On April 12, the Fourth Circuit became the second federal court of appeals this year to hold that a point source need not directly introduce pollutants into navigable waters in order for the Clean Water Act’s (CWA) prohibition on unpermitted discharges to apply. In Upstate Forever v. Kinder Morgan Energy Partners, L.P., No. 17-1640, a divided panel held that citizens’ groups had adequately stated a claim for relief under the CWA by alleging that gasoline released from a pipeline was migrating—after the pipeline had been repaired—through groundwater to nearby creeks. This holding bears similarities to and reflects an attempt on the part of the majority to make its reasoning consistent with the Ninth Circuit’s recent decision in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447, 2018 WL 1569313 (Feb. 1, 2018), in which that court affirmed a district court’s finding of liability based on the discharge of pollutants to the ocean via groundwater from wastewater injection wells. Together, the two cases signal the potential for expansion of the scope of CWA liability and the National Pollution Discharge Elimination (NPDES) program.

The case arose from a 2014 gasoline spill from an underground pipeline in South Carolina. The plaintiffs alleged that the gasoline spilled out into surrounding soil and groundwater, ultimately seeping into two nearby creeks and their adjacent wetlands. Even though the pipeline was repaired and remediation was proceeding under state agency oversight, the plaintiffs alleged that already-leaked petroleum continued to migrate into the creeks through groundwater.

The district court held that it lacked subject matter jurisdiction and that the plaintiffs had failed to state a claim. The lower court concluded that the fact that the pipeline was no longer releasing gasoline meant that the plaintiffs could not allege an ongoing violation of the CWA necessary to sustain a citizen suit under Gwaltney v. Chesapeake Bay Found., 484 U.S. 49 (1987). It further held that NPDES liability under the CWA could not be premised on allegations of pollutants indirectly reaching surface waters via groundwater. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 252 F. Supp. 3d 488 (D.S.C. 2017).

CWA Liability for Past, Indirect Releases to Surface Waters

The Fourth Circuit first held that the plaintiffs sufficiently alleged an ongoing violation by pleading that gasoline already released into soil and groundwater continued to migrate into surface waters after the pipeline had been repaired. The majority found that the CWA “does not require that the point source continue to release a pollutant” in order for a discharge to be ongoing. Rather, the court explained that a discharge continues so long as pollutants that originated from a point source continue to enter surface waters. In short, any “delay between the time at which pollution leaves the point source and the time at which it is added to navigable waters” is not an obstacle to bringing a citizen suit under the CWA.

The majority then determined that a point source—like a pipeline—need not directly deliver pollutants to surface waters for CWA liability to arise. Rather, the court found that the CWA only requires that the point source be “the starting point or cause of a discharge.” The majority further explained that a release from a point source and pollutants reaching navigable waters only must be “sufficiently connected” in order for a discharge to be subject to the CWA.

Under this standard, the court explained, “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 that passes through ground water.” The court’s reasoning relied substantially on EPA’s past pronouncements that the CWA applies to discharges to groundwater that has “direct hydrological connection” to surface waters. Applying this new, judicially-created standard, the court revived plaintiffs’ claim because they had alleged that the groundwater through which the leaked gasoline migrated had a direct hydrological connection to nearby creeks.

In dissent, Judge Floyd cautioned that the majority’s reading of the CWA threatened to undermine the statute’s distinction between point source and non-point source discharges. The dissent highlights Congress’s intention to limit federal jurisdiction under the CWA to point source pollution and how the NPDES permitting scheme is ill-suited to non-point source releases. In Judge Floyd’s view, an active release from a point source (i.e., the pipeline) is necessary for there to be an ongoing violation, and migration through groundwater is non-point source pollution that Congress sought to exclude from the CWA’s coverage.

More to Come in the Courts and at EPA

The Fourth Circuit’s decision is one of several ongoing federal actions addressing when a discharge covered by the CWA occurs. A petition for certiorari seeking Supreme Court review of the Ninth Circuit’s County of Maui decision is widely anticipated, while two additional cases likely to result in holdings on this issue are pending in the Second and Sixth Circuits. 26 Crown Street Assocs. v. Greater New Haven Water Pollution Control Authority, No. 17-2426 (2d Cir.); Tenn. Clean Waters Network v. TVA, No. 17-6155 (6th Cir.). At the same time, EPA has requested comments on its past positions—which were central to the Fourth Circuit’s reasoning in Upstate Forever (but rejected in part by the Ninth Circuit in County of Maui)—including the question of whether the CWA requires permits for discharges to groundwater, particularly when the discharge is subject to regulation under another state or federal regulatory regime. Comments are due to EPA by May 21, 2018.