A recent Fourth Circuit decision added to the debate over the scope of the Clean Water Act (CWA), finding that the CWA regulates the discharge of pollutants from a point source that reaches navigable waters via a direct hydrological connection with ground water. This decision demonstrates a growing trend among the circuit courts that may result in CWA permitting and discharge requirements for qualifying ground water discharges to traditional navigable waters.

The decision, Upstate Forever v. Kinder Morgan Energy Partners, No. 17-1640 (4th Cir. April 12, 2018), involved a citizen suit challenge against Kinder Morgan after an underground pipeline owned by a subsidiary ruptured, spilling over 369,000 gallons of gasoline. The South Carolina Department of Health and Environmental Control worked with Kinder Morgan to remediate and recover the majority of the gasoline but some remained in the ground water. Environmental groups sued over the remaining gasoline, arguing it violated the CWA by continuing to seep into nearby tributaries and wetlands from the ground water. The case was originally dismissed by the district court for lack of subject matter jurisdiction.[1]

Vacating the district court’s decision, the Fourth Circuit found that an indirect discharge to navigable waters through a direct hydrologic connection to ground water could violate the CWA. The court argued the CWA was intended to protect the nation’s waters by abating pollutants that flow into navigable waters, regardless of whether there is a delay caused by the discharge’s migration through ground water. The Fourth Circuit relied heavily upon the Ninth Circuit’s recent decision, Hawaii Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir. February 1, 2018),[2] which similarly held that a point source discharge to ground water of a pollutant that is “fairly traceable” from the point source is regulated by the CWA. The Fourth Circuit also relied upon the Second Circuit’s Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) decision holding that the CWA does not require a discharge from a point source “directly” into navigable waters.[3]

Each of these decisions represents a more expansive interpretation of discharges to navigable waters, which has not traditionally included ground water. The decisions subject qualifying ground water discharges in impacted states to regulation by U.S. EPA and state agencies and potentially require dischargers to obtain a National Pollution Discharge Elimination System (NPDES) Permit for such discharges. Further, these decisions may also complicate U.S. EPA’s current efforts to rescind the 2015 “Waters of the United States” Rule and replace it with a narrower interpretation of CWA jurisdiction.

Highlighting the significance of these developments, on February 20, 2018 U.S. EPA published a request for comments regarding whether it should clarify when or if releases to ground water with a direct hydrological connection to jurisdictional surface waters are regulated by the CWA.[4] EPA states that its historical position has been that such discharges could potentially be subject to CWA permitting requirements. Yet EPA notes the evolving case law on this issue and that the determination is a fact-specific one, depending upon, among other things, the time it takes the pollutant to move to surface waters, the distance the pollutant travels and its traceability to a source. EPA thus seeks public comment on whether subjecting such releases to CWA permitting complies with the CWA and, if so, which permit program it should use to regulate such discharges. Comments are due by May 21, 2018.

Congress has also taken notice of this issue and the Senate Committee on Environment and Public Works discussed whether legislative action is warranted at an April 18, 2018 hearing. However, these discussions largely proceeded along partisan lines and it is unclear whether Congress will take a more active role at this time.

Cases similar to Upstate Forever and Hawaii Wildlife are pending in other circuit courts, which may drive further regulatory or legislative actions in the near future. Given this flurry of federal government activity and the potential for additional CWA expansion, industry, state regulators and lawyers alike would be wise to stay tuned and express their concerns over such developments through EPA’s request for comments.