through ground water to reach navigable waters.”[7] The Fourth Circuit reversed. The Court held that there can be an ongoing violation of the CWA (33 U.S.C. § 1311(a)) where, as alleged here, “pollutants continue to be added to navigable waters.”[8] The fact that the ruptured pipeline was repaired did not, of itself, render the violation wholly in the past.[9]

Further, following the Ninth Circuit’s recent ruling in Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018), the Fourth Circuit held that “the CWA is not limited to discharges of pollutants ‘directly’ from the point source to navigable waters.”[10] A discharge “need not be channeled by a point source until it reaches navigable waters.”[11] Rather, again in agreement with the Ninth Circuit, “a discharge that passes from a point source through ground water to navigable waters may support a claim under the CWA,” although it does not always support such a claim.  “Instead, the connection between a point source and navigable waters must be clear.”[12] The Fourth Circuit held that a plaintiff must allege “a direct hydrological connection.”[13] The Court reasoned this test is similar to the Ninth Circuit’s standard that an indirect discharge must be “fairly traceable” from the point source to navigable waters.[14] Although such a determination is fact-specific, the Court found it existed here, especially in light of the undisputed fact that the pollution from the ruptured pipeline was reaching navigable waters. Other factors included the relatively short distance traveled (1000 feet or less) and the absence of any claims of another potential source of pollution.[15]

Conclusion:

Companies face an expanding scope of potential CWA liability, and the potential need to obtain an NPDES permit for both direct and indirect discharges to navigable waters, including via groundwater, from anything that could be considered a “point source” (e.g., ruptured pipes, surface impoundments, storage tanks, etc.). If a “a direct hydrological connection” (Fourth Circuit) can be established, or the indirect discharge is “fairly traceable” (Ninth Circuit) from the point source to navigable waters, liability under the NPDES program can be found.

[1] Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, 2018 U.S. App. LEXIS 9144, at *28 (4th Cir. Apr. 12, 2018).

[2] Id., at *4-*5. The citizen suit was based on a violation of the National Pollutant Discharge Elimination System (NPDES), 33 U.S.C. § 1311(a), 1342, which includes violations of a permitted and a discharge, such as here, for which the polluter could not have obtained any permit. Upstate Forever, 2018 U.S. App. LEXIS 9144, at *6.

[3] Upstate Forever, 2018 U.S. App. LEXIS 9144, at *28.

[4] Id., at *4.

[5] Id., at *8-*9.

[6] Id., at *5. Plaintiffs also alleged that the ongoing agency-supervised remediation efforts were insufficient, id., at *9-*10, and sought injunctive relief requiring Kinder Morgan to take further measures to control and abate the spill. Id., at *12.

[7] Id., at *5.

[8] Upstate Forever, 2018 U.S. App. LEXIS 9144, at *21.

[9] Id., at *20.

[10] Upstate Forever, 2018 U.S. App. LEXIS 9144, at *19.

[11] Id., at *24.

[12] Id., at *25.

[13] Id., at *25-*26.

[14] Id., at *26 (citing Hawai’i Wildlife Fund, 881 F.3d 754, 2018 WL 1569313, at *8 n.3).

[15] Id., at *26-*27.