Cape Fear River Watch, et al v. Duke Energy Progress, Inc.

Filing 50

ORDER granting 42 Motion for Reconsideration regarding 41 Order - To clarify, the court does not dismiss claims that rely on the state's regulation of groundwater, but only claims that rely on the independent jurisdiction of the CWA. The court hereby amends its June 9, 2014, order to strike the concluding sentence of Section B.2.b., including the entirety of footnote 13, and replaces it with the following sentence: "Therefore, plaintiffs' claim(s) relying on the independent jurisdiction of the CWA over groundwater, as opposed to state law, are dismissed for lack of subject matter jurisdiction under the CWA." Signed by District Judge Louise Wood Flanagan on 08/01/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:13-CV-200-FL

CAPE FEAR RIVER WATCH, INC.;
SIERRA CLUB; and WATERKEEPER
ALLIANCE,
Plaintiffs,
v.

DUKE ENERGY PROGRESS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

ORDER

This case comes before the court on plaintiffs’ motion for clarification (DE 42), now ripe
for review. For the following reasons, plaintiffs’ motion is granted.
BACKGROUND
On June 9, 2014, the court issued an order on defendant’s motion to dismiss, among other
matters. One of the central arguments, and thus a focus of the court’s order, was whether waters of
the United States, as defined in the Clean Water Act (“CWA”), includes groundwater. This court
held that it does not.
However, as the court noted, the state of North Carolina can regulate groundwater when
issuing permits pursuant to the National Pollutant Discharge Elimination System (“NPDES”) permit
program. The court concluded its analysis of the jurisdiction of the CWA, as follows: “[T]his court
is satisfied that groundwater . . . does not fall within the meaning of the statute. [Footnote 12].
Therefore, plaintiffs’ groundwater claims [Footnote 13] are dismissed for lack of subject matter

jurisdiction under the CWA.” June 9, 2014, order at 20.
In defining plaintiff’s “groundwater claims” in footnote 13, the court specified that “[t]he
groundwater claims are all of Count III and parts of Count II that rely on discharges into
groundwater as opposed to discharges into Sutton Lake. See Compl.¶¶ 78-92.”
DISCUSSION
The court recognizes that this portion of the order requires clarification because it appears
to conflict with the ability of the state to regulate groundwater on its own by imposing NPDES
permit conditions.
Thus, to clarify, the court does not dismiss claims that rely on the state’s regulation of
groundwater, but only claims that rely on the independent jurisdiction of the CWA. The court
hereby amends its June 9, 2014, order to strike the concluding sentence of Section B.2.b., including
the entirety of footnote 13, and replaces it with the following sentence: “Therefore, plaintiffs’
claim(s) relying on the independent jurisdiction of the CWA over groundwater, as opposed to state
law, are dismissed for lack of subject matter jurisdiction under the CWA.”
CONCLUSION
Based upon the foregoing, the court GRANTS plaintiff’s motion for clarification (DE 47),
and AMENDS its June 9, 2014, order as set forth above.
SO ORDERED, this the 1st day of August, 2014.

LOUISE W. FLANAGAN
United States District Court Judge

2