Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law
The United States Court of Appeals for the Fourth Circuit decided on April 12, 2018 that the Clean Water Act (CWA)’s citizen-suit provision does not require that a point source continue to release a pollutant for an ongoing violation to occur, rather, there must only be an ongoing addition of pollutants to navigable waters (See Upstate Forever et al. v. Kinder Morgan Energy Partners LP, et al.).
Background on this Action
Conservation groups brought a CWA citizen suit regarding the rupture of an underground gasoline pipeline, alleging that the owner of the pipeline violated the CWA for polluting navigable waters without a permit. The claim was dismissed by the United States District Court for the District of South Carolina, and plaintiffs appealed.
The pipeline rupture occurred in late 2014, when several hundred thousand gallons of gasoline spilled from an underground pipeline near Belton, South Carolina. The pipeline was owned by Plantation Pipeline Company, Inc., which is a subsidiary of Kinder Morgan Energy Partners, LP (Kinder Morgan). Kinder Morgan, defendants in this action, did not dispute plaintiff’s allegation that the gasoline had seeped into nearby waterways. Plaintiffs additionally alleged that the gasoline continued to travel into those “navigable waters,” and that Kinder Morgan failed to comply with instructions from the South Carolina Department of Health and Environmental Control in remediation and recovery measures.
Considerations on Appeal
The Clean Water Act (CWA) prohibits discharge of a pollutant, which is “any addition of any pollutant to navigable waters from any point source.” (See 33 U.S.C. § 1251). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any . . . well . . . from which pollutants are or may be discharged.” “Navigable waters” have been interpreted by the United States Supreme Court in Rapanos v. United States as including more than traditionally navigable waters and including certain wetlands. The CWA requires parties making discharges of this nature to obtain an NPDES permit.
The court considered 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 ground water and is being discharged into surface waterways.” The District Court dismissed the action after concluding it lacked subject matter jurisdiction under the CWA. The District Court’s reasoning was based on the facts that the pipeline had been repaired, and the pollutants being discharged into navigable waters first traveled through ground water. The Court of Appeals disagreed, as the citizen suit provision covers the discharge of “pollutants that derive from a ‘point source’ and continue to be ‘added’ to navigable waters.”
In reaching this conclusion, the court considered whether a discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant within the meaning of the CWA. The plurality decision in Rapanos provided that discharge of a pollutant under the Act does not need to be discharge “directly” to a navigable water from a point source, but as Justice Scalia expressed, the CWA forbids the “addition of any pollutant to navigable waters.” (See 547 U.S. 715, 743 (2006)). This court joined the Second and Ninth Circuits in holding that to qualify as a discharge of a pollutant under the CWA, the discharge need not be channeled by a point source until it reaches navigable waters.
The court stressed that a discharge through ground water will not always support liability under the CWA, and that the connection between a point source and navigable waters must be clear. Therefore, “a 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 that passes through ground water.” Here, the navigable waters plaintiffs alleged were contaminated by the pipeline rupture were less than 1000 feet from the pipeline, to which defendants did not assert pollutants found had an independent or contributing cause.
Implications of the Court’s Decision
This decision represents the Fourth Circuit’s expansion of the CWA to indirect discharges. However, the court did not hold that the CWA covers discharges to the groundwater itself, only 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.”
This decision follows in a similar decision of the Ninth Circuit in Hawaii Wildlife Fund et al. v. County of Maui, which we summarized here. These decisions may potentially significantly expand CWA jurisdiction.