On April 12, a significant Clean Water Act (CWA) ruling has been made by the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit, in a split decision, held, in a case of first impression in this circuit, that the movement of a discharged pollutant through groundwater to navigable waters can constitute a violation of the CWA’s requirement that discharges of a pollutant from a point source to navigable waters is illegal unless the discharge has been permitted. The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP.

A few weeks ago, a similar decision was rendered by the U.S. Court of Appeals for the Ninth Circuit in the case of Hawai’i Wildlife Fund, et al., v. County of Maui.

In late 2014, a pipeline operated by a subsidiary of Kinder Morgan Energy Partners, LP (Kinder Morgan) suffered an underground rupture, and it was later discovered that the pipeline had released 369,000 gallons of gasoline after the effects of this spill were reported by local residents. Kinder Morgan quickly repaired the rupture, and to date, over 200,000 gallons of the spilled gasoline has been recovered, and the defendant is working with the state agencies to remediate the remainder of the spill.

In December 2016, the plaintiff environmental organizations filed a CWA Citizen Suit alleging that this was an “ongoing spill,” and a violation of the CWA’s prohibition against unpermitted discharges of pollutants from a point source to navigable waters, and sought injunctive relief to remediate the ongoing pollution. However, in April 2017, the U.S. District Court for South Carolina dismissed this lawsuit for lack of subject matter jurisdiction and a failure to state a claim.

The elements of a CWA Citizens Suit are that there has been a “discharge” of a pollutant into navigable waters from a “point source” without a permit. Before considering these elements, the Fourth Circuit had to be sure this was a “continuing violation,” and not a “past violation;” unless the violation is continuing, the plaintiffs cannot maintain their lawsuit. The Fourth Circuit was divided on this issue, with the majority holding that the fact that Kinder Morgan repaired the ruptured pipeline does not mean that pollution emanating from the pipeline spill is not continuing to have adverse environmental consequences.

In its close reading of the text of the CWA, the majority concludes that even if the offending conduct has ceased (here, the pipeline was quickly repaired), the violation can still be continuous and ongoing:

“Nothing in the language of the CWA suggests that citizens are barred from seeking injunctive relief after a polluter has repaired the initial cause of the pollution.”

The majority concluded that the pipeline “unambiguously qualifies as a point source,” and the text of the CWA “does not require that the point source continue to release a pollutant for a violation to be ongoing.”

The dissent fundamentally disagreed:

“Here, the only point source at issue—Kinder Morgan’s pipeline—has been repaired and is not currently adding any pollutants into navigable waters, thus negating a necessary element of a CWA violation.”

With respect to the requirement that there be a discharge of a pollutant, the majority holds that the text of the CWA does not place “temporal conditions” for the discharge of a pollutant from a point source to be cognizable; the plaintiff need only allege an ongoing addition to navigable waters “originating” from a point source. Moreover, the CWA is not specifically limited to “direct discharges”—they can also be “indirect discharges”—in those circumstances where the pollution travels through groundwater to indisputably navigable waters (here, creeks in the Savannah Rivershed) having a hydrologic connection to the groundwater.

The majority references Justice Scalia’s plurality opinion in Rapanos v. U.S., where he stated that the CWA does not forbid only the direct discharge of any pollutant to navigable waters, “but rather the addition of any pollutant to navigable waters.” To hold other otherwise would unnecessarily constrict the application of the CWA enforcement to only those discharges that are “seamlessly channeled by point sources until the moment the pollutant enters navigable waters.”

Finally, although an indirect discharge may fall within the scope of the CWA, “such discharges must be sufficiently connected to navigable waters to be covered under the Act.” The majority notes that the Environmental Protection Agency has taken the position that the CWA applies to discharges from a point source via ground water that has a direct hydrological connection to surface water,” and these views are entitled to respectful consideration. Because it is alleged that the pollutants are seeping into navigable waters located about 1000 feet from the pipeline, the majority believes there is strong factual support—which must be proven—that this pipeline spill is covered by the CWA.

The dissent argues that, with the repair of the pipeline, this is an instance of non-point source pollution, which is not subject to the National Pollutant Discharge Elimination System (NPDES) regulation under the CWA. Accordingly, the dissent states that “in my view, the majority disregards point source as an element of a CWA violation and invents a violation not cognizable under the CWA.”

The Fourth Circuit has now vacated the District Court’s judgment and remanded the case for further proceedings.