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...
