Last Thursday, the Fourth Circuit Court of Appeals held that environmental groups could bring a citizen suit under the Clean Water Act (“CWA”) against the owner of a ruptured gasoline pipeline where the pipeline had been repaired but the spilled gasoline allegedly continued to travel through groundwater and into nearby surface waters regulated by the CWA as “navigable waters.” Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018). In doing so, the Court weighed in on an issue that was of first impression to the Fourth Circuit and has significant implications for CWA liability – whether the discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant pursuant to the CWA. The Court also resolved the preliminary jurisdictional issue by finding that the plaintiffs had adequately alleged an “ongoing violation” as necessary to allege a CWA violation in the district court.

The case involves the 2014 rupture of an underground gas pipeline owned by a subsidiary of Kinder Morgan Energy Partners, LP. The ruptured pipeline spilled several hundred thousand gallons of gasoline near Belton, South Carolina. It was undisputed that while the ruptured pipeline was repaired, the spilled gasoline continued to seep into nearby waterways. The plaintiff environmental organizations, Upstate Forever and Savannah Riverkeeper, sued Kinder Morgan in district court, alleging that the spilled gasoline traveled through ground water for a distance of 1,000 feet or less before entering several creeks and wetlands regulated as “navigable waters.” The district court held that the plaintiffs failed to state a claim because the pipeline had been repaired and was no longer discharging pollutants “directly” into navigable waters. The district court further held that it lacked subject matter jurisdiction because the CWA did not encompass the movement of pollutants through ground water that is hydrologically connected to navigable waters. Thus, the district court held, the violation was “wholly past” and the plaintiffs had failed to allege an “ongoing violation” as required for a CWA citizen suit.

The Fourth Circuit reversed the district court on appeal, first finding that the plaintiffs had properly alleged an ongoing violation under the CWA as necessary for subject matter jurisdiction. Judge Barbara Milano Keenan, writing for the majority and joined by Chief Judge Roger L. Gregory, noted that Section 505 of the CWA defined the discharge of a pollutant as “any addition of any pollutant to navigable waters from any point source.” Judge Keenan reasoned that this language does not place temporal conditions on the discharge from the point source, nor does the definition limit the pollution from a point source that actively continues to release the pollutants. Because the plaintiffs had alleged that pollutants were discharged from a point source and continued to be added to navigable waters, the Court held that the plaintiffs had properly alleged an ongoing violation and that the district court therefore had subject matter jurisdiction.

The Court next considered the primary issue – and an issue of first impression in the Fourth Circuit – of whether the discharge of a pollutant that moves through the ground water before reaching navigable waters constitutes a point source discharge under the CWA. While the Court held that such a discharge can constitute a CWA violation, it specified that a plaintiff must sufficiently allege a direct hydrological connection between the ground water and navigable waters, which the court noted was necessarily a fact-specific determination. In reviewing the case before it, the Court determined that the alleged “extremely short distance” of 1,000 feet between the pipeline and the navigable waters strongly supported the conclusion that Kinder Morgan’s discharge was covered by the CWA. Notably, the Court specifically stated that its decision did not hold that the CWA covers discharges to ground water itself. Rather, its holding stated only that “an alleged discharge of pollutants, reaching navigable waters located 1,000 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.”

In its reasoning, the Court first observed that a CWA discharge need not be “directly” from a point source into navigable waters. In support of this premise, the Court quoted Justice Scalia’s reasoning in the landmark U.S. Supreme Court decision, Rapanos v. United States, 547 U.S. 715 (2006), which addressed the definition of navigable waters under the CWA. In Rapanos, Scalia observed that the CWA did not forbid just the addition of any pollutant “directly” to navigable waters, but rather the addition of any pollutant “to” navigable waters. The Court also cited to opinions in the Second and Ninth Circuits which had rejected theories that the CWA created liability for discharges only where the point source fed directly into a navigable water, such as a pipe or ditch. The Court further reasoned that the CWA would be greatly undermined if a discharged pollutant was not covered under the CWA simply because it passed through a short distance of soil or groundwater. If this were the case, the Court noted, polluters could easily avoid CWA liability by ensuring that all discharges passed through soil or groundwater before reaching navigable waters. Thus, the Court held that the plaintiffs plausibly alleged a direct hydrological connection between the ground water and navigable waters to state a claim for a discharge of a pollutant under the CWA. However, while the decision can be seen as broadening the CWA’s scope over discharges that indirectly reach navigable waters, the decision hinted that a more tenuous link might not suffice and thus it remains to be seen where the Fourth Circuit will draw the line in determining what constitutes a “direct hydrological connection” as necessary to find such a violation.

In a dissenting opinion, Judge Henry F. Floyd wrote that a close examination of the CWA revealed that Congress intended the CWA to cover only the ongoing addition of pollutants into navigable waters “from a point source.” Because the pipeline had been repaired and was not currently polluting navigable waters, Judge Floyd continued, there could be no ongoing violation. Judge Floyd reasoned that the continued seeping of pollutants from ground water into navigable waters constituted ongoing migration of pollutants, a type of nonpoint source pollution, which was not a cognizable claim under the CWA. The judge also emphasized that barring the citizen suit here would not allow Kinder Morgan to evade accountability for what he referred to as “severe environmental harm.” He noted that South Carolina’s environmental agency was already overseeing the remediation efforts and directing Kinder Morgan to conduct certain investigative activities. Thus, Judge Floyd found that the citizen suit was not the proper mechanism to seek redress for the pollution at issue.

This decision adds to a growing body of caselaw seeking to provide clarification on statutory violations for the discharge of pollutants into water bodies, both at the federal and state level. For example, earlier this month we reported on the Pennsylvania Supreme Court’s decision in EQT Prod. Co. v. Dep’t of Envtl. Prot., which held that the Pennsylvania Clean Streams Law did not authorize the Department of Environment Protection to impose daily penalties for the ongoing, continuing presence of pollutants in waters of the Commonwealth. No. 6 MAP 2017, 2018 WL 1516385, (Pa. Mar. 28, 2018). As states and environmental groups take more of a lead in enforcement of environmental laws, cases that push at the boundaries of statutory interpretation are certain to be more common.