Upstate Forever v. Kinder Morgan Energy Partners , 887 F.3d 637 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1640
UPSTATE FOREVER; SAVANNAH RIVERKEEPER,
Plaintiffs - Appellants,
v.
KINDER MORGAN ENERGY PARTNERS, L.P.; PLANTATION PIPE LINE
COMPANY, INC.,
Defendants - Appellees.
------------------------------
ANDERSON COUNTY, SOUTH CAROLINA; PIPELINE SAFETY TRUST,
Amici Supporting Appellant,
AMERICAN PETROLEUM INSTITUTE; ASSOCIATION OF OIL PIPE
LINES; GPA MIDSTREAM ASSOCIATION; TEXAS PIPELINE
ASSOCIATION; NATIONAL ASSOCIATION OF COUNTIES; NATIONAL
LEAGUE OF CITIES; NATIONAL ASSOCIATION OF CLEAN WATER
AGENCIES; AMERICAN FOREST AND PAPER ASSOCIATION;
AMERICAN IRON AND STEEL INSTITUTE; EDISON ELECTRIC
INSTITUTE; NATIONAL MINING ASSOCIATION; UTILITY WATER ACT
GROUP; STATE OF WEST VIRGINIA; STATE OF SOUTH CAROLINA;
STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF INDIANA;
STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MISSOURI;
STATE OF OKLAHOMA; STATE OF UTAH; STATE OF WISCONSIN;
GOVERNOR PHIL BRYANT
Amici Supporting Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:16-cv-04003-HMH)
Argued: December 7, 2017 Decided: April 12, 2018
Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion,
in which Chief Judge Gregory joined. Judge Floyd wrote a dissenting opinion.
ARGUED: Frank S. Holleman, III, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Appellants. James P. Cooney, III, WOMBLE BOND
DICKINSON (US) LLP, Charlotte, North Carolina, for Appellees. ON BRIEF:
Christopher K. DeScherer, SOUTHERN ENVIRONMENTAL LAW CENTER,
Charleston, South Carolina, for Appellants. Richard E. Morton, Todd W. Billmire,
Jackson R. Price, Charlotte, North Carolina; Clayton M. Custer, WOMBLE CARLYLE
SANDRIDGE & RICE, LLP, Greenville, South Carolina, for Appellees. Catherine H.
McElveen, RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Mount
Pleasant, South Carolina, for Amicus Pipeline Safety Trust. Leon C. Harmon, Anderson,
South Carolina, for Amicus Anderson County, South Carolina. Alan Wilson, Attorney
General, Robert Cook, Solicitor General, J. Emory Smith, Jr., Deputy Solicitor General,
OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Amicus State
of South Carolina. Patrick Morrisey, Attorney General, Thomas M. Johnson, Jr., Deputy
Solicitor General, John S. Gray, Deputy Attorney General, Charleston, West Virginia, for
Amicus State of West Virginia. Steve Marshall, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of
Alabama. Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas.
Curtis T. Hill, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
INDIANA, Indianapolis, Indiana, for Amicus State of Indiana. Derek Schmidt, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas, for
Amicus State of Kansas. Jeff Landry, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF LOUISIANA, Baton Rouge, Louisiana, for Amicus State of Louisiana.
Joshua D. Hawley, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
MISSOURI, Jefferson City, Missouri, for Amicus State of Missouri. Mike Hunter,
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA,
Oklahoma City, Oklahoma, for Amicus State of Oklahoma. Sean D. Reyes, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah,
for Amicus State of Utah. Brad Schimel, Attorney General, WISCONSIN
2
DEPARTMENT OF JUSTICE, Madison, Wisconsin, for Amicus State of Wisconsin.
Samuel L. Brown, HUNTON & WILLIAMS LLP, San Francisco, California; Nash E.
Long, III, Brent A. Rosser, HUNTON & WILLIAMS LLP, Charlotte, North Carolina;
Michael R. Shebelskie, HUNTON & WILLIAMS LLP, Richmond, Virginia, for Amici
National Association of Counties, National League of Cities, National Association of
Clean Water Agencies, American Forest and Paper Association, American Iron and Steel
Institute, Edison Electric Institute, National Mining Association, and Utility Water Act
Group. David H. Coburn, Cynthia L. Taub, STEPTOE & JOHNSON LLP, Washington,
D.C., for Amici American Petroleum Institute, Association of Oil Pipe Lines, GPA
Midstream Association, and Texas Pipeline Association.
3
BARBARA MILANO KEENAN, Circuit Judge:
In late 2014, several hundred thousand gallons of gasoline spilled from a rupture
in a pipeline owned by Plantation Pipe Line Company, Inc., a subsidiary of Kinder
Morgan Energy Partners, LP (collectively, Kinder Morgan), near Belton, South Carolina.
It is undisputed that the gasoline has seeped into nearby waterways, and the plaintiffs
allege that the gasoline has continued to travel a distance of 1000 feet or less from the
pipeline to those “navigable waters.”
Two plaintiff conservation groups brought a “citizen suit” under the Clean Water
Act (the CWA, or the Act), 33 U.S.C. §§ 1251–1387, alleging that Kinder Morgan was in
violation of the Act for polluting navigable waters without a permit and seeking relief to
remediate the ongoing pollution. This case requires us to determine whether citizens may
bring suit alleging a violation of the CWA when the source of the pollution, the pipeline,
is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance
through the earth via ground water and is being discharged into surface waterways.
The district court held that it lacked subject matter jurisdiction under the CWA,
because the pipeline has been repaired and the pollutants currently pass through ground
water to reach navigable waters. We conclude that the district court erred in holding that
it lacked jurisdiction, because citizens may bring suit under 33 U.S.C. § 1365(a) for
discharges of pollutants that derive from a “point source” and continue to be “added” to
navigable waters. We further hold that the plaintiffs have stated a valid claim for a
discharge under the CWA. Accordingly, we vacate the district court’s judgment, and
remand for further proceedings consistent with this opinion.
4
I.
A.
In 1972, Congress enacted the CWA to eliminate the discharge of certain
pollutants or “effluents” into the “navigable waters” of the United States. See S.
Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560, 563 (4th Cir.
2014); Piney Run Pres. Ass’n v. Cty. Comm’rs of Carroll Cty., 268 F.3d 255, 264–65 (4th
Cir. 2001). The CWA’s stated purpose is “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The federal
government’s prior regime of water pollution control focused primarily on measuring
direct injuries to the Nation’s waters using water quality standards. Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th Cir. 2000) (en banc)
[Friends of the Earth II]. In the CWA, however, Congress shifted its regulatory focus for
water pollution from water quality standards to limiting discharges of pollutants. See id.
One of the CWA’s central provisions establishes that “the discharge of any pollutant by
any person shall be unlawful.” 33 U.S.C. § 1311(a).
The Act authorizes exceptions to this general prohibition in the form of permits
issued in accordance with the National Pollutant Discharge Elimination System
(NPDES), which allows limited discharges. See 33 U.S.C. §§ 1311(a), 1342; S. Fla.
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004) (“[T]he
NPDES requires dischargers to obtain permits that place limits on the type and quantity
of pollutants.”); Friends of the Earth II, 204 F.3d at 151. Both the Environmental
Protection Agency (EPA) and state environmental control agencies may issue NPDES
5
permits. See Friends of the Earth II, 204 F.3d at 152. However, consistent with the
CWA’s general prohibition, a polluter does not violate the statute only when it exceeds
limitations in its permit. Instead, a polluter also may be in violation of the statute due to a
discharge for which the polluter could not have obtained any permit. See Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 561 (5th Cir. 1996) (“Nothing in
the CWA limits a citizen’s right to bring an action against a person who is allegedly
discharging a pollutant without a permit solely to those cases where EPA has
promulgated an effluent limitation or issued a permit that covers the discharge.”).
The CWA authorizes both citizens and government agencies to enforce the Act’s
provisions. Citizen suits under the CWA have the “central purpose of permitting citizens
to abate pollution when the government cannot or will not command compliance.”
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987).
The Act contains the following citizen suit provision:
[A]ny citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any
other governmental instrumentality or agency to the extent permitted by the
eleventh amendment to the Constitution) who is alleged to be in violation
of . . . an effluent standard or limitation under this chapter . . . .
33 U.S.C. § 1365(a) (emphasis added). An “effluent standard or limitation” is defined to
include the Act’s central prohibition on the “discharge of any pollutant” without a permit.
See 33 U.S.C. §§ 1365(f), 1311(a).
The Act sets forth a technical definition of the term “discharge of a pollutant,”
which is defined expansively to include “any addition of any pollutant to navigable
6
waters from any point source.” 1 33 U.S.C. § 1362(12)(A). A “point source” in turn is
defined as “any discernible, confined and discrete conveyance, including but not limited
to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container . . . .” 33
U.S.C. § 1362(14). The term “navigable waters” is defined in the CWA as “the waters of
the United States.” 33 U.S.C. § 1362(7). The Supreme Court has interpreted the term
“navigable waters” to mean more than waters that are navigable-in-fact, and to include,
for example, wetlands and related hydrological environs. See, e.g., Rapanos v. United
States, 547 U.S. 715, 730–31, 735 (2006) (plurality opinion) (observing that navigable
waters include more than traditionally navigable waters and may include certain
wetlands); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985)
(“Congress chose to define the waters covered by the Act broadly.”).
B.
The plaintiffs Upstate Forever and the Savannah Riverkeeper 2 (collectively, the
plaintiffs) allege that in late 2014, over 369,000 gallons of gasoline spilled from Kinder
Morgan’s underground pipeline, which extends over 1100 miles through parts of the
eastern United States. In December 2014, citizens in Anderson County, South Carolina,
1
Although Section 1311(a) refers to the “discharge of any pollutant” and Section
1362(12)(A) defines “discharge of a pollutant,” we construe these two terms to be
substantively identical and refer to the “discharge of a pollutant.”
2
Upstate Forever and the Savannah Riverkeeper are non-profit public interest
organizations that operate in Anderson County, South Carolina, where the spill occurred.
Upstate Forever has stated goals of developing clean water in the Upstate region of South
Carolina, and the Savannah Riverkeeper works to restore the lakes and tributaries in the
Savannah River watershed.
7
discovered dead plants, a petroleum odor, and pools of gasoline in the vicinity of the
pipeline. The plaintiffs allege that gasoline and gasoline toxins have seeped and continue
to seep into ground water, wetlands, and waterways in Anderson County and the
Savannah River watershed. They allege that although a reported 209,000 gallons were
recovered by the end of 2015, no significant amount of contaminants has been removed
since that time. Consequently, at the time that the plaintiffs filed their complaint, at least
160,000 gallons allegedly remained unrecovered. Kinder Morgan repaired the pipeline
shortly after the initial spill.
When Kinder Morgan’s pipeline broke six to eight feet underground, gasoline and
related contaminants spilled out into soil and ground water. The plaintiffs allege that
these contaminants are seeping into two nearby tributaries of the Savannah River,
Browns Creek and Cupboard Creek, and their adjacent wetlands. The pipeline broke less
than 1000 feet from Browns Creek and its adjacent wetland, and 400 feet from Cupboard
Creek and a second wetland. Both waterways and the wetlands are downgradient from
the spill site. The plaintiffs allege that gasoline pollutants from the pipeline are seeping
into navigable waters as defined by the CWA, including the above two creeks in
Anderson County, Broadway Lake, Lake Secession, Lake Russell, and the Savannah
River. 3
3
Kinder Morgan does not challenge the plaintiffs’ allegation that these waters,
including Browns Creek, Cupboard Creek, and their adjacent wetlands, constitute
navigable waters as defined by the CWA. 33 U.S.C. § 1362(7).
8
The plaintiffs allege that a “plume” of petroleum contaminants continues to
migrate into these waterways years later through ground water and various natural
formations at the spill site, including “seeps, flows, fissures, and channels.” Hazardous
gasoline contaminants have been detected on several occasions at the spill site in ground
water wells. Contaminants were also detected in Browns Creek as early as January 2015,
and additional tests in Browns Creek have reported high levels of contaminants on
several later dates in 2015 and in 2016.
Kinder Morgan has implemented certain remediation and recovery measures under
the guidance of the South Carolina Department of Health and Environmental Control
(DHEC). DHEC is the agency authorized to issue NPDES permits and oversee water
quality in South Carolina. See Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 629 F.3d 387, 390 (4th Cir. 2011) [Friends of the Earth III]; S.C. Code § 48-1-
100(B).
The plaintiffs allege that Kinder Morgan has failed to comply fully with DHEC’s
abatement instructions. They claim that although DHEC instructed Kinder Morgan to
test for pollution in March 2016, Kinder Morgan only began that additional testing after
the plaintiffs made their own visit to the spill site in August 2016. The plaintiffs further
allege that their testing conducted in August 2016 revealed that the levels of gasoline
contaminants in Browns Creek actually were increasing almost two years after the spill.
During their August 2016 visit to the area, oil sheens were visible on the surface of
Browns Creek, and devices used to absorb the oil had not been maintained and were
saturated with oil.
9
Kinder Morgan allegedly delayed by six months its submission to DHEC of the
required site remediation plan and site assessment, and also refused to comply with
another of DHEC’s water sampling requests. Publicly available data on DHEC’s website
indicate that DHEC sampled surface waters at Browns Creek in February 2017 and found
pollutants at three locations, each of which is being remediated. South Carolina
Department of Health and Environmental Control, Surface Water Sampling Event,
http://www.scdhec.gov/HomeAndEnvironment/Pollution/CleanUpPrograms/OngoingProj
ectsUpdates/PlantationPipeline/SurfaceWaterSamplingEvent/ (last visited Apr. 11, 2018).
The plaintiffs filed this suit in December 2016, alleging discharges of gasoline and
gasoline pollutants without a permit, in violation of the CWA under 33 U.S.C. §
1311(a). 4 The complaint includes allegations that the pipeline ruptured and caused a
discharge that has polluted, and continues to pollute, navigable waters by seeping from a
point source over a distance of 1000 feet or less through soil and ground water to nearby
tributaries and wetlands. The plaintiffs thus allege in their complaint two interrelated
violations of the CWA: (1) that Kinder Morgan has caused discharges of pollutants from
point sources to navigable waters without a permit; and (2) that Kinder Morgan has
caused discharges of pollutants that continue to pass through ground water with a “direct
hydrological connection” to navigable waters. The plaintiffs also allege that the
remediation actions taken to date by Kinder Morgan have been insufficient to abate the
4
Kinder Morgan does not contend that gasoline and related contaminants are not
pollutants under the CWA. See United States v. Hamel, 551 F.2d 107, 110–11 (6th Cir.
1977) (holding that the CWA definition of “pollutant” covers gasoline discharges).
10
pollution, and seek damages, declaratory relief, and injunctive relief requiring that Kinder
Morgan take further measures to control and abate the spill.
Kinder Morgan moved to dismiss the plaintiffs’ complaint under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure, contending both that the district
court lacked subject matter jurisdiction and that the plaintiffs had failed to state a claim
for relief. Addressing first the sufficiency of the plaintiffs’ pleadings, the district court
held that the plaintiffs had failed to state a claim because the pipeline had been repaired
and no longer was discharging pollutants “directly” into navigable waters. The court also
held that it lacked subject matter jurisdiction over the complaint, stating that the CWA
did not encompass the movement of pollutants through ground water that is
hydrologically connected to navigable waters. Accordingly, the court dismissed the
plaintiffs’ complaint on both grounds. The plaintiffs timely noted this appeal.
II.
On appeal, the plaintiffs contend that the district court erred in determining that
the continuing addition of pollutants to navigable waters is not an ongoing violation of
the CWA because the pipeline has been repaired. According to the plaintiffs, a claim for
a discharge of a pollutant, in violation of 33 U.S.C. § 1311(a), need not allege that the
pollutant is being discharged directly from the point source into navigable waters. They
assert that the CWA also prohibits the discharge of pollutants from a point source through
ground water that has a direct hydrological connection to navigable waters.
11
In response, Kinder Morgan contends that the district court did not err because the
violation ceased once the pipeline was repaired. Alternatively, Kinder Morgan asserts
that if seepage is ongoing, the pollution is seeping from nonpoint sources, namely, from
natural formations at the spill site. Kinder Morgan also argues that discharges into
navigable waters from hydrologically connected ground water do not fall within the
CWA’s definition of a “discharge of a pollutant” in 33 U.S.C. § 1362(12)(A). We
disagree with Kinder Morgan’s position.
A.
We review de novo the district court’s dismissal of the complaint under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Greenhouse v. MCG Capital Corp., 392
F.3d 650, 655 (4th Cir. 2004); Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768–69 (4th Cir. 1991). A district court should grant a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) “only if the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a
matter of law.” Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642,
647 (4th Cir. 1999) (citation omitted). To survive a motion to dismiss under Rule
12(b)(6), a plaintiff must “provide[] sufficient detail [ ] to show that he has a more-than-
conceivable chance of success on the merits.” Owens v. Balt. City State’s Attorneys
Office, 767 F.3d 379, 396 (4th Cir. 2014) (citation omitted).
As a threshold matter, a court first must determine whether it has jurisdiction to
entertain a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88–89 (1998). A
court’s determination of subject matter jurisdiction addresses whether the court has the
12
authority to entertain a particular kind of case, not whether a claim for relief is viable
under a particular construction of a statute. See id. at 89. Unless Congress has “clearly
state[d] that [a statutory limitation] is jurisdictional . . . courts should treat the restriction
as nonjurisdictional in character.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013) (citations and internal quotation marks omitted).
In the present case, the primary issue we consider is whether an indirect discharge
of a pollutant through ground water, which has a direct hydrological connection to
navigable waters, can support a theory of liability under the CWA. Because our answer
to this question largely depends on our construction of the statutory term “discharge of a
pollutant,” the question ordinarily would not be jurisdictional in nature. 5 However,
because courts have “jurisdiction” over CWA citizen suits only if the complaint alleges
an ongoing violation, Gwaltney, 484 U.S. at 64, we must address the question of an
ongoing violation before proceeding further in this case. Accordingly, we first address
whether the plaintiffs have alleged an ongoing violation and, if so, whether they
sufficiently have alleged a nexus between the source of the pollution and navigable
waters to state a claim for discharge of a pollutant under the CWA. See Steel Co., 523
U.S. at 88–90.
5
Had the plaintiffs alleged that ground water, of itself, falls within the meaning of
navigable waters under the CWA, we would be confronting a distinctly different question
here. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S.
159, 180 (2001) (referring to “navigable waters” as a “traditional jurisdictional term”).
However, in this case, the plaintiffs have alleged only that Kinder Morgan discharged
pollutants “via hydrologically connected groundwater to surface waters” (emphasis
added).
13
B.
The CWA authorizes citizens to seek injunctive relief only to abate a “continuous
or intermittent” violation. Gwaltney, 484 U.S. at 64; Friends of the Earth III, 629 F.3d at
402 (“We have instructed that a citizen plaintiff can prove an ongoing violation . . . by
proving violations that continue on or after the date the complaint is filed.” (citation
omitted)). Conversely, when a violation of the CWA is “wholly past,” the federal courts
do not have jurisdiction to entertain a citizen suit, even if the past discharge violated the
CWA. Gwaltney, 484 U.S. at 64. As we already have noted, the CWA’s citizen suit
provision is intended primarily to allow citizens “to abate pollution when the government
cannot or will not command compliance.” Id. at 62; cf. Middlesex Cty. Sewerage Auth. v.
Nat’l Sea Clammers Ass’n, 453 U.S. 1, 17 n.27 (1981) (“[P]rivate enforcement suits were
intended [often] to be limited to [ ] injunctive relief.”). The citizen suit provision thus
enables citizens to seek abatement of polluting discharges to further the CWA’s central
purpose, namely, “to restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters.” 33 U.S.C. § 1251(a).
In Gwaltney, the Supreme Court emphasized that the CWA, like other
environmental statutes, authorizes “prospective relief” that only can be attained while a
violation is ongoing and susceptible to remediation. 484 U.S. at 57; see also, e.g., 15
U.S.C. § 2619(a)(1) (authorizing citizen suits against persons “alleged to be in violation
of” the statute); 42 U.S.C. § 6972 (same). We applied the principles of Gwaltney in our
decision in Goldfarb v. Mayor of Baltimore, holding that a claim of an ongoing violation
supported a citizen suit under the Resource Conservation and Recovery Act of 1976
14
(RCRA), Pub. L. No. 94-580, 90 Stat. 2796 (1976) (codified as amended at 42 U.S.C. §§
6901–6992k), under a provision that is “identical” to the citizen suit authorization in the
CWA. 791 F.3d 500, 513 (4th Cir. 2015).
The plaintiffs in Goldfarb alleged that the City of Baltimore had stored hazardous
chemicals, which had leaked from the point of storage and had continued to migrate
through the soil in violation of the RCRA’s permitting standards. Id. at 512. In response
to the City’s contention that any RCRA violations were wholly past under the rationale of
Gwaltney, we observed that “although a defendant’s conduct that is causing a violation
may have ceased in the past . . . what is relevant is that the violation is continuous or
ongoing.” See id. at 511–13 (citing S. Rd. Assocs. v. IBM Corp., 216 F.3d 251, 255 (2d
Cir. 2000)). Accordingly, we held that the plaintiffs had alleged an ongoing violation of
the RCRA. Id.
Our analysis in Goldfarb regarding an ongoing violation is equally applicable
here. 6 Nothing in the language of the CWA suggests that citizens are barred from
seeking injunctive relief after a polluter has repaired the initial cause of the pollution.
When interpreting a statute, we attend first to the statute’s plain language. United States
v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). Like the RCRA, the CWA’s plain language
requires only that the citizen allege that the polluter “be in violation of” an “effluent
standard or limitation” under the Act. 33 U.S.C. § 1365(a); see Goldfarb, 791 F.3d at
6
We disagree with the dissent’s view that our decision in Goldfarb is not helpful.
We held in Goldfarb under an identical citizen suit provision that conduct causing a
violation need not be ongoing to state a claim, so long as the violation itself is ongoing.
791 F.3d at 513.
15
512–13. As noted above, an “effluent limitation” of the CWA includes any unpermitted
“discharge of a pollutant.” 33 U.S.C. §§ 1365(f), 1311(a). Accordingly, the relevant
violation here is the discharge of a pollutant, defined in the Act as “any addition of any
pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A).
Kinder Morgan’s gasoline pipeline unambiguously qualifies as a point source. 7 33
U.S.C. § 1362(14) (defining a point source to include a “pipe” or “conduit”). The
plaintiffs claim that pollutants originating from this point source continue to be “added”
to bodies of water that allegedly are navigable waters under the Act, including the two
creeks in Anderson County, adjacent wetlands, Broadway Lake, Lake Secession, Lake
Russell, and the Savannah River watershed. The CWA’s language does not require that
the point source continue to release a pollutant for a violation to be ongoing. The CWA
requires only that there be an ongoing “addition . . . to navigable waters,” regardless
whether a defendant’s conduct causing the violation is ongoing. 33 U.S.C. §
7
Under the dissent’s view, pollution becomes “nonpoint source pollution” not
covered by the CWA at the moment when the point source no longer actively releases the
pollutant. See, e.g., ONRC Action v. U.S. Bureau of Reclamation, 798 F.3d 933, 936 (9th
Cir. 2015) (noting that the CWA provides no direct mechanism for regulating “nonpoint
source pollution”). We are not persuaded by this argument, because the plaintiffs
adequately have alleged that the pipeline is a point source of the discharge, which
satisfies the CWA’s requirement that the alleged pollution be “from any point source.”
See 33 U.S.C. § 1362(12)(A) (emphasis added). Moreover, the cases relied on by the
dissent show that nonpoint source pollution arises from “dispersed activities over large
areas, and is not traceable to any single discrete source.” See, e.g., League of Wilderness
Defs./Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1184 (9th Cir.
2002); see also 33 U.S.C. 1314(f) (providing examples of nonpoint source pollution,
including “agricultural and silvicultural activities”). The plaintiffs here allege that the
pollution is traceable not to dispersed activities and nonpoint sources but to Kinder
Morgan’s pipeline, a discrete source.
16
1362(12)(A). See Goldfarb, 791 F.3d at 513; IBM Corp., 216 F.3d at 254 (noting under
identical RCRA citizen suit provision that “defendant’s current activity at the site is not a
prerequisite for finding a current violation”).
The CWA’s term “discharge of a pollutant” is a statutory term of art precisely
defined in the CWA. Cf. Riverside Bayview Homes, Inc., 474 U.S. at 133 (noting that
statutory definition of “navigable waters” in CWA makes ordinary meaning of those
words less important). The definition does not place temporal conditions on the
discharge of a pollutant from a point source. Nor does the definition limit discharges
under the Act to additions of pollutants to navigable waters from a point source that
continues actively to release such pollutants. Instead, the precondition for alleging a
cognizable discharge of a pollutant is only that the plaintiff allege an ongoing addition to
navigable waters originating from a point source. 33 U.S.C. § 1362(12)(A). Moreover,
as we explain below, the CWA is not limited to discharges of pollutants “directly” from
the point source to navigable waters. See, e.g., Hawai’i Wildlife Fund v. Cty. of Maui,
No. 15-17447, 2018 WL 1569313, at *7–*8 (9th Cir. Feb. 1, 2018). Necessarily, when a
discharge is indirect, there will be a delay between the time at which pollution leaves the
point source and the time at which it is added to navigable waters. However, nothing in
the CWA’s language indicates that such a delay prevents the pollution from constituting
an ongoing violation for purposes of a citizen suit, as long as pollutants continue to be
“added” to navigable waters. See 33 U.S.C. § 1362(12)(A). The plaintiffs have alleged
such an ongoing addition here.
17
The CWA is a strict liability statute. Friends of the Earth II, 204 F.3d at 151. As
noted above, Congress set forth in the Act its intention that “the discharge of pollutants
into the navigable waters be eliminated,” 33 U.S.C. § 1251(a)(1), not that the originating
source of pollutants be corrected. Thus, remedial efforts taken in good faith “do[] not
ipso facto establish the absence of federal jurisdiction over a citizen suit.” Am. Canoe
Ass’n v. Murphy Farms, 412 F.3d 536, 540 (4th Cir. 2005). To protect the nation’s
waters under the CWA, abatement of a pollutant requires more than the repair of a
pipeline, and the need for such abatement continues so long as the contaminant continues
to flow into navigable waters. See Gwaltney, 484 U.S. at 62 (explaining that CWA’s
citizen suit provision has “the central purpose of permitting citizens to abate pollution”).
Thus, the fact that a ruptured pipeline has been repaired, of itself, does not render the
CWA violation wholly past. 8
Our conclusion is not altered by Kinder Morgan’s citation to cases from other
circuits. Those decisions were based on materially different facts. For example, in
Hamker v. Diamond Shamrock Chemical Co., the Fifth Circuit examined a complaint
containing allegations of a discharge of oil into ground water from the defendant’s pipe,
rather than a discharge reaching navigable waters. See 756 F.2d 392, 397 (5th Cir. 1985).
8
The dissent relies on Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133(10th Cir. 2005), for its conclusion that this is an “ongoing migration” case that does not
fall under the CWA’s citizen suit provision. However, that court did not hold that an
ongoing migration of pollutants cannot constitute a continuing violation of the CWA, but
rather noted that the case before the court did not involve a simple ongoing migration of
pollutants. Id. at 1140.
18
As the court observed, the complaint alleged only that the discharged oil was “leaking
into ground water” and “grasslands,” not into navigable waters. 9 Id. Likewise, the
Second Circuit held that continuing decomposition of “lead shot” in the Long Island
Sound is not a “present violation” of the CWA. Conn. Coastal Fishermen’s Ass’n v.
Remington Arms Co., 989 F.2d 1305, 1312–13 (2d Cir. 1993). That holding pertained to
whether the continuing effects of pollutants already “deposited” into a navigable water
constituted a continuing violation. Id. at 1313. In contrast, the plaintiffs allege here that
pollutants continue to be added to navigable waters, a violation encompassed within the
Act’s statutory definition. Accordingly, we conclude that the plaintiffs have alleged an
ongoing violation of 33 U.S.C. § 1311(a), and that the district court erred in dismissing
their complaint for lack of subject matter jurisdiction.
C.
i.
We turn to consider the question of first impression in this Circuit whether a
discharge of a pollutant that moves through ground water before reaching navigable
waters may constitute a discharge of a pollutant, within the meaning of the CWA.
Initially, we observe that a discharge of a pollutant under the Act need not be a discharge
“directly” to a navigable water from a point source. In Rapanos v. United States, the
9
Moreover, to the extent that Hamker’s reasoning suggests that an ongoing
violation requires that the point source continually discharge a pollutant, Hamker
contravenes our decision in Goldfarb, and we decline to adopt the Fifth Circuit’s
approach. See Goldfarb, 791 F.3d at 513.
19
Supreme Court considered the kinds of connected waters covered by the CWA. See 547
U.S. at 732–38. Justice Scalia, writing for a plurality of four Justices, concluded that
certain wetlands and intermittent streams did not themselves fall within the meaning of
navigable waters under the CWA. 10 See id. at 739. However, when analyzing the kinds
of connected waters that might fall under the CWA, 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.’” Id. at 743
(quoting 33 U.S.C. § 1362(12)(A)). Accordingly, he observed that federal courts
consistently have held that a discharge of a pollutant “that naturally washes downstream
likely violates § 1311(a).” Id. (emphasis removed) (citing United States v. Velsicol
Chem. Corp., 438 F. Supp. 945, 946–47 (W.D. Tenn. 1976)).
The plain language of the CWA requires only that a discharge come “from” a
“point source.” See 33 U.S.C. § 1362(12)(A). Just as the CWA’s definition of a
10
The district court here rejected the plaintiffs’ argument that the CWA covers a
discharge through soil and ground water, because the court concluded that such an
argument relies on an impermissible “Land is Waters” approach to CWA jurisdiction. In
reaching this conclusion, the district court relied on the plurality opinion in Rapanos,
which characterized the plaintiffs’ theory there that “intermittent streams” were navigable
waters as a so-called “Land is Waters” approach, and rejected that approach. 547 U.S. at
732–34. However, Justice Kennedy’s controlling concurrence in Rapanos did not join
the plurality in rejecting the plaintiffs’ theory as a “Land is Waters” approach to CWA
jurisdiction. 547 U.S. at 768–70; United States v. Robertson, 875 F.3d 1281, 1292 (9th
Cir. 2017) (holding that Justice Kennedy’s “significant nexus” test controls after
Rapanos). Moreover, the “Land is Waters” theory in Rapanos involved whether certain
bodies of water themselves qualified as navigable waters, which is not at issue here. 547
U.S. at 739 (plurality opinion). Thus, irrespective whether a “Land is Waters” approach
remains viable under the CWA following Rapanos, the plaintiffs’ theory in the present
case does not rely on such an approach.
20
discharge of a pollutant does not require a discharge directly to navigable waters,
Rapanos, 547 U.S. at 743, neither does the Act require a discharge directly from a point
source, 11 see 33 U.S.C. § 1362(12)(A). The word “from” indicates “a starting point: as
(1) a point or place where an actual physical movement . . . has its beginning.”
Webster’s Third New International Dictionary 913 (Philip Babcock Gove et al. eds.,
2002) (emphasis added); see also The American Heritage Dictionary of the English
Language 729 (3d ed. 1992) (noting “from” indicates a “starting point” or “cause”).
Under this plain meaning, a point source is the starting point or cause of a discharge
under the CWA, but that starting point need not also convey the discharge directly to
navigable waters.
To hold otherwise effectively would require that any discharge of a pollutant
cognizable under the CWA be seamlessly channeled by point sources until the moment
the pollutant enters navigable waters. The Second Circuit rejected such an interpretation
of the CWA, and we agree with that court’s reasoning. In Waterkeeper Alliance, Inc. v.
11
The dissent relies on cases that include language stating that a point source must
“convey” or “introduce” pollutants to navigable waters. See, e.g., Miccosukee, 541 U.S.
at 105 (observing that “a point source . . . need only convey the pollutant to ‘navigable
waters’”); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d
481, 491 (2d Cir. 2001) (stating that a “point source must introduce the pollutant into
navigable water” (emphasis omitted) (citation omitted)). We disagree with any
suggestion that these cases support the conclusion that the CWA requires a discharge
from the point source directly to navigable waters. First, these cases simply did not
confront the question of an indirect discharge of pollutants through land or ground water
over time. Second, many of these cases were decided before Rapanos clarified that the
CWA’s language does not require a direct discharge. See 547 U.S. at 743; Hawai’i
Wildlife Fund, 2018 WL 1569313, at *7–*8. Finally, as we explain below, the point
source here allegedly is “conveying” and “introducing” pollutants to the navigable
waters, albeit indirectly, because it is the undisputed cause of the addition.
21
EPA, the Second Circuit held that if courts required both the cause of the pollution and
any intervening land to qualify as point sources, such an interpretation would, in practice,
“impose a requirement not contemplated by the Act: that pollutants be channelized not
once but twice before the EPA can regulate them.” 399 F.3d 486, 510–11 (2d Cir. 2005);
see also Concerned Area Residents for Env’t v. Southview Farm, 34 F.3d 114, 119 (2d
Cir. 1994) (holding that liquid manure that passed from tankers through intervening fields
to nearby waters constituted a discharge from a point source). The Ninth Circuit likewise
rejected the theory that the CWA creates liability for discharges “only . . . where the point
source itself directly feeds into the navigable water—e.g., via a pipe or a ditch.” Hawai’i
Wildlife Fund, 2018 WL 1569313, at *7.
The logic of Waterkeeper Alliance and Hawai’i Wildlife Fund is equally
applicable here. The plaintiffs have alleged that the pipeline is the starting point and
cause of pollution that has migrated and is migrating through ground water to navigable
waters. Accordingly, we hold in agreement with the Second and Ninth Circuits that to
qualify as a discharge of a pollutant under the CWA, that discharge need not be
channeled by a point source until it reaches navigable waters.
ii.
Although we conclude that an indirect discharge may fall within the scope of the
CWA, such discharges must be sufficiently connected to navigable waters to be covered
under the Act. As the Ninth Circuit recently held, a discharge that passes from a point
source through ground water to navigable waters may support a claim under the CWA.
Hawai’i Wildlife Fund, 2018 WL 1569313, at *8. However, a discharge through ground
22
water does not always support liability under the Act. Id. Instead, the connection
between a point source and navigable waters must be clear.
The EPA has developed the term “direct hydrological connection” to identify for
purposes of the CWA whether there is a clear connection between the discharge of a
pollutant and navigable waters when the pollutant travels through ground water. The
EPA consistently has taken the position that the Act applies to discharges “from a point
source via ground water that has a direct hydrologic connection to surface water.”
National Pollutant Discharge Elimination System Permit Regulation and Effluent
Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, 66
Fed. Reg. 2960, 3015 (proposed Jan. 12, 2001) [CAFOs Standards]; see also
Amendments to the Water Quality Standards Regulation That Pertain to Standards on
Indian Reservations, 56 Fed. Reg. 64,876, 64,892 (Dec. 12, 1991) (“[T]he Act requires
NPDES permits for discharges to groundwater where there is a direct hydrological
connection between groundwaters and surface waters.”). The assessment of the
directness of a hydrological connection is a “factual inquiry,” in which “time and
distance” are relevant, as well as factors such as “geology, flow, and slope.” CAFOs
Standards, 66 Fed. Reg. at 3017. This interpretation by the EPA of its statutory authority
“warrants respectful consideration,” especially in the context of a “complex and highly
technical regulatory program.” Wis. Dep’t of Health & Family Servs. v. Blumer, 534
U.S. 473, 497 (2002) (citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994)); see also Riverside Bayview Homes, Inc., 474 U.S. at 131.
23
In light of the above considerations, we hold 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. 12
This determination necessarily is fact-specific. In the present case, the plaintiffs have
alleged that pollutants are seeping into navigable waters in Anderson County about 1000
feet or less from the pipeline. This extremely short distance, if proved, provides strong
factual support for a conclusion that Kinder Morgan’s discharge is covered under the
CWA. See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1137, 1148–50 (10th
Cir. 2005) (holding that a discharge that passed through a 2.5-mile tunnel between mine
shaft and navigable water could be covered under CWA).
Also as a matter of undisputed fact, the ruptured pipeline caused the pollution at
issue here. Kinder Morgan does not assert that the pollutants found in the creeks and
wetlands have an independent or contributing cause. And this is not a case in which
pollutants are diluted while passing through a labyrinth of underground “tunnel geology,”
El Paso Gold Mines, 421 F.3d at 1150, or are otherwise diverted from their natural
course, see Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (holding
that natural flow of “[g]ravity . . . resulting in a discharge into a navigable body of water,
12
The Ninth Circuit has held that an indirect discharge must be “fairly traceable”
from the point source to navigable waters. Hawai’i Wildlife Fund, 2018 WL 1569313, at
*8 n.3. We see no functional difference between the Ninth Circuit’s fairly traceable
concept and the direct hydrological connection concept developed by EPA that we adopt
today, which as we explain below includes a concept of traceability. In fact, the direct
hydrological connection concept may be viewed as a narrower application of the same
principle, addressing point source discharges through ground water.
24
may be part of a point source discharge if the [polluter] at least initially collected or
channeled the water and other materials”).
Additionally, the plaintiffs have alleged a traceable discharge from the ruptured
pipeline. The traceability of a pollutant in measurable quantities is an important factor in
the determination whether a particular discharge is covered by the CWA. See Hawai’i
Wildlife Fund, 2018 WL 1569313, at *8 (holding that claim for indirect discharge must
show that pollution is “fairly traceable” to the point source); El Paso Gold Mines, 421
F.3d at 1140 n.4 (noting that pollution that is “not traceable to a single, identifiable
source or conveyance” is nonpoint source pollution). And Kinder Morgan does not
dispute that pollutants originating from the gasoline pipeline already have been detected
in the waters of Anderson County.
As we have noted, the CWA’s stated purpose is “to restore . . . the chemical,
physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and the
statute establishes a regime of zero tolerance for unpermitted discharges of pollutants, 33
U.S.C. § 1311(a). In contrast, if the presence of a short distance of soil and ground water
were enough to defeat a claim, polluters easily could avoid liability under the CWA by
ensuring that all discharges pass through soil and ground water before reaching navigable
waters. Such an outcome would greatly undermine the purpose of the Act. Thus, we
hold that the plaintiffs plausibly have alleged a direct hydrological connection between
the ground water and navigable waters to state a claim for a discharge of a pollutant
under 33 U.S.C. § 1311(a).
25
We find no merit in Kinder Morgan’s concern that our holding will result in
unintended coverage under the CWA of any discharge of a pollutant into ground water.
We do not hold that the CWA covers discharges to ground water itself. Instead, we hold
only that an alleged discharge of pollutants, reaching navigable waters located 1000 feet
or less from the point source by means of ground water with a direct hydrological
connection to such navigable waters, falls within the scope of the CWA. 13 Accordingly,
the plain language and purpose of the Clean Water Act direct our conclusion in the
present case that the district court has jurisdiction to entertain the plaintiffs’ claim under
33 U.S.C. § 1365(a), and that the plaintiffs have stated a claim for a violation of the Act’s
prohibition of the “discharge of any pollutant.” 33 U.S.C. § 1311(a).
III.
For these reasons, we vacate the district court’s decision and remand the case for
further proceedings consistent with this opinion.
VACATED AND REMANDED
13
We also note that federal courts in several states, including some within this
Circuit, have upheld in citizen suits the CWA’s coverage of ground water-related
discharges within those jurisdictions. See, e.g., Sierra Club v. Va. Elec. & Power Co.,
247 F. Supp. 3d 753, 762 (E.D. Va. 2017); Ohio Valley Envtl. Coal. Inc. v. Pocahontas
Land Corp., 2015 WL 2144905, at *8 (S.D.W. Va. May 7, 2015); Yadkin Riverkeeper,
Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428, 445 (M.D.N.C. 2015); see also
Tenn. Riverkeeper v. Hensley-Graves Holdings, LLC, No. 2:13-CV-877-LSC, at 13–18
(N.D. Ala. Aug. 20, 2013).
26
FLOYD, Circuit Judge, dissenting:
Based on allegations that pollutants are being added into navigable waters, the
majority concludes that the Appellants have adequately alleged a cognizable and ongoing
Clean Water Act (“CWA”) violation. Maj. Op. at 19. While this conclusion may seem
intuitive at first glance, close examination of the text, history, and structure of the CWA
reveals that not every addition of pollution amounts to a CWA violation—much less an
ongoing CWA violation. Congress precisely defined a CWA violation as the addition of
pollutants from a point source, and for there to be an ongoing CWA violation, there must
be an ongoing addition of pollutants from a point source into navigable waters. See 33
U.S.C. § 1362(12). Here, the only point source at issue—Kinder Morgan’s pipeline—has
been repaired and is not currently adding any pollutants into navigable waters, thus
negating a necessary element of a CWA violation. Because there is no ongoing violation
under the meaning of the CWA, I would affirm the district court’s dismissal of the
complaint for lack of subject matter jurisdiction and for failure to state a claim upon
which relief can be granted. I respectfully dissent.
I.
A.
The parties’ pleadings and briefs reveal the following facts. In late 2014, residents
of Belton, South Carolina, discovered that Kinder Morgan’s pipeline released a large
amount of gasoline and contaminated the nearby ground (“spill site”). Kinder Morgan
repaired the pipeline within a few days of discovering the leak and began remediation
27
efforts that are ongoing to this day under the supervision of the South Carolina
Department of Health and Environmental Control (DHEC). Kinder Morgan has
recovered over 209,000 gallons of gasoline, but over 160,000 gallons of gasoline remain
unrecovered at the spill site. Kinder Morgan’s repaired pipeline is not currently leaking
any additional gasoline. Nevertheless, as the gasoline from the spill site gets washed off
by ground water or seeps through the ground from the spill site, gasoline is being
introduced to navigable waters. In December 2016, the environmental groups Upstate
Forever and Savannah Riverkeeper (collectively, “Appellants”) initiated a citizen suit
against Kinder Morgan, alleging an ongoing CWA violation. After full briefing on the
matter, on April 20, 2017, the district court dismissed the Appellants’ complaint for lack
of subject matter jurisdiction and failure to state a claim.
B.
We review a district court’s order dismissing a complaint for lack of subject
matter jurisdiction and for failure to state a claim de novo. Goldfarb v. Mayor & City
Council of Balt., 791 F.3d 500, 505 (4th Cir. 2015). Rule 12(b)(1) of the Federal Rules
of Civil Procedure allows a party to move to dismiss a plaintiff’s complaint for lack of
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). To determine whether subject
matter jurisdiction exists, courts are “to regard the pleadings’ allegations as mere
evidence . . . and may consider evidence outside of the pleadings without converting the
proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving plaintiff bears
the burden of proving subject matter jurisdiction, and “the moving party should prevail
28
only if the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.” Id.
Rule 12(b)(6) allows a party to move to dismiss the plaintiff’s complaint for
failure to state a claim. Fed. R. Civ. P. 12(b)(6). When a complaint is attacked by a Rule
12(b)(6) motion, “a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions . . . .” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotation marks omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id.
II.
Congress enacted the CWA, 33 U.S.C. § 1251 et seq., “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251.
To accomplish these goals, Congress comprehensively reshaped the federal water
regulatory scheme in various ways. See EPA v. California ex rel. State Water Res.
Control Bd., 426 U.S. 200, 203–4 (1976).
First, Congress concentrated the federal regulatory effort on curtailing point
source pollution—that is, pollution from “discernible, confined and discrete
conveyance[s],” 33 U.S.C. § 1362(14)—“which tended to be more notorious and more
easily targeted,” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 780 (9th Cir.
2008). Second, Congress established the National Pollution Discharge Elimination
System (NPDES) which “requires dischargers to obtain permits that place limits on the
type and quantity of pollutants that can be released into the Nation’s waters.” S. Fla.
29
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). Third,
Congress sought to ensure compliance by instituting an enforcement mechanism under
which state and federal governments bear the primary responsibility for policing past and
ongoing CWA violations, and private citizens provide supplementary enforcement for
ongoing violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 52–53, 58 (1987); The Piney Run Preservation Ass’n v. The Cty. Comm’rs of
Carroll Cty., Md., 523 F.3d 453, 456 (4th Cir. 2008).
While the CWA includes other important features, it bears explaining these three
central features in detail, as they are critical to this appeal.
A.
In drafting the CWA, Congress focused the federal regulatory effort on reducing
point source pollution by making the existence of, and the addition of pollutants from, a
point source a sine qua non element of a CWA violation. The text and structure of the
CWA unambiguously lead to this conclusion.
At the outset, it is important to note that “Congress consciously distinguished
between point source and nonpoint source discharges.” Appalachian Power Co. v. Train,
545 F.2d 1351, 1373 (4th Cir. 1976). Point source pollution is pollution from “any
discernible, confined and discrete conveyance.” 33 U.S.C. § 1362(14). The non-
exhaustive list of examples of a point source in the CWA includes “pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft.” Id. All other sources of pollution—
namely, those that are not “discernible, confined and discrete,” id.—are considered
30
nonpoint sources. Or. Nat. Desert Ass’n, 550 F.3d at 780. In other words, nonpoint
source pollution “is defined by exclusion and includes all water quality problems” that
are not from a point source. Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 166 (D.C.
Cir. 1982).
Unlike point source pollution, nonpoint source pollution “arises from many
dispersed activities over large areas, and is not traceable to any single discrete source.”
League of Wilderness Defs./Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181,
1183 (9th Cir. 2002). “Congress had classified nonpoint source pollution as runoff
caused primarily by rainfall around activities that employ or create pollutants.” Cordiano
v. Metacon Gun Club, Inc., 575 F.3d 199, 220 (2d Cir. 2009) (internal quotation marks
omitted). Indeed, a common example of nonpoint source pollution is rain washing
pollution off the highway and carrying it along “by runoff in a polluted soup[] [to] creeks,
rivers, bays, and the ocean.” Forsgren, 309 F.3d at 1183. The EPA guidance on
nonpoint source pollution similarly confirms that “[i]n practical terms, nonpoint source
pollution does not result from a discharge at a specific, single location (such as a single
pipe) but generally results from land runoff, precipitation, atmospheric deposition, or
percolation.” Cordiano, 575 F.3d at 220 (quoting EPA Office of Water, Nonpoint Source
Guidance 3 (1987)).
That Congress intended to target point source pollution, rather than nonpoint
source pollution, is evident from the text of the CWA, which makes the existence of a
point source a required element of a CWA violation. 33 U.S.C. § 1311(a) provides that
“[e]xcept as in compliance with [the various section in the CWA], the discharge of any
31
pollutant by any person shall be unlawful.” “Discharge of a pollutant” is a term of art
under the CWA, with a more precise meaning than under ordinary parlance. Cf. Burgess
v. United States, 553 U.S. 124, 129 (2008) (“Statutory definitions control the meaning of
statutory words . . . in the usual case.” (internal quotation marks omitted)). Congress
defined “discharge of a pollutant” as “any addition of any pollutant to navigable waters
from any point source.” 33 U.S.C. § 1362(12) (emphasis added).
In summarizing the requirements under these two statutory provisions, 33 U.S.C.
§§ 1311(a), 1362(12), courts have consistently restated the elements of a CWA violation
as “(1) discharg[ing] (2) a pollutant (3) into navigable waters (4) from a point source (5)
without a [NPDES] permit.” Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133,
1142 (10th Cir. 2005) (emphasis added); see also Parker v. Scrap Metal Processors, Inc.,
386 F.3d 993, 1008 (11th Cir. 2004); Comm. To Save Mokelumne River v. E. Bay Mun.
Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993); Nat’l Wildlife Fed’n v. Consumer Power
Co., 862 F.2d 580, 583 (6th Cir. 1988) (“[F]or NPDES requirements to apply to any
given set of circumstances, ‘five elements must be present: (1) a pollutant must be (2)
added (3) to navigable waters (4) from (5) a point source.’ ” (quoting Gorsuch, 693 F.2d
at 165)); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir. 1983).
The “point source need not be the original source of the pollutant; it need only convey the
pollutant to ‘navigable waters[.] . . .’ ” Miccosukee Tribe, 541 U.S. at 105. For there to
be a conveyance or “addition” of pollutants under the meaning of the CWA, “a ‘point
source must introduce the pollutant into navigable water from the outside
world[,]’ . . . [that is,] any place outside the particular body of water to which pollutants
32
are introduced.” Catskill Mts. Chapter of Trout Unlimited, Inc. v. City of New York, 273
F.3d 481, 491 (2d Cir. 2001) (quoting Gorsuch, 693 F.2d at 165). As these definitions
unambiguously show, a critical element of a CWA violation is that the pollutant comes
from a point source.
Furthermore, the general structure of the CWA confirms that Congress sought to
focus on point source pollution. “A central provision of the [CWA] is its requirement
that individuals, corporations, and governments secure [NPDES] permits before
discharging pollution from any point source into the navigable waters . .  .” Decker v.
Nw. Envtl. Def. Ctr., 568 U.S. 597, 602 (2013). Under the CWA, point source pollution
is regulated by the EPA through the NPDES permitting program, see 33 U.S.C. § 1342,
and nonpoint source pollution is regulated by the states, see 33 U.S.C. § 1329; Cordiano,
575 F.3d at 219–220; Gorsuch, 693 F.2d at 165–66. Based on this structure, courts have
consistently recognized that “nonpoint sources of pollution have not generally been
targeted by the CWA . . . .” Or. Nat. Desert Ass’n, 550 F.3d at 785. In drafting the
CWA, “[w]hile Congress could have defined a ‘discharge’ to include generalized
runoff, . . . it chose to limit the permit program’s application to the . . . [point source]
category.” Id. (quoting William L. Andreen, Water Quality Today—Has the Clean Water
Act Been A Success?, 55 Ala. L. Rev. 537, 562 (2004)). In sum, the fact that “the [CWA]
assigns the primary responsibility for regulating point sources to the EPA and nonpoint
sources to the states,” Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 299 (3d Cir. 2015),
plainly shows that Congress’s main focus in enacting the CWA was the reduction of
point source pollution.
33
A careful review of the CWA’s text and structure reveals that Congress sought to
target point source pollution and thus included point source as an indispensable element
of a CWA violation. 1
B.
Congress chose the NPDES permitting program as a central means of controlling
point source pollution. “[I]ndividuals, corporations, and governments [must] secure
[NPDES] permit[s] before discharging pollution from any point source into the navigable
waters of the United States.” Decker, 568 U.S. at 602.
Under the CWA, the state and federal governments act as partners in
administering the NPDES program and issuing the permits. Arkansas v. Oklahoma, 503
1
While the text and structure speak unambiguously, for those who may find
legislative history persuasive, the CWA’s legislative history similarly confirms
Congress’s focus on point source pollution. Congress added the term “point source” “as
a means of identifying industrial polluters” to narrow and clarify the scope of the CWA.
United States v. Plaza Health Labs., Inc., 3 F.3d 643, 647 (2d Cir. 1993). The Senate
Report for the CWA explains:
In order to further clarify the scope of the regulatory procedures in the Act
[sic] the Committee has added a definition of point source to distinguish
between control requirements where there are specific confined
conveyances, such as pipes, and control requirements which are imposed to
control runoff. The control of pollutants from runoff is applied pursuant to
Section 209 and the authority resides in the State or local agency.
S. Rep. No. 92-414 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3744. The
narrowing of Congress’s regulatory focus resulted “in part because nonpoint sources
were far more numerous and more technologically difficult to regulate,” whereas “point
sources . . . tended to be more notorious and more easily targeted.” Or. Nat. Def. Ass’n,
550 F.3d at 780; see also S. Rep. No. 92-414, at 39 (“[M]any nonpoint sources of
pollution are beyond present technology of control”). Whatever the reason, the
legislative history confirms that Congress intended to focus on point source pollution in
enacting the CWA.
34
U.S. 91, 101 (1992). An NPDES permit can be issued by either the EPA or a state
agency. The EPA “initially administers the NPDES permitting system for each State, but
a State may apply for a transfer of permitting authority to state officials.” Nat’l Ass’n of
Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650 (2007). “If authority is transferred,
then state officials—not the federal EPA—have the primary responsibility for reviewing
and approving NPDES discharge permits, albeit with continuing EPA oversight.” Id.
An NPDES permit “place[s] limits on the type and quantity of pollutants that can
be released into the Nation’s waters,” Miccosukee Tribe, 541 U.S. at 102, and “defines,
and facilitates compliance with, and enforcement of, . . . a discharger’s obligations under
the [CWA],” California ex rel. State Water Res. Control Bd., 426 U.S. at 205. The EPA
promulgates the “effluent limitations” that “restrict the quantities, rates, and
concentrations of specified substances which are discharged.” Arkansas, 503 U.S. at 101;
see also 33 U.S.C. §§ 1311, 1314. The states, with substantial guidance from EPA,
promulgate the “water quality standards” that express the states’ “desired condition of a
waterway . . . so that numerous point sources, despite individual compliance with effluent
limitations, may be further regulated to prevent water quality from falling below
acceptable levels.” Id. (internal quotation marks); see also 33 U.S.C. § 1313. In addition
to listing the effluent limitations and water quality standards, NPDES permits also require
“compliance with the inspection, reporting and monitoring requirements of the [CWA] as
outlined in 33 U.S.C. § 1318.” Menzel v. Cty. Util. Corp., 712 F.2d 91, 94 (4th Cir.
1983). To the benefit of NPDES permit holders, the CWA “shields NPDES permit
holders from liability if their discharges comply with their permits.” Ohio Valley Envtl.
35
Coal. v. Fola Coal Co., LLC, 845 F.3d 133, 135 (4th Cir. 2017). The NPDES permitting
scheme thus constitutes “[t]he primary means for enforcing these limitations and
standards.” Arkansas, 503 U.S. at 101.
NPDES permitting is, however, not only ill-equipped to address, but also
inapplicable to, nonpoint source pollution. Unlike a point source, nonpoint source
pollution “arises from many dispersed activities over large areas, and is not traceable to
any single discrete source.” Forsgren, 309 F.3d at 1184. And for that reason, nonpoint
source pollution “is very difficult to regulate through individual permits.” Id. More
specifically, it would be difficult to mandate compliance with inspection, reporting, and
monitoring requirements given that nonpoint source pollution cannot be traced to discrete
sources. Thus, sensibly, the CWA does not attempt to regulate nonpoint source pollution
through the NPDES permitting. See El Paso, 421 F.3d at 1140 n.4 (observing that
“[g]roundwater seepage that travels through fractured rock would be nonpoint source
pollution, which is not subject to NPDES permitting”); Forsgren, 309 F.3d at 1183
(stating that nonpoint source pollution “is regulated in a different way and does not
require [an NPDES] permit); Gorsuch, 693 F.2d at 166 (accepting the EPA’s explanation
of the CWA that nonpoint source pollution “includes all water quality problems not
subject to § 402 [NPDES permit program]”).
In sum, Congress chose the NPDES permitting scheme as the primary means of
controlling point source pollution, which is the focus of the CWA regulatory scheme.
36
C.
Congress also instituted a comprehensive enforcement scheme to ensure
compliance with the CWA, in which the state and federal governments bear the primary
responsibility for enforcement, but private citizens have limited supplementary
enforcement authority.
Under the CWA, “the primary responsibility for enforcement rests with the state
and federal governments . . . .” The Piney Run, 523 F.3d at 456 (quoting Sierra Club v.
Hamilton Cty. Bd. of Cty. Comm’rs, 504 F.3d 634, 637 (6th Cir. 2007)). 33 U.S.C.
§ 1319 vests the EPA with a broad range of enforcement tools—criminal, civil, and
administrative. See, e.g., Sackett v. EPA, 566 U.S. 120, 122 (2012) (“If the EPA
determines that any person is in violation of [the CWA], the Act directs the agency either
to issue a compliance order or to initiate a civil enforcement action.”); United States v.
Schallom, 998 F.2d 196, 198 (4th Cir. 1993) (per curiam) (affirming a criminal
conviction for discharging pollutants without a permit in violation of 33 U.S.C.
§ 1319(c)(2)). The EPA may initiate administrative and civil proceedings for both
present and past CWA violations. See Gwaltney, 484 U.S. at 58.
The CWA also includes a citizen suit provision, 33 U.S.C. § 1365(a), under which
“private citizens provide a second level of enforcement and can serve as a check to
ensure the state and federal governments are diligent in prosecuting [CWA] violations.”
The Piney Run, 523 F.3d at 456 (quoting Hamilton Cty. Bd. of Cty. Comm'rs, 504 F.3d at
637). Under the citizen suit provision, “any citizen may commence a civil action . . .
against any person . . . who is alleged to be in violation of” the CWA. 33 U.S.C.
37
§ 1365(a)(1). However, “the citizen suit is meant to supplement rather than to supplant
governmental action,” Gwaltney, 484 U.S. at 60, and, therefore, Congress limited a
citizen’s ability to enforce the CWA in various ways. 2
One important jurisdictional limit on a citizen’s ability to enforce the CWA is that
she may only bring a suit for an ongoing CWA violation but not for a past violation. Id.
at 57. The text of the CWA authorizes a citizen suit only against someone “alleged to be
in violation of” the CWA. 33 U.S.C. § 1365(a)(1). The Supreme Court concluded that
“[t]he most natural reading of ‘to be in violation’ is a requirement that citizen-plaintiffs
allege a state of either continuous or intermittent violation—that is, a reasonable
likelihood that a past polluter will continue to pollute in the future.” Gwaltney, 484 U.S.
at 57 (emphasis added). The Gwaltney Court further stated that “Congress could have
phrased its requirement in language that looked to the past (‘to have violated’), but it did
not choose this readily available option.” Id. In other words, Congress did not authorize
a citizen to enforce the CWA for “wholly past violations.” Id.. The Supreme Court
observed that allowing citizens to pursue wholly past violations “could undermine the
2
A citizen invoking the CWA citizen suit provision must first show that she has
Article III and statutory standing to bring the suit. See 33 U.S.C. § 1365(g); Friends of
the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir. 2000) (en
banc). Moreover, the citizen may not commence suit prior to 60 days after giving notice
of the alleged violation to the appropriate governmental authority and the alleged
polluter. 33 U.S.C. § 1365(b)(1)(A). Lastly, 33 U.S.C. § 1365(b)(1)(B) “bars a citizen
from suing if the EPA or the State has already commenced, and is ‘diligently
prosecuting,’ an enforcement action.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
Inc., 528 U.S. 167, 175 (2000). Congress instituted these restrictions on the CWA citizen
suit provision “to strike a balance between encouraging citizen enforcement of
environmental regulations and avoiding burdening the federal courts with excessive
numbers of citizen suits.” Hallstrom v. Tillamook Cty., 493 U.S. 20, 29 (1989).
38
supplementary role envisioned for the citizen suit.” Id. at 60. Thus, a citizen seeking to
commence a citizen suit “must show that the defendant’s violations of the CWA are
ongoing at the time of suit.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 521
(4th Cir. 2003).
Therefore, although Congress envisioned private citizens playing an important role
in the CWA enforcement by providing supplementary enforcement, it also placed
jurisdictional limitations on citizen suits by requiring the existence of an ongoing
violation.
III.
The threshold jurisdictional question in this appeal is whether there is a cognizable
and ongoing CWA violation such that the Appellants’ citizen suit may proceed. See
Gwaltney, 484 U.S. at 57. In my view, the Appellants have failed to show that the CWA
violation is ongoing, because there is no ongoing discharge of pollutants from a point
source. Cf. Am. Canoe Ass’n, 326 F.3d at 521. Instead, the facts presented to us in the
record demonstrate that there is an ongoing groundwater migration from the spill site,
which does not amount to a CWA violation and cannot support a citizen suit. See Or.
Nat. Desert Ass’n, 550 F.3d at 785 (noting that Congress chose not to include generalized
runoff within the definition of “discharge”).
39
A.
In my view, there is no ongoing CWA violation. The Appellants cannot show that
there is an ongoing discharge of pollutants from a point source, because the only point
source at issue—the pipeline—is not currently leaking or releasing any pollutants.
A CWA violation is defined as an unpermitted “discharge of any pollutant by any
person.” 33 U.S.C. § 1311(a). “Discharge of a pollutant” is defined as “any addition of
any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). For
there to be an “addition . . . from a point source,” id., the point source must convey,
transport, or introduce the pollutant to navigable waters. See Miccosukee Tribe, 541 U.S.
at 105 (observing that “a point source . . . need only convey the pollutant to ‘navigable
waters’ ” and that the examples of point sources in 33 U.S.C. § 1362(12) are objects that
“transport” pollutants); Catskill Mts., 273 F.3d at 491 (“[A] ‘point source must introduce
the pollutant into navigable water from the outside world.’ ” (quoting Gorsuch, 693 F.2d
at 165)). In other words, to constitute a CWA violation, a point source must have been
involved in the discharging activity.
Thus, for there to be an ongoing CWA violation, a point source must currently be
involved in the discharging activity by adding, conveying, transporting, or introducing
pollutants to navigable waters. See El Paso Gold Mines, 421 F.3d at 1140 (summarizing
the “ongoing migration cases” in which there was “an identifiable discharge from a point
source that occurred in the past . . . ,” but “[a]t the time of suit, the discharging activity
from a point source . . . had ceased,” and citizen suits were dismissed). The majority
notes that “[t]he CWA’s language does not require that the point source continue to
40
release a pollutant for a violation to be ongoing.” Maj. Op. at 16. It is difficult to see
how there could be an ongoing CWA violation—defined as “any addition of pollutants . .
. from any point source”—without an ongoing discharging activity from a point source.
In my view, to constitute an ongoing CWA violation (i.e. ongoing point source
pollution), the point source’s discharging, adding, conveying, transporting, or introducing
of pollutants must be continuous.
Kinder Morgan’s pipeline is not presently leaking or releasing gasoline; therefore,
the only relevant point source is not currently discharging—adding, conveying,
transporting, or introducing—pollutants to navigable waters. Cf. Miccosukee Tribe, 541
U.S. at 105; Catskill Mts., 273 F.3d at 491. Thus, in my view, there is no ongoing
violation under the meaning of the CWA. This should therefore end the Appellants’
citizen suit, which requires an ongoing CWA violation. See 33 U.S.C. §§ 1362(12);
1365(a); Gwaltney, 484 U.S. at 57. The majority also seemingly recognizes that
pollutants must be actively “originating from a point source.” Maj. Op. at 17 (emphasis
added). However, the majority’s theory is that since the pollutants in the spill site once
came from the pipeline, the continuing addition from the spill site is thus a continuing
discharge from a point source. But accepting this position would effectively erase the
phrase from any point source out of the CWA, 33 U.S.C. § 1362(12), and find an ongoing
CWA violation even though no pollutant is originating or being added from a point
source any longer. Thus, in my view, the majority disregards point source as an element
of a CWA violation and invents a violation not cognizable under the CWA.
41
Because the pipeline is not actively and continuously discharging pollutants, there
is no ongoing violation, but only a wholly past violation, under the meaning of the CWA.
B.
In my view, this is an ongoing migration case, which does not amount to an
ongoing CWA violation and cannot support a citizen suit. Kinder Morgan is a past
violator—that is, it indirectly added pollutants to navigable waters from its point source
when its pipeline leaked and released a large amount of gasoline that reached navigable
waters. Although Kinder Morgan’s pipeline itself is not currently leaking, the effects of
Kinder Morgan’s past violation continue. The spill site continues to introduce gasoline
into navigable waters as gasoline migrates through the ground or as ground water washes
off and carries gasoline to navigable waters. This Court has not addressed whether a past
discharge with lasting effects—through an ongoing migration of pollutants through
groundwater movement—can support a citizen suit. See Ohio Valley Envtl. Coal., Inc. v.
Hernshaw Partners, LLC, 984 F. Supp. 2d 589, 597 (S.D. W. Va. 2013) (observing there
is no Fourth Circuit precedent directly on point).
Given similar circumstances, however, several federal courts have concluded that
ongoing migration of pollutants from a past discharge does not amount to an ongoing
discharge necessary to support a citizen suit under the CWA. Conn. Coastal Fishermen’s
Ass’n v. Remington Arms Co., 989 F.2d 1305, 1312–13 (2d Cir. 1993) (finding no
ongoing CWA violation because the alleged polluter had “ceased operation of the Gun
Club” that deposited lead shot and clay target debris into navigable waters “by the time
plaintiff filed suit”); Pawtuxet Cove Marina v. Ciba-Geigy Corp., 807 F.2d 1089, 1094
42
(1st Cir. 1986) (finding no ongoing CWA violation because “[a]t the time plaintiffs
brought suit, . . . defendant had ceased operating”); Hamker v. Diamond Shamrock Chem.
Co., 756 F.2d 392, 397 (5th Cir. 1985) (finding no ongoing CWA violation because “the
complaint alleges . . . only that there are continuing effects from the past discharge, and
such an allegation is insufficient for the purposes of section 1365.”); Aiello v. Town of
Brookhaven, 136 F. Supp. 2d 81, 120–21 (E.D.N.Y. 2001) (concluding that the ongoing
migration of residual leachate plume from a past violation is not an ongoing CWA
violation), Wilson v. Amoco Corp., 33 F. Supp. 2d 969, 975–76 (D. Wyo. 1998); Friends
of Santa Fe Cty. v. LAC Minerals, Inc., 892 F. Supp. 1333, 1354 (D.N.M. 1995)
(“Migration of residual contamination resulting from previous releases is not an ongoing
discharge within the meaning of the Act.”); Brewer v. Ravan, 680 F. Supp. 1176, 1183
(M.D. Tenn. 1988); cf. El Paso, 421 F.3d at 1140.
Like those courts, I would conclude that the lasting effects of Kinder Morgan’s
past violation cannot give rise to a citizen suit under the CWA for two reasons. First,
ongoing migration does not involve a point source, thus negating an essential element of
a CWA violation. Second, ongoing migration is, by definition, nonpoint source
pollution, which is outside of the CWA’s reach.
i.
Ongoing migration from a site contaminated by a past discharge does not involve
a point source and is thus not a cognizable violation under the CWA. See 33 U.S.C.
§ 1362(12). Indeed, the lack of a discharging activity from a point source was the
43
decisive factor for many courts in concluding that ongoing migration cannot support a
CWA citizen suit. As the Tenth Circuit has summarized:
The ongoing migration cases [in which the courts dismissed the citizen
suits] . . . all involve an identifiable discharge from a point source that
occurred in the past, whether it be a spill, Wilson, 989 F. Supp. at 1163, the
accidental leakage at a chemical plant, Hamker, 756 F.2d at 394, the
discharge of lead shot and clay targets at a firing range, Remington Arms,
989 F.2d at 1309, or dumping of waste rock at a mine, LAC Minerals, 892
F. Supp. at 1337. At the time of suit, the discharging activity from a point
source in all of these cases had ceased; all that remained was the migration,
decomposition, or diffusion of the pollutants into a waterway.
El Paso, 421 F.3d at 1140. Likewise, at the time of the Appellants’ suit, the discharging
activity from Kinder Morgan’s point source (i.e., the gasoline leak) had ceased, and all
that remained was migration of gasoline from the spill site to navigable waters.
“Migration of residual contamination resulting from previous releases is not an ongoing
discharge within the meaning of the [CWA],” LAC Minerals, 892 F. Supp. at 1354,
because the point source itself is not conveying or introducing a pollutant into navigable
waters, see Miccosukee Tribe, 541 U.S. at 105; Gorsuch, 693 F.2d at 175.
The majority attempts to distinguish one of these migration cases from the Fifth
Circuit, Hamker, 756 F.2d at 397, by observing that Hamker only dealt with an alleged
discharge into groundwater and not navigable waters. See Maj. Op. at 19. But the
court’s analysis in Hamker did not turn on the issue of navigable waters; rather, it turned
on the fact that the continuing addition of pollutants did not come from any point source.
Hamker, 756 F.2d at 397. The majority further states in a footnote that “to the extent that
Hamker’s reasoning suggests that an ongoing violation requires that the point source
continually discharge a pollutant, Hamker contravenes our decision in Goldfarb.” Maj.
44
Op. at 19 n.9. The majority misplaces reliance on Goldfarb. This Court in Goldfarb
observed that, under the Resource Conservation and Recovery Act’s (RCRA) citizen suit
provision, 42 U.S.C. § 6972(a)(1)(A), “although a defendant’s conduct that is causing a
violation may have ceased in the past . . . what is relevant is that the violation is
continuous or ongoing.” Goldfarb, 791 F.3d at 513. The statement in Goldfarb presumes
that there already is an ongoing violation, does not help us in determining whether a
polluter’s past action with lasting effects should be viewed as past or ongoing violation,
and is inapplicable to Kinder Morgan’s situation because Kinder Morgan’s CWA
violation had ceased when its point source ceased discharging pollutants.
ii.
Moreover, migration of pollutants from the spill site amounts to an ongoing
nonpoint source pollution. As discussed above, Congress chose not to regulate nonpoint
source pollution through the NPDES permitting program. See, e.g., El Paso, 421 F.3d at
1140 n.4; Forsgren, 309 F.3d at 1183; Gorsuch, 693 F.2d at 166; Appalachian Power,
545 F.2d at 1373–74. Nonpoint source pollution is commonly caused by the natural
movements of rainfall or groundwater that wash off and carry pollutants from a large,
diffuse area to navigable waters. Codiano, 575 F.3d at 220 (“[N]onpoint source pollution
. . . generally results from land runoff, precipitation, atmospheric deposition, or
percolation.”); El Paso, 421 F.3d at 1140 n.4 (“Groundwater seepage that travels through
fractured rock would be nonpoint source pollution, which is not subject to NPDES
permitting.”); Sierra Club v. Abston Constr. Co., Inc., 620 F.2d 41, 44 (5th Cir. 1980)
(“The focus of [the CWA] is on the ‘discernible, confined and discrete’ conveyance of
45
the pollutant, which would exclude natural rainfall drainage over a broad area.”); Tr. for
Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (“Congress had classified nonpoint
source pollution as runoff caused primarily by rainfall around activities that employ or
create pollutants.”). Nonpoint source pollution—caused by movements of rain or
groundwater—“is very difficult to regulate through individual [NPDES] permits”
because it “arises from many dispersed activities over large areas, and is not traceable to
any single discrete source.” Forsgren, 309 F.3d at 1184.
Here, the Appellants have alleged ongoing migration from the spill site, which
does not amount to a CWA violation. The Appellants have alleged that the groundwater
flow from the spill site is introducing pollutants to navigable waters. Appendix (“App.”)
8. Indeed, the Appellants’ CWA case is built on the novel theory that the introduction of
pollutants through the movement of hydrologically connected groundwater amounted to
a CWA violation. Appellant Br. 26. As the record plainly shows, groundwater is
carrying gasoline from the spill site, which spans in three different directions from the
pipeline and covers a vast area. App. 99, 173. This kind of migration of pollutants
through the natural movements of groundwater amounts to nonpoint source pollution. El
Paso, 421 F.3d at 1140 n.4; see also Forsgren, 309 F.3d at 1184. While there is no doubt
this kind of nonpoint source pollution affects the quality navigable waters, Congress
deliberately chose not to place nonpoint source pollution within the CWA’s reach. 3 See,
3
An exception to this general rule is that the “[g]ravity flow, resulting in a
discharge into a navigable body of water, may be part of a point source discharge if the
[polluter] at least initially collected or channeled the water and other materials.” Abston
(Continued)
46
e.g., Abston Constr., 620 F.2d at 44. In my view, therefore, because ongoing migration
of pollutants is nonpoint source pollution, it is not cognizable under the CWA.
In sum, I would conclude that ongoing migration of pollutants from a past
discharge does not amount to an ongoing CWA violation.
C.
I do not take lightly the allegations of the severe environmental harm caused by
Kinder Morgan. The Appellants have alleged facts suggesting a serious environmental
disaster that cannot be easily overlooked as a mere peccadillo on the part of Kinder
Morgan’s operation and management. The allegations indicate that a full restoration will
take many years and require tremendous resources.
The severity of the situation alone, however, does not and cannot give rise to a
citizen suit under the CWA. “Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In creating a citizen suit provision under
the CWA, Congress deliberately limited federal courts’ jurisdiction such that they may
entertain citizen suits only for allegations of ongoing CWA violations. 33 U.S.C. §
Contr., 620 F.2d at 45. This is because, once a polluter attempts to channel, collect, or
otherwise redirect the flow of water, such an effort becomes a “discernible, confined and
discrete” conveyance. 33 U.S.C. § 1362(14); see also Sierra Club v. Va. Elec. Power
Co., 247 F. Supp. 3d 753, 763 (E.D. Va. 2017) (“Dominion built the piles and ponds to
concentrate [pollutants] in one location . . . [which] channels and conveys [pollutants]
directly into groundwater and thence into the surface waters. Essentially they are discrete
mechanisms . . . . ”). The Appellants have not alleged that Kinder Morgan has at all
attempted to channel, collect, or redirect the free flow of groundwater. See App. 419.
47
1365(a); Gwaltney, 484 U.S. at 57. And Congress precisely defined a CWA violation as
a point source discharge without an NPDES permit. The critical element—the addition
from a point source—cannot be satisfied here because Kinder Morgan has repaired its
pipeline and the pipeline is not currently leaking or adding pollutants to navigable waters.
The Appellants can only point to nonpoint pollution from the spill site or the past
violation, which cannot give rise to a citizen suit under the CWA.
Barring the Appellants’ citizen suit would not necessarily mean that Kinder
Morgan will evade accountability. Under the CWA, the primary responsibility for
enforcement rests with the state and federal governments. The Piney Run, 523 F.3d at
456. In fact, the State of South Carolina, through DHEC, has stepped in and is actively
overseeing the remediation efforts. DHEC has directed Kinder Morgan to investigate the
impact of the spill and implement corrective action plans. After a series of back and forth
revisions between DHEC and Kinder Morgan, on March 1, 2017, DHEC approved the
“Startup Plan for Surface Water Protection Measures” that was meant to implement
additional remedial measures in the spill site. App. 351. Thus, even without a CWA
citizen suit, the State of South Carolina is protecting and remediating the waters and
natural resources within its borders. In addition to ordering Kinder Morgan to remediate
the spill site, the state and federal governments are also empowered to use criminal, civil,
and administrative enforcement actions for even for past violations of the CWA.
Moreover, if a CWA citizen suit fails for lack of subject matter jurisdiction, other
state and federal laws may provide actionable claims against Kinder Morgan. South
Carolina state law may provide a more encompassing response. As the amici States have
48
pointed out, Brief of the Amici States 22–23, South Carolina law provides for the state to
recover monetarily from polluters for violations that includes even nonpoint source
pollution, see S.C. Code § 48-1-90(a)(1). In addition to the enforcement mechanism
under state law, other federal laws could provide recourse. In response to Kinder
Morgan’s past spill, a federal citizen suit may perhaps be more appropriate under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §
9601 et seq., which is “designed to effectuate the cleanup of toxic waste sites” and to
impose cleanup costs, Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citations
omitted), or under the RCRA, 42 U.S.C. § 6901 et seq., which concerns with the disposal
of hazardous waste, Aiello, 136 F. Supp. 2d at 121 (“It is RCRA, rather than the CWA,
that appropriately addresses liability for ongoing contamination by past polluters.”).
The Appellants have raised serious allegations but, in my view, the CWA citizen
suit is not the proper mechanism to seek redress. Therefore, the district court lacked
subject matter jurisdiction and the complaint failed to state a claim upon which relief can
be granted.
IV.
For the reasons above, I would affirm the district court’s dismissal of the
Appellants’ complaint. I respectfully dissent.
49