CWA Citizen Suit Dismissed Where Plaintiffs Failed to Allege “Conveyance of Pollutants Into Navigable Waters”

On April 20, the U.S. District Court for the District of South Carolina, Anderson Division, dismissed the plaintiffs’ Clean Water Act (CWA) Citizen Suit which alleged that the defendant pipeline operators had violated the CWA by discharging pollutants into navigable waters without a permit. The District Court concluded that although plaintiffs “identified a discrete source for the pollution,” they “failed to allege a discrete conveyance of pollutants into navigable waters.” The District Court otherwise confirmed that “the CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.” The case is Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc.

The remedial action is continuing and 209,000 gallons of gasoline and petroleum products have been recovered from the site of the spill, under the direction of the South Carolina Department of Health and Environmental Control. In December 2014, a leak in the pipeline spilled 369,000 gallons of petroleum products.

To establish a CWA violation, a plaintiff is are required to show “the discharge of a pollutant into navigable waters from any point source ‘except as authorized by a permit issued under the National Pollution Discharge Elimination System (NPDES) program.'” To establish a violation of 33 U.S.C. §§ 1311(a), 1342, and 1362(12), a plaintiff must prove that the defendant

1. discharged
2. a pollutant
3. into navigable waters
4. from a point source
5. without a permit.

Ruling on the motion to dismiss, the District Court noted that the CWA requires proof that the defendant in such an enforcement action discharged a pollutant into navigable waters from a “point source” without a permit. Pursuant to the CWA, “point source” means “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or
other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).

While a pipeline can be a point source, the District Court observed that the plaintiffs failed to allege any facts to support their argument that the defendants discharged this a pollutant directly into “navigable waters.” The CWA defines “navigable waters” simply as “waters of the United States.” 33 U.S.C. § 1362(7). The theory that the migration of pollutants through groundwater to surface waters is sufficient to trigger CWA liability if a hydrological connection can be demonstrated is not the law—yet –in the Fourth Circuit. The only federal courts of appeal to have considered this argument have rejected it (namely the Fifth Circuit, in Rice v. Harken Exploration Co., and the Seventh Circuit, in Village of Oconomowoc Lake v. Dayton Hudson Corp.).