In its 2018 decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., the United States Court of Appeals for the Fourth Circuit found liability under the Clear Water Act (“CWA”) for point source pollutant discharges that travel through hydrologically connected groundwater on their way to a navigable waterway. This decision aligned the court with precedent from the United States Courts of Appeals for the Second and Ninth Circuits, but later decisions from the United States Court of Appeals for the Sixth Circuit resulted in a clear circuit split on the issue of CWA applicability to discharges that travel through groundwater. The Fourth Circuit also split from several other circuits in its subsidiary finding that liability could be found where there is a continued migration of pollution despite the point source itself ceasing to pollute. This Comment argues that the Fourth Circuit’s decision adhered to the CWA’s intentionally broad purpose and will improve the ability of citizen groups and government entities to hold polluters accountable.
Justin Rheingold, Digging Deep: The Clean Water Act's Applicability to Groundwater Discharges, 60 B.C.L. Rev. II.-311 (2019), https://lawdigitalcommons.bc.edu/bclr/vol60/iss9/22