This week, the Fourth Circuit issued a decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P. that addresses three key issues arising in many federal Clean Water Act (CWA) cases:

1. How, as a legal matter, courts treat “historic” contamination under the CWA;

2. Whether good-faith remedial efforts undertaken under the supervision of relevant agencies by themselves strip federal jurisdiction over citizen suits under similar legal authority; and

3. Whether CWA-regulated “pollutants” need to discharge directly into CWA-regulated “navigable waters” to violate the CWA.

Upstate Forever is interesting legally but not factually. There is no factual dispute that the involved pipeline experienced a leak, that gasoline seeped into the ground, or who had to pay to clean it up. Defendants proactively worked with the state regulatory agency to develop and execute a cleanup plan. Despite the fact that the pipeline had been repaired, two environmental group plaintiffs sued the pipeline owner alleging that a “plume” of petroleum contamination continued to migrate to waterways even though the state regulators had approved a cleanup plan. The district court dismissed the case finding that the pipeline had been repaired and that any remaining “pollutants” only reached CWA-regulated “navigable waters” through groundwater, which is not subject to the CWA.

Legally, the case addresses three key issues in significant detail. While one judge agreed with the district judge that the case should be dismissed, two judges held that the case should move forward. Judge Keenan ruled:

• Regarding “historic” contamination: The majority stated that the CWA’s purpose is to “abate pollution when the government cannot or will not command compliance.” Defendants’ gasoline pipeline qualifies as a CWA “point source,” and plaintiffs’ allegations (which for purposes of a motion to dismiss must be accepted as true) that “pollutants” originating from it continue to be “added” to “navigable waters” are sufficient to plead a CWA claim. The majority stated that: “The CWA’s language does not require that the point source continue to release a pollutant for a violation to be ongoing.”

• Regarding defendants’ remedial efforts: Even though defendants had worked with state regulators to remediate contamination, the majority stated that the CWA’s purpose is to “abate pollution,” and that “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.” While the decision was focused on legal issues, it is telling that the majority specifically referenced plaintiffs’ allegations (which, again, were required to be accepted as true) that defendants “failed to comply fully with DHEC’s abatement instructions” and plaintiffs’ “testing conducted in August 2016 revealed that the levels of gasoline contaminants in [one waterway] actually were increasing almost two years after the spill.”

• Regarding “direct” discharge: The majority stated that the CWA does not require “direct” or “channelized” discharge. Instead, the majority stated that courts can use a fact-specific inquiry to assess whether any discharges are “sufficiently connected to navigable waters to be covered . . .” The majority noted that the plaintiffs have alleged that “pollutants are seeping into navigable waters . . . about 1,000 feet or less from the pipeline,” and stated that: “This extremely short distance, if proved, provides strong factual support for a conclusion” that the CWA applies.

Judge Floyd’s dissent – which states that the district court acted appropriately in dismissing the case – disagrees with each of the above conclusions:

• Regarding “historic” contamination: Judge Floyd pointed out that the CWA’s point-source permitting regime is not tailored to target the residual petroleum at issue here and the residual contamination was a “wholly past” issue over which the CWA had no jurisdiction. He observed that the CWA intends to target ongoing pollution and that the “point source” requirement is a fundamental part of the CWA’s structure. Judge Floyd noted that defendants’ pipeline – which had been repaired – was the “point source” and any remaining contaminants were not presently related to any “point source.”

• Regarding defendants’ remedial efforts: Judge Floyd stated that the CWA places the primary burden for enforcement on state and federal regulators and the relevant state regulator here “has stepped in and is actively overseeing the remediation efforts.” “[E]ven without a CWA citizen suit, the State of South Carolina is protecting and remediating the waters and natural resources within its borders.”

• Regarding “direct” discharge: Judge Floyd stated that“Migration of pollutants from the spill site amounts to an ongoing nonpoint source [that] Congress chose not to regulate . . . through the NPDES permitting program.”