On April 20, 2017, the U.S. District Court for the District of South Carolina issued a decision concluding that the federal Clean Water Act (CWA) does not apply to claims involving the discharge of pollutants to groundwater that it is hydrologically connected to surface waters. In Upstate Forever, et al. v. Kinder Morgan Energy Partners, L.P., et al., the district court granted the defendants' motion to dismiss the plaintiffs' citizen suit alleging violations of the CWA as a result of a December 2014 leak of petroleum products from defendants' pipeline in Anderson County, South Carolina. In addition to concluding that there was no "point source" discharge under the CWA, the district court also concluded that the slow migration of petroleum in the groundwater toward two creeks did not trigger CWA liability because the CWA does not apply to claims involving the discharge of pollutants to groundwater that it is hydrologically connected to surface waters. That ruling is contrary to a recent federal court decision from the Eastern District of Virginia which was addressed in SGR's April 5th newsletter. Given the conflicting decisions, it is very likely that the U.S. Court of Appeals for the Fourth Circuit will soon address the CWA-groundwater pathway issue.
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