Groundwater Connection to Navigable Waters Sufficient for CWA Violation
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.