sboxermanFeatured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP

In a recent decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 (4th Cir. Apr. 12, 2018), a panel of the U.S. Court of Appeals for the Fourth Circuit held that federal Clean Water Act (“CWA” or “Act”) jurisdiction extended to pollutants released into soil that then migrated through groundwater to a water of the United States.  Last, week the full court denied rehearing en banc, clearing the way for a petition for certiorari to the U.S. Supreme Court.

Indeed, with this ruling, it seems ever more likely the Supreme Court will weigh in on this question of the scope of Clean Water Act jurisdiction.  In Upstate, the Fourth Circuit panel joined the Ninth Circuit, which recently ruled that the Act did extend to a release of pollutants through groundwater to a water of the United States, Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) (click here for my analysis of that decision), but those rulings conflict with two earlier rulings by the Fifth and Seventh Circuits.  See Rice v. Harken Exploration Co., 250 F.3d 264, 271 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).

Three other cases now pending before the courts of appeal also present the issue.  Sierra Club v. Virginia Electric and Power Co. d/b/a Dominion Virginia Power, Case No. 17-1895 (Fourth Circuit) (argued in March), and Tennessee Clean Water Network v. Tennessee Valley Auth., Case No. 17-6155 and Kentucky Waterways Alliance v. Kentucky Utils. Co., Case No. 18-5115 (both Sixth Circuit) (both to be argued in August).

The basis for a federal Clean Water Act claim is clearly defined by the statute.  The Act prohibits “the discharge of any pollutant” unless in compliance with other provisions of the Act, such the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  33 U.S.C. § 1311(a).  A “discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source.”  33 U.S.C. § 1362(12) (emphasis added).

Maui and Upstate, however, effectively found that releases to diffuse subsurface groundwater could be regulated under the Act, with the groundwater acting as a conduit to jurisdictional surface waters.  Opponents of expanded jurisdiction have argued that reading conflicts with the plain meaning of a “point source,” which is a “discernable, confined, and discrete conveyance.” 33 U.S.C. § 1362(14).  Moreover, it would eviscerate the distinction Congress made between point source and nonpoint source discharges.  33 U.S.C. § 1314(f).

Much has been written on this question recently, as in response to the Maui ruling the U.S. EPA asked for and has received extensive public comment on whether the Clean Water Act regulates pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the surface water.  Request for Comment, Clean Water Act Coverage of “Discharges of Pollutants” via a Direct Hydrological Connection to Surface Water, 83 Fed. Reg. 7126 (Feb. 20, 2018).

The Upstate decision, however, is particularly striking, because the court found the migration of contaminants through groundwater was not only a discharge, but a continuing discharge under the Act, even if the original source had been corrected.  In Upstate an underground gasoline pipeline broke, spilling its contents into the soil and ground water.  The operator repaired the breach, and under the direction of the state regulator, remediated the spill, recovering some but not all of the released gasoline.  However, two years later a plaintiff filed a citizen’s suit alleging “ongoing violations” of the Act because some of the unrecovered gasoline had migrated through the groundwater and reached surface waters.  Id. at 8-10.

Under settled case law, a citizen suit can be sustained only if the discharge was ongoing at the time the plaintiff files suit.  Gwaltney of Smithfield, Ltd. V. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 64 (1987).   However, the Upstate court interpreted the term “discharge” to include the mere presence of pollutants in the environment.  Reasoning that a discharge is defined as “any addition of any pollutant to navigable waters from any point source,” the court held the defendant was continuing to “add” pollutants to navigable waters via the groundwater.  Upstate at 16. According to the court, nothing in the CWA requires “that the point source continue to release a pollutant for a violation to be ongoing” and that citizen suits may still be filed “regardless [of] whether a defendant’s conduct causing the violation is ongoing.” Id. at 16.

Hence, to find Clean Water Act liability for the discharge of pollutants from groundwater slowly migrating to surface water, the Fourth Circuit seized on the first condition of an “addition of any pollutant,” but seemingly ignored the second condition: that the pollutants be discharged “from any point source.”  In this case, the actual release from a point source (the pipeline) had ended two years earlier.  As such, taken to its logical conclusion, under the court’s reasoning, the pipeline could have been taken out of service and removed, yet still be “discharging” to navigable waters under the Act.

Left as is, the Upstate ruling would be yet another example of expanding federal jurisdiction under the Clean Water Act.  Its approach, however, may be challenged by other courts.  Just this week, however, an Alabama district court rejected the reasoning in Upstate.  See Day, LLC v. Plantation Pipe Line Co., slip. Op. 2:16-cv-00429 (N.D. Ala. June 4, 2018).  The court there found the release from a pipeline that had stopped two years earlier (and had been remediated) was a wholly past discharge and thus not an ongoing discharge subject to Clean Water Act liability.  Id. at 44.

Sources with the potential to release pollutants to groundwater should pay close attention to these rulings to understand fully the scope of possible liabilities.