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The US Court of Appeals for the Fourth Circuit Holds that Groundwater Connections to Navigable Waters are Sufficient for CWA Violation

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On April 12, 2018, the Fourth Circuit Court of Appeals in Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al. held that environmental groups could bring a citizen suit under the Clean Water Act (CWA) for pollutant discharges that move through groundwater that have a direct hydrologic connection to a navigable water way rather than just a direct discharge into a surface water. In this case, the defendant, Kinder Morgan, operated an underground pipeline in South Carolina that ruptured and contaminated groundwater. The plaintiffs, multiple environmental and public interest groups, sued for violations of the CWA. The defendants succeeded in federal district court, thus the plaintiffs appealed to the Fourth Circuit Court of Appeals. The major question at issue in this case was whether a pollutant that moves through groundwater before reaching navigable waters may constitute a discharge of a pollutant within the meaning of the CWA. Citing multiple decisions, the court found that in order to bring its claim, the plaintiff needed to show that a direct hydrological connection between groundwater and navigable waters existed in the groundwater where the discharge of the pollutant occurred. In its conclusion, the court found that the plaintiff was able to show that a direct hydrological connection between the groundwater and navigable waters in this instance existed and, thus, could bring its claim under the CWA. This is one of the first decisions regarding this type of situation and reaching this conclusion with respect to the CWA. As such, it is unclear whether a comparable decision will be made in all federal courts. The defendants still could appeal the Fourth Circuit’s decision. Source: Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018).   

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