Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach

sboxermanFeatured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP

In a recent decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 (4th Cir. Apr. 12, 2018), a panel of the U.S. Court of Appeals for the Fourth Circuit held that federal Clean Water Act (“CWA” or “Act”) jurisdiction extended to pollutants released into soil that then migrated through groundwater to a water of the United States.  Last, week the full court denied rehearing en banc, clearing the way for a petition for certiorari to the U.S. Supreme Court.

Indeed, with this ruling, it seems ever more likely the Supreme Court will weigh in on this question of the scope of Clean Water Act jurisdiction.  In Upstate, the Fourth Circuit panel joined the Ninth Circuit, which recently ruled that the Act did extend to a release of pollutants through groundwater to a water of the United States, Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) (click here for my analysis of that decision), but those rulings conflict with two earlier rulings by the Fifth and Seventh Circuits.  See Rice v. Harken Exploration Co., 250 F.3d 264, 271 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).  Continue reading “Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach”