Advisories April 13, 2018

Environment, Land Use & Natural Resources Advisory: Fourth Circuit Expands Scope of Clean Water Act

Executive Summary
Minute Read

Our Environment, Land Use & Natural Resources Group discusses the Fourth Circuit’s decision to allow a Clean Water Act class action suit to move forward.

  • Upstate Forever v. Kinder Morgan Energy Partners
  • The plain language of the CWA
  • “Direct hydrological connection”

Yesterday, in a 2–1 decision, the Fourth Circuit Court of Appeals held that the Clean Water Act (CWA) prohibits the discharge of pollutants from a point source through groundwater that has a direct hydrological connection to navigable waters of the United States. The decision, Upstate Forever v. Kinder Morgan Energy Partners, reversed the district court’s dismissal of a CWA citizen suit filed by two environmental groups against Kinder Morgan and Plantation Pipe Line following a pipeline rupture in South Carolina that released several hundred thousand gallons of gasoline. Coming on the heels of the Ninth Circuit’s Hawai‘i Wildlife Fund v. County of Maui decision, the Fourth Circuit’s opinion will embolden environmental groups bringing citizen suits to enforce the Clean Water Act on similar grounds.

In support of its holding, the majority reasoned: (1) per Justice Scalia’s opinion in Rapanos v. United States, the CWA does not forbid the addition of any pollutant directly to navigable waters from any point source, but rather the addition of any pollutant to navigable waters; (2) the plain language of the CWA requires only that a discharge come “from” a point source; and (3) both the Second (Waterkeeper Alliance v. Environmental Protection Agency) and Ninth (County of Maui) Circuits have rejected the theory that the CWA creates liability for discharges only when the point source itself directly feeds into the navigable water.

The majority further clarified that not all discharges that pass from a point source through groundwater to navigable waters may support a claim under the CWA. Rather, such connection between a point source and navigable water must be “clear,” i.e., have a “direct hydrological connection.”

The lone dissent argued that the citizen suit should have been dismissed because the only point source at issue—the pipeline—has been repaired and is not currently adding any pollutants into navigable waters, thus negating a necessary element of a CWA violation.

A completely different panel of Fourth Circuit judges recently heard oral argument in Sierra Club v. VEPCO, a case involving alleged indirect discharges of arsenic from closed coal ash landfills through groundwater to a nearby river and creek. In Sierra Club, following a bench trial, the district court held that indirect discharges of arsenic through groundwater to surface water violates the CWA. At oral argument, the Fourth Circuit panel appeared to doubt the CWA covered such discharges. Although the procedural posture of Upstate Forever differs from Sierra Club, the parties in Sierra Club will likely file extensive supplemental briefing in light of this opinion.

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