June 14, 2018 Articles

Discharges Through Groundwater: Fourth Circuit Expands CWA Jurisdiction

Unpermitted point source discharges that reach navigable waters indirectly, via groundwater, may lead to CWA liability.

By Sarah Peterman Bell, David Lazerwitz, and Brian Wantz – June 14, 2018

A recent ruling by the U.S. Court of Appeals for the Fourth Circuit signals a marked expansion of jurisdiction and potential liability under the Clean Water Act (CWA). Reversing the trial court’s dismissal for failure to state a claim, the panel determined that unpermitted point source discharges that reach navigable waters indirectly, via groundwater, may lead to CWA liability. The court also rejected the defendants’ alternative argument that the CWA does not authorize citizen suits where a former point source has been repaired and is no longer actively releasing contaminants.

The decision in Upstate Forever v. Kinder Morgan, Case No. 17-1640 (4th Cir. Apr. 12, 2018), analyzed two issues: (1) whether a discharge of pollutants that reaches navigable waters via groundwater can support liability under the CWA and (2) whether a pipeline spill constitutes an “ongoing violation” where the pipeline has been repaired but the released pollutants continue to migrate to navigable waters. On both issues, the court answered yes.

The decision in Upstate Forever largely follows February’s Ninth Circuit decision in Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018). Together, these cases signal a significant expansion of CWA jurisdiction and liability. Now, companies face potential CWA liability—or the specter of procuring a CWA permit under the National Pollutant Discharge Elimination System (NPDES)—for direct and indirect discharges to groundwater, including those from spills, leaks, surface impoundments, and leaking underground storage tanks.

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