Last week, the 4th Circuit Court of Appeals – not the most liberal court in the land – joined the 9th Circuit in ruling that discharges from a point source to groundwater can be subject to the Clean Water Act. The decisions follow a number of district court cases to the same effect. It’s hard to deny the trend at this point.
I’ve always been skeptical of these cases, largely because it’s fairly obvious that groundwater is not a “Water of the United States” and pretty much all groundwater discharges to surface water eventually, so it’s hard to know where CWA jurisdiction would end. Nonetheless, I think that the 4th Circuit decision is the most persuasive argument I’ve seen to date, and I’m beginning to believe that the 4th and 9th Circuit position might actually survive Supreme Court review, though that’s by no means certain.
A few points about the 4th Circuit decision are worth noting. First, the decision shrewdly coopts Justice Scalia in support of the proposition that discharges from a point source can be subject to CWA jurisdiction, even if not directly to navigable waters:
Justice Scalia observed that “[t]he Act 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.’”
Second, like the 9th Circuit and the District Court decision in Tennessee Clean Water Network v. TVA, the 4th Circuit made clear that not all discharges to groundwater are subject to the CWA. Noting that the discharge before it was only 1,000 feet from a navigable water, the 4th Circuit held that:
a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water.
It is still not obvious to me what the statutory basis for this interpretation is, but it at least provides a limiting principle, even if a somewhat vague one.
Finally, I note that the 4th Circuit decision contains an additional important holding. It concluded that the plaintiffs adequately alleged a continuing violation – a prerequisite to a CWA citizens suit – by asserting that contaminated groundwater continues to leach into navigable waters, notwithstanding that Kinder Morgan had already stopped the leak from the pipeline. If discharges to groundwater are subject to the CWA, then it could be very important that a violation may continue even after the release from the point source has ended, so long as migrating contamination continues to reach a navigable water.