IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11229
D.E. RICE, Trustee for the Rice
Family Living Trust; KAREN RICE,
Trustee for the Rice Family
Living Trust,
Plaintiffs-Appellants,
versus
HARKEN EXPLORATION COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
April 25, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs-appellants D.E. and Karen Rice (the Rices) filed
this suit against defendant-appellee Harken Exploration Company
(Harken) alleging that Harken discharged oil into or upon
“navigable waters” in violation of the Oil Pollution Act of 1990,
33 U.S.C. §§ 2701-2720 (OPA), and also asserting several related
state law claims. Harken moved for summary judgment on all claims
and the district court granted its motion in part, on the ground
that under the court’s interpretation of the OPA and the facts
alleged plaintiffs could not sustain a cause of action under the
OPA. In the same order the district court declined to exercise
supplemental jurisdiction over the plaintiffs’ state law claims and
remanded those claims to state court. The Rices now appeal the
district court’s grant of summary judgment, and request that their
OPA claim be remanded for trial. We affirm.
Facts and Proceedings Below
Plaintiffs D.E. Rice and Karen Rice are trustees for the Rice
Family Living Trust. The trust owns the surface rights to the
property known as Big Creek Ranch in Hutchinson County, Texas.
Harken Exploration Company is a Delaware corporation with its
principal place of business in Irving, Texas. The Rice Family
Living Trust purchased Big Creek Ranch for $255,000 in 1995.
Harken owns and operates oil and gas properties pursuant to
leases on Big Creek Ranch. Under these leases, Harken maintains
various structures and equipment on the property for use in
exploration and pumping, processing, transporting, and drilling for
oil. Harken began its operations on Big Creek Ranch in January
1996. Prior to Harken’s operations, the Big Creek Ranch property
had been used for oil and gas production for several decades.
Big Creek is a small seasonal creek on the Rices’ property.
Big Creek runs across the ranch to the Canadian River, which is the
southern boundary of Big Creek Ranch. The Canadian River is down
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gradient from Harken’s oil and gas flow lines, tank batteries, and
other production equipment. The Canadian River flows into the
Arkansas River, which flows into the Mississippi River, which
empties into the Gulf of Mexico. While the exact nature of Big
Creek is unclear from the record, Harken does not dispute that the
Canadian River is legally a “navigable water.”
The Rices allege that Harken has discharged and continues to
discharge hydrocarbons, produced brine, and other pollutants onto
Big Creek Ranch and into “Big Creek,” “unnamed tributaries of Big
Creek” and other “independent ground and surface waters.” They
claim that Harken has contaminated or threatened 9,265.24 acre feet
of groundwater and over ninety noncontiguous surface areas of the
ranch. The plaintiffs do not allege that there has been any major
event or events resulting in the discharge of oil onto Big Creek
Ranch. Rather, the Rices allege that Harken damaged their land as
a result of a series of smaller discharges that occurred over a
considerable period of time. They allege that the cost to
remediate the contamination of the soil and groundwater is
$38,537,500.
Harken admits that there have been instances in which oil or
produced brine was spilled or leaked from their tanks and other oil
production equipment. Harken claims, however, that these
discharges were of the sort that inevitably accompany any oil
production operation and that in any case none of the discharges
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ever threatened “navigable waters” within the meaning of the OPA.
Harken moved for summary judgment in the district court,
claiming, inter alia, that the OPA was not intended to cover spills
of oil onto dry land that occurred hundreds of miles from any coast
or shoreline. The district court essentially agreed, and held that
the Rices could not sustain a cause of action under the OPA on the
facts shown. The district court dismissed the Rices’ related state
law claims without prejudice. This appeal followed.
Discussion
We review an order granting summary judgment de novo.
Hernandez v. Reno, 91 F.3d 776, 779 (5th Cir. 1996). Summary
judgment is proper if “there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Summary judgment is appropriate in
this case if the Rices have failed to produce summary judgment
evidence of facts which, if viewed in the reasonable light most
favorable to the Rices, do not suffice to establish a viable OPA
claim. Where, as here, a proper motion for summary judgment has
been made, the non-movant, in order to avoid summary judgment, must
come forward with appropriate summary judgment evidence sufficient
to sustain a finding in its favor on all issues on which it would
bear the burden of proof at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069
(5th Cir. 1994). On all material matters at issue here the Rices
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would bear the burden of proof at trial.
The OPA was enacted in 1990 in response to the Exxon Valdez
oil spill in Prince William Sound, Alaska, and was intended to
streamline federal law so as to provide quick and efficient cleanup
of oil spills, compensate victims of such spills, and internalize
the costs of spills within the petroleum industry. Senate Report
No. 104-94, reprinted in 1990 U.S.C.C.A.N. 722, 723. The OPA
imposes strict liability on parties responsible for the discharge
of oil: “[E]ach responsible party for ... a facility from which oil
is discharged, or which poses the substantial threat of a discharge
of oil, into or upon the navigable waters or adjoining shorelines
... is liable for the removal costs and damages specified in
subsection (b) that result from such incident.”1 33 U.S.C. §
2702(a). The OPA thus concerns facilities which discharge (or pose
1
Removal costs incurred by an injured party are only recoverable
by a private party if they are consistent with the National Contingency
Plan. 33 U.S.C. § 2702(b)(1)(B). The “National Contingency Plan”
refers to the responsibility of the President of the United States under
33 U.S.C. § 1321 (c) and (d) to publish a national plan for the removal
of oil and hazardous substances from the waters of the United States
where “a discharge, or a substantial threat of a discharge, of oil or
a hazardous substance from a vessel, offshore facility, or onshore
facility is of such a size or character as to be a substantial threat
to the public health or welfare of the United States (including but not
limited to fish, shellfish, wildlife, other natural resources, and the
public and private beaches and shorelines of the United States....” 33
U.S.C. § 1321(c)(2)(A). The purpose of the Plan is to “provide for
efficient, coordinated, and effective action to minimize damage from oil
and hazardous substance discharges....” Id. at § 1321(d)(2). Because
of our resolution of this case, we do not reach the question of whether
the Rices' proposed remediation is consistent with the National
Contingency Plan.
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a substantial threat to discharge) oil “into or upon . . .
navigable waters,” and liability under the OPA is therefore
governed by the impact of such a discharge on “navigable waters.”
The OPA and its related regulations define navigable waters to mean
“the waters of the United States, including the territorial sea.”
33 U.S.C. § 2701(21); 15 C.F.R. § 990.30. The scope of the OPA is
an issue of first impression for this Court.
The Rices argue that the district court’s interpretation of
the term “navigable waters” in the OPA was erroneous. They claim
the court erred by refusing to apply the OPA to inland areas.2
Since Congress used the same language in both the OPA and the Clean
Water Act,3 the Rices argue, the scope of both Acts should be
similar and the OPA should apply to discharges into “waters of the
United States” regardless of the distance of those waters from an
ocean or similar body of water. The Rices also argue that the
district court improperly excluded groundwater from “waters of the
United States.” Congress, the Rices claim, intended to extend its
regulatory power to all waters that could affect interstate
commerce when it enacted the OPA. Accordingly, the Rices would
2
The district court appears to have construed the OPA as applying
only to coastal or marine oil spills: “The Panhandle of Texas is
hundreds of miles from costal waters or ocean beaches. Discharges of
oil and salt water onto land in the Panhandle of Texas are not the type
of oil and waste-water spills targeted by the OPA. ...Plaintiffs have
no Oil Pollution Act cause of action under the facts of this case.”
Rice v. Harken Exploration Co., 89 F.Supp.2d 820, 827 (N.D. Tex. 1999).
3
33 U.S.C. § 1251 et seq.
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have this Court construe the OPA as imposing liability on
facilities that discharge oil and related wastes into groundwater
(or any other body of water) that affects interstate commerce. The
Rices argue that under the proper interpretation of “navigable
waters” they have a viable OPA claim since the groundwater under
the ranch and the surface waters on the ranch have been impacted by
Harken’s discharges of oil. The Rices request that we remand this
case to the district court for trial.
Although there have been few cases construing the OPA
definition of “navigable waters,” there is a substantial body of
law interpreting that term as used in the Clean Water Act, 33
U.S.C. § 1251 et seq. (CWA). The CWA is also limited to “navigable
waters,” which is defined in both statutes as “waters of the United
States.” Compare 33 U.S.C. § 2701(21) with 33 U.S.C. § 1362(7).
The House Conference Report on the OPA reads: “The terms ‘navigable
waters,’ ‘person,’ and ‘territorial seas’ are re-stated verbatim
from section 502 of the [CWA]. ... In each case, these [CWA]
definitions shall have the same meaning in this legislation as they
do under the [CWA] and shall be interpreted accordingly.” House
Conference Report No. 101-653, reprinted in 1990 U.S.C.C.A.N. 779,
779-80. The Senate Report is similar, and adds that the OPA is
intended to cover inland waters as well: “The [OPA] covers all the
bodies of water and resources covered by section 311 [of the CWA],
including the inland waters of the United States....” Senate Report
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No. 101-94, reprinted in 1990 U.S.C.C.A.N. 722, 733.
The legislative history of the OPA and the textually identical
definitions of “navigable waters” in the OPA and the CWA strongly
indicate that Congress generally intended the term “navigable
waters” to have the same meaning in both the OPA and the CWA.
Accordingly, the existing case law interpreting the CWA is a
significant aid in our present task of interpreting the OPA.
The Supreme Court has endorsed an interpretation of “navigable
waters” as used in the CWA under which waters and wetlands need not
always actually be navigable in fact to be protected under that
Act. See United States v. Riverside Bayview Homes, 474 U.S. 121,
133, 106 S.Ct. 462-63 (1985) (upholding regulations that CWA
restricts discharges into non-navigable “wetlands” adjacent to an
open body of navigable water).4 We have adopted a similarly broad
interpretation of the language of the CWA. See Avoyelles
4
“Wetlands” as used in Riverside Bayview Homes referred to those
areas described as “wetlands” in the Army Corps of Engineers
regulations, 33 C.F.R. § 323.2 (1985). Riverside Bayview Homes, 106
S.Ct. at 458. The current Corps regulations, 33 C.F.R. § 328.3(b)
(2000), contain essentially the same definition, viz:
“(b) The term wetlands means those areas that are inundated
or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar
areas.”
There is no evidence nor any claim that any “wetlands” are involved in
this case.
-8-
Sportsman’s League v. Marsh, 715 F.2d 897 (5th Cir. 1983). Other
courts have also adopted expansive interpretations of “navigable
waters” under the CWA. See, e.g., Quivira Mining Co. v. EPA, 765
F.2d 126, 130 (10th Cir. 1985), cert. denied, 474 U.S. 1055
(1986)(holding that non-navigable creeks and arroyos are covered by
the CWA where intense rainfall could create surface connections
with navigable streams); United States v. Ashland Oil and Transp.
Co., 504 F.2d 1317, 1329 (6th Cir. 1974) (holding that the CWA
prohibited discharges into a non-navigable tributary three
waterways removed from a navigable stream).
However, more recently, the Supreme Court has limited the
scope of the CWA. In Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers, 121 S.Ct. 675 (2001), the
Court held that an Army Corps of Engineers regulation defining
“waters of the United States” to include “waters such as intrastate
lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds, the use, degradation, or destruction of
which could affect interstate or foreign commerce” exceeded the
scope of the Corps’ regulatory power under the CWA as applied to
the petitioner's land under a regulation known as the “Migratory
Bird Rule.” See id. at 678 (quoting 33 C.F.R. § 328.3(a)(3)). The
“Migratory Bird Rule” states that the CWA covers any intrastate
water which could be used by migrating birds that cross state lines
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or which could be used to irrigate crops sold in interstate
commerce. See 51 Fed. Reg. 41217. The case involved several ponds
that had formed in pits that were originally part of a sand and
gravel mining operation. Solid Waste Agency, 121 S. Ct. at 678.
The Court refused to interpret the CWA as extending the EPA's
regulatory power to the limits of the Commerce Clause, and held
that the application of the CWA to the petitioner's land exceeded
the authority granted to the Corps under the CWA. Id. at 684. The
Court distinguished Riverside Bayview Homes on the ground that in
that case the wetlands in question were adjacent to a body of open
water that was actually navigable: “We said in Riverside Bayview
Homes that the word 'navigable' in the statute was of ‘limited
effect’ and went on to hold that § 404(a) extended to nonnavigable
wetlands adjacent to open waters. But it is one thing to give a
word a limited meaning and quite another to give it no effect
whatever.” Id. at 682-83. Under Solid Waste Agency, it appears
that a body of water is subject to regulation under the CWA if the
body of water is actually navigable or is adjacent to an open body
of navigable water. See id. at 680 (“In order to rule for
respondents here, we would have to hold that the jurisdiction of
the Corps extends to ponds that are not adjacent to open water.
But we conclude that the text of the statute will not allow this.”)
Nevertheless, under this standard the term “navigable waters”
is not limited to oceans and other very large bodies of water. If
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the OPA and CWA have identical regulatory scope, the district
court’s conclusion that the OPA cannot apply to any inland waters
was erroneous. However, the district court’s reluctance to apply
an Act targeted at disasters like the Exxon Valdez oil spill to
Harken’s dry land operations in the Texas Panhandle is certainly
understandable. Under any definition of “navigable waters” there
still must be a discharge of oil into a protected body of water for
liability under either statute to attach.
The Rices point to two categories of waters which, they argue,
are protected under the OPA. They claim that Harken has discharged
oil into Big Creek and other surface waters on the ranch, and also
into the groundwater underneath the ranch. The OPA provides the
Rices with a remedy only if they can demonstrate that Harken has
discharged oil into any waters that are protected by the OPA. We
address groundwater and surface water in turn.
Groundwater
The Rices urge this Court to apply the CWA definition of
“navigable waters” to the OPA. But, even that definition is not so
expansive as to include groundwater within the class of waters
protected by the CWA. The law in this Circuit is clear that ground
waters are not protected waters under the CWA.5 Exxon Corp. v.
Train, 554 F.2d 1310, 1322 (5th Cir. 1977). In Exxon, we held that
5
The Seventh Circuit has reached a similar conclusion.
Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965
(7th Cir. 1994).
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the legislative history of the CWA belied any intent to impose
direct federal control over any phase of pollution of subsurface
waters. Id.6
The Rices seek to avoid a similar construction of the OPA by
arguing that in enacting the OPA Congress intended to exert its
power under the Commerce Clause to the fullest possible degree, and
that therefore groundwater, if it affects interstate commerce,
should be protected under the Act. But, the Rices do not point to
any portion of the Act itself or to any part of the legislative
history of the Act to justify their claim that Congress intended
to depart from its decision not to regulate groundwater under the
CWA. The Rices’ theory would extend coverage under the OPA to
waters that we have explicitly held are not covered by the CWA.
Exxon, 554 F.2d at 1322. The Rices have presented us with no
reason to construe the term “waters of the United States” more
6
We based our rejection of the EPA’s claim that the CWA granted
it authority over discharges into deep water wells on clear evidence
that congressional intent was to the contrary:
“...the congressional plan was to leave control
over subsurface pollution to the states until
further studies, provided for in the Act,
determined the extent of the problem and possible
methods for dealing with it. In our view, the
evidence is so strong that Congress did not mean
to substitute federal authority over groundwaters
for state authority that the Administrator’s
construction, although not unreasonable on its
face, must give way because ‘it is contrary to
congressional intentions.’”
Exxon, 554 F.2d at 1322 (quoting EPA v. State Water Res. Control
Bd., 426 U.S. 200, 227 (1976)).
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expansively in the OPA than in the CWA. We hold that subsurface
waters are not “waters of the United States” under the OPA.
Accordingly, the Rices have no cause of action under the OPA for
discharges of oil that contaminate the groundwater under Big Creek
Ranch.
Surface Water
The Rices do not confine their claims to groundwater
contamination. They also allege that the Canadian River, Big
Creek, and other surface waters on the ranch are directly
threatened by Harken’s discharges into the groundwater under Big
Creek Ranch. There is substantial evidence of a variety of leaks
and minor discharges from Harken’s equipment onto the soil
surrounding its Big Creek Ranch facilities. It appears from our
review of the record that Harken’s various discharges were all onto
dry land. There is no evidence in the record of any discharge of
oil directly into any body of surface water. Instead, the Rices
appear to claim that Harken's discharges have seeped through the
ground into groundwater which has, in turn, contaminated several
bodies of surface water.
There is arguably some evidence in the record that some
naturally occurring surface waters on Big Creek Ranch have actually
been contaminated with oil. John Drake, the Rices’ expert
geologist, prepared a preliminary report on water contamination on
Big Creek Ranch and was deposed by Harken. Although the report
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mentions surface waters, Drake's report focuses almost entirely on
the impact of Harken’s oil production activities on the soil and on
the groundwater under Big Creek Ranch. Drake’s report does state
that several surface water samples were taken in which petroleum
hydrocarbons were found.7 But, the presence of oil does not grant
jurisdiction under the Act. Instead, a body of water is protected
under the Act only if it is actually navigable or is adjacent to an
open body of navigable water.
The bodies of water the Rices seek to protect are consistently
referred to in the record as intermittent streams which only
infrequently contain running water. There is no detailed or
comprehensive description of any of these seasonal creeks available
in the record. There is also very little evidence of the nature of
Big Creek itself. It is described several times in various
depositions as a “seasonal creek” that often has no running water
7
Drake’s report states:
“In order to more accurately characterize the
site, surface water where present was sampled and
analyzed using standard EPA protocol. In all
thirteen (13) surface water samples were collected
from various surface locations across the site.
These samples consisted of four (4) spring, five
(5) stock pond, one (1) stormwater, and three (3)
stream locations. Several of the surface water
samples showed impact by hydrocarbons....”
This statement appears to be consistent with a table, attached to the
Rices' motion opposing summary judgment, that summarizes the water
samples taken on Big Creek Ranch, although the information provided in
that table is somewhat cryptic. It is unclear from the report exactly
which samples were taken from naturally occurring surface waters and
which were taken from excavated trenches or wells. We are also unsure
from the record of the level of impact hydrocarbons have had on the
surface waters described in the report.
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at all. And, apparently, some of the time that water does flow in
it, all the water is underground. There is no detailed information
about how often the creek runs, about how much water flows through
it when it runs, or about whether the creek ever flows directly
(above ground) into the Canadian River. In short, there is nothing
in the record that could convince a reasonable trier of fact that
either Big Creek or any of the unnamed other intermittent creeks on
the ranch are sufficiently linked to an open body of navigable
water as to qualify for protection under the OPA. And, as noted,
there is no evidence of any oil discharge directly into Big Creek
or any other intermittent creek containing above ground water on
the ranch; only that there were oil discharges into the ground,
some part of which may have, over some undetermined period of time,
seeped through the ground into ground water and thence into Big
Creek or other intermittent creek (either as an underground or
surface body of water).
Although Big Creek and the other intermittent streams located
on the ranch do not qualify as “navigable waters,” the Rices also
allege that the Canadian River is directly threatened by Harken's
discharges of oil. The parties agree that the Canadian River is a
“navigable water” within the meaning of the OPA. The river is
allegedly threatened with contamination by Harken’s operations
through subsurface flow from the contaminated groundwater under the
ranch into the river.
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This Court has not yet decided whether discharges into
groundwater that migrate into protected surface waters are covered
under either the CWA or the OPA. In Exxon, we held that the text
and legislative history of the CWA “belie[d] an intention to impose
direct federal control over any phase of pollution of subsurface
waters.” Exxon, 554 F.2d at 1322. But, in that case the EPA did
not argue that the pollutants at issue would migrate from ground
water into surface waters and we expressed “no opinion on what the
result would be if that were the state of facts.” Id. at 1312 n. 1.
We have therefore not yet addressed whether discharges into
groundwater may be actionable under the CWA or OPA if those
discharges result in the contamination of some body of protected
surface water.
So far as here relevant, the “discharges” for which the OPA
imposes liability are those “into or upon the navigable waters.”
As noted, “navigable waters” do not include groundwater. It would
be an unwarranted expansion of the OPA to conclude that a discharge
onto dry land, some of which eventually reaches groundwater and
some of the latter of which still later may reach navigable waters,
all by gradual, natural seepage, is the equivalent of a “discharge”
“into or upon the navigable waters.”8
8
The Seventh Circuit has also concluded that the CWA does not
assert authority over ground water simply because those waters may be
hydrologically connected to protected surface waters. Village of
Oconomowoc Lake, 24 F.3d at 965. In Kelly v. United States, 618 F.
Supp. 1103 (W.D. Mich. 1985), the court held that a CWA claim was not
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In Exxon, we noted that Congress was aware that there was a
connection between ground and surface waters but nonetheless
decided to leave groundwater unregulated by the CWA. Exxon, 554
F.2d at 1325. The issue in Exxon was whether the EPA, as an
incident to its power under the CWA to issue permits authorizing
the discharge of pollutants into protected surface waters,9 had the
authority to place conditions in such permits that regulated the
disposal of pollutants into deep wells. We concluded that EPA did
not have that authority, basing that holding on our reading of the
statute as well as a detailed examination of the legislative
history of the CWA, which we held “demonstrat[ed] conclusively that
Congress believed it was not granting the [EPA] any power to
stated by a complaint which alleged “that the pollutants released into
the ground at the Air Station not only contaminated the ground water,
but are naturally discharging into the Grand Traverse Bay–an undisputed
navigable body of water.” Id. at 1106. In so holding the court relied
on our opinion in Exxon as well as its own similar reading of the CWA
legislative history. Expressly addressing footnote 1 of our Exxon
opinion the court stated (618 F. Supp. at 1106-07):
“The Fifth Circuit did not concede that discharges into the
soil will be subject to the regulatory provisions of CWA if
the groundwater contaminated thereby eventually migrates into
navigable waters. On the contrary, it specifically
‘express[ed] no opinion on what the result would be [under
the CWA] if that were the state of facts.’ Exxon, 554 F.2d
at 1312 n.1. Moreover, the remainder of the Exxon opinion
and the unmistakably clear legislative history both
demonstrate that Congress did not intend the Clean Water Act
to extend federal regulatory and enforcement authority over
groundwater contamination. Rather, such authority was to be
left to the states.”
Kelly and Exxon are both relied on in this respect by Village of
Oconomuwoc Lake. Village of Oconomuwoc Lake, 24 F.3d at 965.
9
See 33 U.S.C. § 1344(a).
-17-
control disposals into groundwater.” Id. at 1329.
In light of Congress's decision not to regulate ground waters
under the CWA/OPA, we are reluctant to construe the OPA in such a
way as to apply to discharges onto land, with seepage into
groundwater, that have only an indirect, remote, and attenuated
connection with an identifiable body of “navigable waters.” We
must construe the OPA in such a way as to respect Congress's
decision to leave the regulation of groundwater to the States.
Accordingly, we hold that a generalized assertion that covered
surface waters will eventually be affected by remote, gradual,
natural seepage from the contaminated groundwater is insufficient
to establish liability under the OPA. In this connection, we also
note that such a construction is entirely consistent with the
occasion which prompted the Act’s passage.
The Rices have offered significant evidence that the
groundwater under Big Creek Ranch has been contaminated by oil
discharges onto the surface of ranch land. But, the only evidence
the Rices have produced of the hydrological connection between this
groundwater and the Canadian River is a general assertion by their
expert that the Canadian River is down gradient from Big Creek
Ranch. Drake's report briefly mentions a hydrological connection
between the groundwater and the Canadian River, but there is
nothing in the report or in Drake’s deposition to indicate the
level of threat to, or any actual oil contamination in, the
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Canadian River. There is no discussion of flow rates into the
river, and no estimate of when or to what extent the contaminants
in the groundwater will affect the Canadian River. There is also
no evidence of any present or past contamination of the Canadian
River. The only evidence in the record that any protected body of
water is threatened by Harken's activities is Drake's general
assertion that eventually the groundwater under the ranch will
enter the Canadian river. The ground water under Big Creek Ranch
is, as a matter of law, not protected by the OPA. And, the Rices
have failed to produce evidence of a close, direct and proximate
link between Harken’s discharges of oil and any resulting actual,
identifiable oil contamination of a particular body of natural
surface water that satisfies the jurisdictional requirements of the
OPA. Summary judgment for Harken was appropriate.
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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