Reviving a federal Clean Water Act (“CWA”) lawsuit, the U.S. Court of Appeals for the Fourth Circuit held that an indirect discharge – such as a discharge to ground water – may fall within the scope of the CWA, if the indirect discharge is sufficiently connected to navigable waters to be covered under the CWA.  The decision was issued on April 12, 2018, in the case, Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al.  The facts were unusual for a citizen suit, in that the citizen group plaintiffs were targeting discharges to ground water.  Plaintiffs alleged that defendants were in violation of the CWA because defendant (or “Kinder Morgan”) discharged pollutants into navigable waters without obtaining a National Pollutant Discharge Elimination System (“NPDES”) permit.  The source of the alleged discharge is a gasoline spill: in 2014, “over 369,000 gallons of gasoline spilled from Kinder Morgan’s underground pipeline, which extends over 1100 miles through parts of the eastern United States.”  Slip Op. at 8.  According to plaintiffs, the “gasoline pollutants from the pipeline are seeping into navigable waters as defined by the CWA.”  Id.  Kinder Morgan subsequently repaired the pipeline, and has recovered at least a portion of the spilled gasoline.

In response to plaintiffs’ allegations on appeal, Kinder Morgan argued that the CWA violation ceased once the pipeline was repaired, and alternatively, if seepage into ground water is ongoing, the pollution is seeping from nonpoint sources, which are not subject to regulation under the CWA.  Id. at 12.  Defendant also argued that “discharges into navigable waters from hydrologically connected ground water do not fall within the CWA’s definition of a ‘discharge of a pollutant’ in 33 U.S.C. § 1362(12)(A).”  Id.

Disagreeing with Kinder Morgan’s position, the court found that nothing in the CWA bars plaintiffs from seeking injunctive relief after a polluter has repaired the “initial cause of the pollution.”  Id. at 15.  Further, the court stated that “a discharge that passes from a point source through ground water to navigable waters may support a claim under the CWA,” and “a point source is the starting point or cause of a discharge under the CWA, but that starting point need not also convey the discharge directly to navigable waters.”  Id. at 21-22.  But, the court noted that

a discharge through ground water does not always support liability under the Act. [] Instead, the connection between a point source and navigable waters must be clear.

Id. at 22-23 (emphasis added).

The Fourth Circuit vacated the district court’s judgment, and remanded the case for further proceedings.  This decision follows a similar recent decision of the Ninth Circuit in Hawaii Wildlife Fund et al. v. County of Maui, Case No. 15-17447 (9th Circuit, filed Feb. 1, 2018).  In that case, the court held that underground injection wells were required to obtain NPDES permit coverage because the discharge from the wells was “fairly traceable” from the discharge point (point source) to a navigable water.  On March 30, the Ninth Circuit denied the County of Maui’s petition to reconsider the Court’s decision en banc.  The County of Maui now plans to file a petition for review before the U.S. Supreme Court.

The recent Fourth Circuit and Ninth Circuit cases are significant because such decisions have the potential to expand the jurisdiction of the CWA substantially.  Regulation of ground water that is fairly traceable to a navigable water, for example, would have a severe impact on regulated entities, ranging from oil companies, manufacturers, and facility managers.  Under this expansive view of the scope of the CWA, discharge into ground water would require an NPDES permit, which would not only expand the scope of the CWA’s jurisdictional reach, it also would greatly expand the scope of the citizen suit provision and the types of discharges plaintiffs groups could seek to target.

The Fourth Circuit case is Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al., Case No. 17-1640 (4th Cir., Apr. 12, 2018 ).