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 seve ral related

state law claims. Harken moved for summary judgment on all claims

and the d istrict court granted its motion in part, on the ground-2-

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.

Harke n 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-3-

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

remed iate 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 equi pment. 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-4-

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 d e novo

.

Hernandez v. Reno

, 91 F.3d 776, 779 (5 th 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 v iable 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 Rices1 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

lim ited 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 haza rdous substance discharges....” I d

. at § 1321(d)(2). Because

of our resolution of this case, we do not reach the question of whether

the Rices' proposed remediation is co nsistent with the National

Contingency Plan.

-5- would bear the burden of proof at trial.

The OPA was enacted in 1990 in respon se 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, reprin ted 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 pose2 The district court appears to have construed the OPA as applying

only to coastal or marine oil spills: “The Panhandl e 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.

-6- a substantial threat to discharge) oil “into or upon

. . .

navigable waters,” and liability unde r 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

. T he scope of the OPA is

an issue of first impression for this Court.

The Rices argue that the distr ict 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 i nland 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 wate rs that could affect interstate

commerce when it enacted the OPA. Accordingly, the Rices would-7-

have this Co urt 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.

Alt hough 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.” C ompare 33 U.S.C. § 2701(21) wit h 33 U.S.C. § 1362(7).

The House Conference Report on the OPA reads: “The terms ‘navigable

w aters,’ ‘person,’ and ‘territorial seas’ are re-stated verbatim

from se ction 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 Report4 “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). R iverside 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- 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 te r m “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. 46 2-63 (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 languag e of the CWA. S ee Avoyelles-9-

Sportsman’s League v. Marsh

, 715 F.2d 897 (5 th Cir. 1983) . Other

courts have also adopted expansive interpretati ons of “navigable

waters” under the CWA. See, e.g.

, Quivira Mining Co. v. EPA , 765

F.2d 126, 130 (10 th Cir. 198 5), c ert. denied

, 474 U.S. 1055

(1986)(holding that non-navigable creeks and arroyos are covered by

the CWA where intense rainfall could create surface c onnections

with navigable streams); United States v. Ashland Oil and Transp.

Co.

, 504 F.2d 1317, 1329 (6 th Cir. 1974) (ho lding that the CWA

prohibited discharges into a non-navigable tributary three

waterways removed from a navigable stream).

However, more recen tly, the Supreme Court has limited the

scope of the CWA. In S olid 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 d estruction of

which could affect interstate or foreign commerce” exceeded the

scope o f the Corps’ regulatory power under the CWA as applied to

the petitioner's land under a regulation known as the “Migratory

Bird Rule.” S ee 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-10-

or which could be used to irrigate crops sold in interstate

commerce. S ee 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. S olid 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. I d

. 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 Bayvi e w

Homes that the word 'navigable' in the statute was of ‘limited

effect’ and went on to hold that § 404(a) extended to nonnavigable

wetla nds adjacent to open waters. But it is one thing to give a

word a limited meaning a nd quite another to give it no effect

whatever.” I d

. 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. S ee 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 no t 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. If5 The Seventh Circuit has reached a similar conclusion.

Village of Oconomowoc Lake v. Dayton Hudson Corp.

, 24 F.3d 962, 965

(7 th Cir. 1994).

-11- the OPA and CWA have identica l 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 Pan handle 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

wa ters are not protected waters under the CWA. 5 Exxon Corp. v.

Train

, 554 F.2d 1310, 1322 (5 th Cir. 1977). In E xxon

, we held that6 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,

deter mined 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 Wat er Res. Control

Bd. , 426 U.S. 200, 227 (1976)).

-12- 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 explici tly 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-13-

expansively in the OPA than in the CWA. We hold that subsurfac e

waters are not “waters of the United States” under the OPA.

Accordingly, the Ri ces 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 dis charges from Harken’s equipment onto the soil

surrounding its Big Creek R anch 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 dischar ges have seeped through the

ground into gro undwater which has, in turn, contaminated several

bodies of surface water.

There is arguably s ome 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 report7 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) sto ck 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 cr yptic. 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.

-14- 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

t hat several surface water samples were taken in which petrol eum

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 inte rmittent streams which only

infrequently contai n 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-15-

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 r uns, 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 con taining 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 me aning 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.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 K elly v. United States

, 618 F.

Supp. 1103 (W.D. Mich. 1985), the court held that a CWA claim was not

-16- This Court has not yet decided whether discha rges 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 poll ution 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 contam ination 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

on to 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.” 8stated by a complaint which al leged “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 wate r.” 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 E xxon

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.’ E xxon

, 554 F.2d

at 1312 n.1. Moreover, the remainder of the E xxon 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 a nd 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- In E xxon

, we noted that Congress was aware that ther e was a

connection between ground and s urface waters but nonetheless

decided to leave groundwater unregulated by the CWA. E xxon

, 554

F.2d at 1325 . The issue in E xxon 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 le gislative

history of the CWA, which we held “demonstrat[ed] conclusively that

Congress believed it was not granting the [EPA] any power to-18-

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.

Accor dingly, we hold that a generalized assertion that covered

surface waters will eventually be affected by rem ote, gradual,

natural seepage from the contaminated groundwater is insufficient

to establish liability under the OPA. In this connection, we also

note that such a construct ion 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-19-

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 groun dwater 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,

identif iable 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.