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Potential Circuit Split: Is Groundwater a Conduit to Jurisdictional Surface Water Under the Clean Water Act?

On Thursday December 7, 2017 the Fourth Circuit will hear oral arguments in Upstate Forever v. Kinder Morgan Energy, on whether liability under the Clean Water Act can be imposed where a pollutant is not directly discharged into surface waters, but instead reaches surface waters through an unpermitted discharge into groundwater.

 The Clean Water Act (“CWA”) prohibits unpermitted discharges of a pollutant from a point source into navigable surface waters. In Upstate Forever v. Kinder Morgan Energy, an underground pipe leaked an estimated 369,000 gallons of petroleum, contaminating the surrounding groundwater and soil. The leak was repaired and remediation is ongoing. Although groundwater is not regulated by the CWA, Plaintiffs argue that the groundwater carried the petroleum to surface waters and therefore violated the CWA. The federal district court in South Carolina dismissed the action for lack of subject matter jurisdiction and failure to state a claim. The Plaintiffs appealed.

District courts are split on the issue of whether groundwater that is hydrologically connected to surface waters is covered under the CWA. The court in Upstate Forever v. Kinder Morgan Energy applied a narrow interpretation that the CWA does not apply. However, a district court in Hawai’i recently applied a “conduit theory” imposing liability under the CWA to discharges from a point source that reach surface waters through groundwater. 

In Hawai’i Wildlife Fund v. County of Maui, the Lahaina Wastewater Reclamation Facility (“LWRF”) discharged effluent into four injection wells without a CWA permit. The injection wells are long pipes that carry effluent approximately 200 feet underground into a shallow groundwater aquifer. It was undisputed that the effluent deposited in the groundwater eventually reached the Pacific Ocean. The court held that when a Plaintiff can show that a discharge to groundwater is the “functional equivalent” to a discharge to surface waters, then liability under the CWA will apply “as long as the groundwater is a conduit through which pollutants are reaching navigable-in-fact water.” 

The decision in Hawai’i Wildlife Fund v. County of Maui was appealed to the Ninth Circuit and oral arguments were held on October 12, 2017. Split decisions in the Fourth and Ninth Circuits on this issue could tee up a showdown in the Supreme Court. Ultimately, this issue will impact every water treatment facility, liquid petroleum pipeline or other industry that injects, or has the potential to inject, contaminants into groundwater, requiring them to obtain a CWA permit where one was not previously required.

To read the briefs filed with the Fourth Circuit click here.

To listen to the oral argument in the Ninth Circuit click here.

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One Response to "Potential Circuit Split: Is Groundwater a Conduit to Jurisdictional Surface Water Under the Clean Water Act?"

  • Parker Dawson
    December 8, 2017 - 4:34 pm

    Thank you for this brilliant extrapolation.

    I fall in line with the 9th Circuit Court. Kinder Morgan Energy ought, at the very least, be charged with negligence and be held accountable for the entire cleanup effort.

    I do wonder, though, if any law exists regarding the polluting of ground water by means of effluent disposal. If not, these two cases are contesting an important precedent as to the jurisdiction of the CWA.