Petition for Writ of Certiorari — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefAug 27, 2018
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App. 1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAWAI‘I WILDLIFE FUND, a
Hawaii non-profit corporation;
SIERRA CLUB – MAUI GROUP, a
non-profit corporation; SURFRIDER
FOUNDATION, a non-profit corporation; WEST MAUI PRESERVATION
ASSOCIATION, a Hawaii non-profit
corporation,
Plaintiffs-Appellees,
No. 15-17447
D.C. No.
1:12-cv-00198SOM-BMK
ORDER AND
AMENDED
OPINION
v.
COUNTY OF MAUI,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii Susan O. Mollway,
Senior District Judge, Presiding
Argued and Submitted October 12, 2017
University of Hawaii Manoa
Filed February 1, 2018
Amended March 30, 2018
Before: Mary M. Schroeder, Dorothy W. Nelson,
and M. Margaret McKeown, Circuit Judges.
Order;
Opinion by Judge D.W. Nelson
App. 2
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SUMMARY*
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Environmental Law
The panel filed (1) an order amending its opinion
and, on behalf of the court, denying a petition for rehearing en banc; and (2) an amended opinion affirming
the district court’s summary judgment rulings finding
that the County of Maui violated the Clean Water Act
when it discharged pollutants from its wells into the
Pacific Ocean, and further finding that the County had
fair notice of its violations.
The panel concluded that the County’s four discrete wells were “point sources” from which the County
discharged “pollutants” in the form of treated effluent
into groundwater, through which the pollutants then
entered a “navigable water,” the Pacific Ocean. The
wells therefore were subject to National Pollutant Discharge Elimination System regulation. Agreeing with
other circuits, the panel held that the Clean Water Act
does not require that the point source itself convey the
pollutants directly into the navigable water. The panel
held that the County was liable under the Act because
it discharged pollutants from a point source, the pollutants were fairly traceable from the point source to a
navigable water such that the discharge was the functional equivalent of a discharge into the navigable
* This summary constitutes no part of the opinion of the
court. It has been prepared by court staff for the convenience of
the reader.
App. 3
water, and the pollutant levels reaching navigable water were more than de minimis. The panel rejected the
argument that the County’s effluent injections were
disposals of pollutants into wells and therefore exempt
from the NPDES permitting requirements.
The panel also held that the Clean Water Act provided fair notice, as required by due process, of what
conduct was prohibited.
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COUNSEL
Michael R. Shebelskie (argued), Hunton & Williams
LLP, Richmond, Virginia; Colleen P. Doyle, Los Angeles, California; Patrick K. Wong and Richelle M. Thomson, County of Maui, Wailuku, Maui, Hawaii; for
Defendant-Appellant.
David L. Henkin (argued) and Summer KupauOdo, Earthjustice, Honolulu, Hawaii, for PlaintiffsAppellees.
David Y. Chung, Thomas A. Lorenzen, Kirsten L. Nathanson, and Mark Thomson, Crowell & Moring LLP,
Washington, D.C., for Amici Curiae Association of
American Railroads, American Farm Bureau Federation, American Iron and Steel Institute, American
Petroleum Institute, National Association of Manufacturers, National Mining Association, The Fertilizer Institute, and Utility Water Act Group.
Shawn Hagerty, Andre Monette, and Rebecca Andrews,
Best Best & Krieger LLP, San Diego, California;
App. 4
Roderick E. Walston, Best Best & Krieger LLP, Walnut
Creek, California; for Amici Curiae Association of California Water Agencies, California Association of Sanitation Agencies, California State Association of
Counties, International Municipal Lawyers Association, League of California Cities, National Association
of Clean Water Agencies, National Association of Counties, National League of Cities, National Water Resources Association, and Watereuse Association.
Frederick H. Turner, R. Justin Smith, and Aaron P.
Avila, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Karyn Wendelowski, Office of General
Counsel, United States Environmental Protection
Agency, Washington, D.C.; for Amicus Curiae United
States.
Nicholas C. Dranias, Assistant Attorney General;
Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Amici Curiae States
of Arizona, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska,
Nevada, Oklahoma, South Carolina, Texas, Utah, West
Virginia, and Wyoming.
App. 5
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ORDER
The Opinion filed on February 1, 2018, is amended
as follows:
1. On slip opinion page 12, footnote 2, the following text was added to the end of the footnote: <Hence,
it does not affect our analysis that some of our sister
circuits have concluded that groundwater is not a navigable water. See Rice v. Harken Expl., 250 F.3d 264,
270 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton
Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994). We are
not suggesting that the CWA regulates all groundwater. Rather, in fidelity to the statute, we are reinforcing
that the Act regulates point source discharges to a navigable water, and that liability may attach when a
point source discharge is conveyed to a navigable water through groundwater. Our holding is therefore consistent with Rice, where the Fifth Circuit required
some evidence of a link between discharges and contamination of navigable waters, 250 F.3d at 272, and
with Dayton Hudson, where the Seventh Circuit only
considered allegations of a “potential [rather than an
actual] connection between ground waters and surface
waters,” 24 F.3d at 965.>
2. On slip opinion page 19, footnote 3, the following text was added to the end of the footnote: <Those
principles are especially relevant in the CWA context
because the law authorizes citizen suits to enforce its
provisions. See § 1365. Our approach is firmly
grounded in our case law, which distinguishes between
App. 6
point source and nonpoint source pollution based on
whether pollutants can be “traced” or are “traceable”
back to a point source. See Alaska, 749 F.2d at 558; Ecological Rights, 713 F.3d at 508; supra, at 12–15.>
3. On slip opinion at page 19, the following text
replaces the sentence after the citation to Haw. Wildlife, 24 F. Supp. 3d at 1000: <Here, the Tracer Dye
Study and the County’s concessions conclusively establish that pollutants discharged from all four wells
emerged at discrete points in the Pacific Ocean, with
64 percent of the wells’ pollutants reaching the ocean.
The Study also traced a southwesterly path from the
wells’ point source discharges to the ocean.>
With these amendments, Judge McKeown voted to
deny County of Maui’s Petition for Rehearing En Banc.
Judge Schroeder and Judge Nelson recommended denial of petition for rehearing en banc. The full court has
been advised of the petition for rehearing en banc and
no judge of the court has requested a vote on whether
to rehear the matter en banc.
The petition for rehearing en banc is DENIED. No
further petitions for rehearing or rehearing en banc
may be filed.
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OPINION
D.W. NELSON, Senior Circuit Judge:
The County of Maui (“County”) appeals the district court’s summary judgment rulings finding the
App. 7
County violated the Clean Water Act (“CWA”) when it
discharged pollutants from its wells into the Pacific
Ocean, and further finding it had fair notice of its violations. Hawai‘i Wildlife Fund, Sierra Club – Maui
Group, Surfrider Foundation, and West Maui Preservation Association (“Associations”) urge us to uphold
these rulings. For the reasons set forth below, we affirm
the district court.
BACKGROUND
1. The Lahaina Wells and the Effluent Injections
The County owns and operates four wells at the
Lahaina Wastewater Reclamation Facility (“LWRF”),
the principal municipal wastewater treatment plant
for West Maui. Wells 1 and 2 were installed in 1979 as
part of the original 1975 plant design, and Wells 3 and
4 were added in 1985 as part of an expansion project.
Although constructed initially to serve as a backup disposal method for water reclamation, the wells have
since become the County’s primary means of effluent
disposal into groundwater and the Pacific Ocean.
The LWRF receives approximately 4 million gallons of sewage per day from a collection system serving
approximately 40,000 people. That sewage is treated
at the Facility and then either sold to customers for irrigation purposes or injected into the wells for disposal. The County disposes of almost all the sewage it
receives – it injects approximately 3 to 5 million
App. 8
gallons of treated wastewater per day into the groundwater via its wells.
That some of the treated effluent then reaches the
Pacific Ocean is undisputed. The County expressly conceded below and its expert confirmed that wastewater
injected into Wells 1 and 2 enters the Pacific Ocean.
The Associations submitted various studies and expert
declarations establishing a connection between Wells 3
and 4 and the ocean. Although the County quibbles
with how much effluent enters the ocean and by what
paths the pollutants travel to get there, it concedes
that effluent from all four wells reaches the ocean.
The County has known this since the Facility’s inception. The record establishes the County considered
building an ocean outfall to dispose of effluent directly
into the ocean but decided against it because it would
be too harmful to the coastal waters. It opted instead
for injection wells it knew would affect these waters
indirectly. When the Facility underwent environmental review in February 1973, the County’s consultant –
Dr. Michael Chun – stated effluent that was not used
for reclamation purposes would be injected into the
wells and that these pollutants would then enter the
ocean some distance from the shore. The County further confirmed this in its reassessment of the Facility
in 1991.
According to the County’s expert, when the wells
inject 2.8 million gallons of effluent per day, the flow of
effluent into the ocean is about 3,456 gallons per meter
of coastline per day – roughly the equivalent of
App. 9
installing a permanently-running garden hose at every
meter along the 800 meters of coastline. About one out
of every seven gallons of groundwater entering the
ocean near the LWRF is comprised of effluent from the
wells.
2. The Tracer Dye Study
In June 2013, the U.S. Environmental Protection
Agency (“EPA”), the Hawaii Department of Health
(“HDOH”), the U.S. Army Engineer Research and Development Center, and researchers at the University of
Hawaii conducted a study (the “Tracer Dye Study” or
“Study”) on Wells 2, 3, and 4 to gather data on, among
other things, the “hydrological connections between
the injected treated wastewater effluent and the
coastal waters.” The Study involved placing tracer dye
into Wells 2, 3, and 4, and monitoring the submarine
seeps off Kahekili Beach to see if and when the dye
would appear in the ocean.
The Study concluded “a hydrogeologic connection
exists between . . . Wells 3 and 4 and the nearby coastal
waters of West Maui.” Eighty-four days after injection,
tracer dye introduced to Wells 3 and 4 began to emerge
“from very nearshore seafloor along North Kaanapali
Beach,” near Kahekili Beach Park, about a half-mile
southwest of the LWRF. According to the Study, the effluent travels in this southwesterly path “due to geologic controls that include a hydraulic barrier created
by valley fills to the northwest.” The Study found “64
percent of the treated wastewater injected into [Wells
App. 10
3 and 4] currently discharges [into the ocean].” It further concluded “[t]he major discharge areas are confined to two clusters, only several meters wide, with
very little discharge [occurring] in between and around
them.”
Tracer dye from Well 2 was not detected in the
ocean. But this was because Wells 3 and 4 – located
between Well 2 and the areas in the ocean where the
wastewater discharges – “inject the majority of effluent,” which likely diverted the injected wastewater
from Well 2 into taking “a different path other than directly towards the submarine springs” where the
wastewater from Wells 3 and 4 discharges. If Well 2
were to receive most of the effluent at the Facility, that
effluent would also take the southwesterly path taken
by the wastewater from Wells 3 and 4. And “[b]ecause
Well 1 is located in very close proximity to Well 2, . . .
the [T]racer [S]tudy’s predictions for the fate of effluent from Well 2 can be used to predict the fate of effluent from Well 1,” according to the Associations’ expert
Dr. Jean Moran.
3. The District Court’s Summary Judgment
Rulings
The County appeals three of the district court’s
summary judgment rulings. In the first, the district
court found the County liable as to Wells 3 and 4 for
discharging effluent through groundwater and into the
ocean without the National Pollutant Discharge Elimination System (“NPDES”) permit required by the
App. 11
CWA. Haw. Wildlife Fund v. Cty. of Maui, 24 F. Supp.
3d 980, 1005 (D. Haw. 2014). The court based its decision on three independent grounds: (1) the County “indirectly discharge[d] a pollutant into the ocean
through a groundwater conduit,” (2) the groundwater
is a “point source” under the CWA, and (3) the groundwater is a “navigable water” under the Act. Id. at 993,
999, 1005.
In its second order, the district court held the
County liable as to Wells 1 and 2 based largely on the
same reasons it found the County liable on Wells 3 and
4. Haw. Wildlife Fund v. Cty. of Maui, Civil No. 1200198 SOM/BMK, 2015 WL 328227, at *5-6 (D. Haw.
Jan. 23, 2015). The court acknowledged that no study
confirms the “point of entry into the ocean of flow from
[W]ells 1 and 2.” Id. at *2. But it nonetheless held
against the County after “repeatedly confirm[ing] at
the [summary judgment] hearing . . . that the County
was expressly conceding that pollutants introduced by
the County into [W]ells 1 and 2 were making their way
to the ocean.” Id.
Finally, the district court found the County could
not claim a due process violation because it had fair
notice under the plain language of the CWA that it
could not discharge effluent via groundwater into the
ocean.
This appeal followed.
App. 12
STANDARD OF REVIEW
The Ninth Circuit “review[s] the district court’s
grant or denial of motions for summary judgment de
novo.” Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 988 (9th Cir. 2016) (citation and internal quotation marks omitted). “Thus, on appellate
review, [the] [Court] employ[s] the same standard used
by the trial court under Federal Rule of Civil Procedure
56(c).” Id. “As required by that standard, [the Court]
view[s] the evidence in the light most favorable to the
nonmoving party, determine[s] whether there are any
genuine issues of material fact, and decide[s] whether
the district court correctly applied the relevant substantive law.” Id. at 989 (citation omitted).
DISCUSSION
The Clean Water Act is designed to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To
achieve this objective, the Act prohibits the “discharge
of any pollutant by any person,” id. § 1311(a), and defines “discharge of a pollutant” as “any addition of any
pollutant to navigable waters from any point source,”
id. § 1362(12) (internal quotation marks omitted). A
“point source” is “any discernible, confined and discrete
conveyance, including but not limited to any . . . well
. . . from which pollutants are or may be discharged.”
Id. § 1362(14) (internal quotation marks omitted). A
party who obtains an NPDES permit is exempt from
the general prohibition on point source pollution. Id.
App. 13
§§ 1311(a), 1342(a)(1). Under these provisions, a party
violates the CWA when it does not obtain such a permit and “(1) discharge[s] (2) a pollutant (3) to navigable waters (4) from a point source.” Headwaters, Inc. v.
Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir.
2001) (citation omitted).
1. Liability under the CWA
The County argues the district court erred in concluding it was liable under the CWA as to all four of its
wells. We disagree.
a. Point Source Discharges
Neither side here disputes that each of the four
wells constitutes a “point source” under the CWA.
Given the wells here are “discernible, confined and discrete conveyance[s] . . . from which pollutants are . . .
discharged,” and the plain language of the statute expressly includes a “well” as an example of a “point
source,” the County could not plausibly deny the wells
are “point source[s]” under the statute. § 1362(14) (internal quotation marks omitted). The record further
establishes that from these point sources the County
discharges “pollutants” in the form of treated effluent
into groundwater, through which the pollutants then
enter a “navigable water[ ],” the Pacific Ocean. See id.
§§ 1362(7)-(8), (12), (14). As the pollutants here enter
navigable waters and can be “traced [back] to . . . identifiable point[s] of discharge,” “[the wells] are subject
to NPDES regulation, as are all point sources” under
App. 14
the plain language of the CWA. Trs. for Alaska v. E.P.A.,
749 F.2d 549, 558 (9th Cir. 1984) (citations omitted).
That the County’s activities constitute “point
source” discharges becomes clearer once we consider
our jurisprudence on “nonpoint source pollution”:
“[Such] pollution . . . arises from many dispersed activities over large areas,” “is not traceable to any single
discrete source,” and due to its “diffuse” nature, “is very
difficult to regulate through individual permits.” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d
502, 508 (9th Cir. 2013) (citations omitted). “The most
common example of nonpoint source pollution is the
residue left on roadways by automobiles” which rainwater “wash[es] off . . . the streets and . . . carrie[s]
along by runoff in a polluted soup [to] creeks, rivers,
bays, and the ocean.” Id. Our cases have consistently
held that such runoff constitutes nonpoint source pollution unless it is later collected, channeled, and discharged through a point source. See, e.g., id. (citations
omitted); Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d
832, 841 n.8 (9th Cir. 2003) (citation omitted). Applying
these principles in Ecological Rights, we held that
rainwater runoff carrying pollutants from the defendants’ utility poles to navigable waters constituted nonpoint source pollution under the CWA. 713 F.3d at 509
(citations omitted).
Ours is a different case entirely. Unlike the “millions of cars” discussed in Ecological Rights, here we
have four “discrete” wells that have been identified and
can be “regulate[d] through individual permits.” Id. at
508 (citations omitted). Furthermore, the automobiles
App. 15
and the utility poles discussed in Ecological Rights did
nothing themselves to “discretely collect[ ] and convey[ ]” the pollutants to a navigable water, and hence
could not constitute “point source[s]” under § 1362(14).
Id. at 508-10 (citations omitted). The Lahaina Wells, by
contrast, collect and inject pollutants in four discrete
wells into groundwater connected to the Pacific Ocean,
thereby “discretely collect[ing] and convey[ing]” pollutants to a navigable water. Id. at 509 (citations omitted); § 1362(14). The Tracer Dye Study confirms this
connection as to Wells 3 and 4, and the County conceded as much as to Wells 1 and 2. Given the County
knew of these effects well before the LWRF’s inception,
the record further establishes it “constructed [the
wells] for the express purpose of storing pollutants
[and] moving them from [the Lahaina Facility] to [the
Pacific Ocean].” Ecological Rights, 713 F.3d at 509 (citations omitted).1 This is simply not a case of “nonpoint
source pollution . . . caused primarily by rainfall
around activities that employ or create pollutants,”
where the resulting “runoff [can]not be traced to any
1
We do not mean to suggest that a CWA violation requires
some form of intent. It does not. See Comm. to Save Mokelumne
River v. East Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993)
(recognizing CWA “categorically prohibits any discharge of a pollutant from a point source without a permit” (citations omitted));
accord Sierra Club v. ICG Hazard, LLC, 781 F.3d 281, 284 (6th
Cir. 2015) (recognizing “regime of strict liability” under the CWA
(citation and internal quotation marks omitted)); Piney Run Pres.
Ass’n v. Cty. Comm’rs of Carroll Cty., 268 F.3d 255, 265 (4th Cir.
2001) (same). But the County’s purpose in constructing the wells
certainly informs whether they are “conveyance[s]” under the
CWA, § 1362(14), and hence, regulable point sources under the
statute. See Ecological Rights, 713 F.3d at 509 (citations omitted).
App. 16
identifiable point of discharge.” Alaska, 749 F.2d at 558
(citing United States v. Earth Scis., Inc., 599 F.2d 368,
373 (10th Cir. 1979)). As the “[County’s] activities release[d] pollutants from . . . discernible conveyance[s]”
to navigable waters, the County is liable under the
CWA. Id. (citations omitted).
b. Indirect Discharges
The County contends, however, that under the
CWA, it is not sufficient to focus exclusively on the
original pollutant source to determine whether an
NPDES permit is needed and that how pollutants
travel from the original point source to navigable waters matters. More specifically, the County contends
the point source itself must convey the pollutants directly into the navigable water under the CWA. As the
wells here discharge into groundwater, and then indirectly into the Pacific Ocean, the County asserts they
do not come within the ambit of the statute.2
2
We assume without deciding the groundwater here is neither a point source nor a navigable water under the CWA. Hence,
it does not affect our analysis that some of our sister circuits have
concluded that groundwater is not a navigable water. See Rice v.
Harken Expl., 250 F.3d 264, 270 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir.
1994). We are not suggesting that the CWA regulates all groundwater. Rather, in fidelity to the statute, we are reinforcing that
the Act regulates point source discharges to a navigable water,
and that liability may attach when a point source discharge is
conveyed to a navigable water through groundwater. Our holding
is therefore consistent with Rice, where the Fifth Circuit required
some evidence of a link between discharges and contamination of
navigable waters, 250 F.3d at 272, and with Dayton Hudson,
App. 17
The County first cites Alaska, where we held that
point source pollution occurs when “the pollution
reaches the water through a confined, discrete conveyance,” regardless of “the kind of pollution” at issue or
“the activity causing [it].” Id. at 558 (citation omitted).
As the effluent here reaches the Pacific Ocean
“through” groundwater – a nonpoint source – the
County contends it is not liable under the CWA. The
County reads Alaska out of context. First, we never addressed in Alaska whether a polluter may be liable under the CWA for indirect discharges because the issue
was not before us. See id. Furthermore, when we stated
the “pollution [must] reach[ ] the water through a confined, discrete conveyance,” we were merely stating the
pollution must come “from a discernible conveyance”
as opposed to some “[un]identifiable point of discharge.” Id. (emphasis added) (citations omitted). As
the “discharge water [there] [was] released from a
sluice box, a confined channel within the statutory definition,” the activity came within the ambit of the
CWA. Id. (emphasis added). This case is no different –
the effluent comes “from” the four wells and travels
“through” them before entering navigable waters. Id.
It just also travels through groundwater before entering the Pacific Ocean.
A more recent case Greater Yellowstone Coalition
v. Lewis supports the Associations’ contention that the
CWA governs indirect discharges. We held there that
where the Seventh Circuit only considered allegations of a “potential [rather than an actual] connection between ground waters
and surface waters,” 24 F.3d at 965.
App. 18
precipitation flowing into pits containing “newly extracted waste rock,” “filter[ed]” hundreds of feet underground, and “eventually entering the surface water”
did not constitute point source pollution under the
CWA. 628 F.3d 1143, 1147, 1153 (9th Cir. 2010) (citation omitted). The “pits that collect[ed] the waste rock
[did] not constitute point sources” because “there [was]
no confinement or containment of the [polluted] water”
before it entered navigable waters, as prohibited by the
statute. Id. We also concluded, however, that precipitation flowing into a “stormwater drain system” before
“enter[ing] the ground and, eventually, surface water”
constituted a point source discharge – the “stormwater
system [was] exactly the type of collection or channeling contemplated by the CWA.” Id. at 1152.
The wells here are more akin to the stormwater
drain system in Greater Yellowstone than they are to
the pits that collected the waste rock. Unlike the pits
that “[did] not constitute points sources within the
meaning of the CWA,” the wells here “confine[ ] [and]
contain[ ] . . . the [effluent]” before discharging it “[into]
the ground and, eventually, surface water.” Id. at 115253. And it was of no import to us in Greater Yellowstone
that the pollutants – as here – had to travel through
the ground before “eventually, [entering] surface water.” Id. at 1152. The Court was only concerned with
whether there was a point source from which the defendant discharged the pollutants. As the stormwater
drain system constituted this point source, the Court
concluded the defendant was required to “obtain[ ] the
requisite . . . certification for that system.” Id. at 1153.
App. 19
As the County also discharges its pollutants from a
point source, it, too, must obtain an NPDES permit under the CWA.
Our sister circuits agree that an indirect discharge
from a point source to a navigable water suffices for
CWA liability to attach. In Concerned Area Residents
for Environment v. Southview Farm, the Second Circuit held “[t]he collection of liquid manure into tankers
and their discharge on fields from which the manure
directly flows into navigable waters are point source
discharges under the case law.” 34 F.3d 114, 119 (2d
Cir. 1994). Regardless of whether the field itself was a
point source, the court concluded there was a “point
source discharge[ ]” under the CWA because (1) the pollutant itself was released from the tanker, a point
source, and (2) there was a “direct[ ]” connection between the field and the navigable water. See id. Both
elements are present here. The wells are point sources
under the statute, § 1362(14), and the Tracer Dye
Study along with the County’s concessions establish an
undeniable connection between the wells and the Pacific Ocean. The Study establishes effluent injected
into the wells travels a southwesterly path from the
Facility, appearing in submarine springs only a halfmile away.
Furthermore, in Sierra Club v. Abston Construction, the Fifth Circuit recognized that the “ultimate
question [as to CWA liability] is whether pollutants
[are] discharged from ‘discernible, confined, and discrete conveyance(s)’ either by gravitational or
nongravitational means.” 620 F.2d 41, 45 (5th Cir.
App. 20
1980). It went on to hold that “[s]ediment basins dug
by the miners and designed to collect sediment are . . .
point sources . . . even though the materials [are] carried away from the basins by gravity flow of rainwater.”
Id. (emphasis added). “Gravity flow, resulting in a discharge into a navigable body of water, may be part of a
point source discharge if the miner at least initially collected or channeled the water and other materials.” Id.
(emphasis added). That is what occurred here. The
County “initially collected [and] channeled” the pollutants in its wells and injected them into the ground,
where they were “carried away from the [wells] by the
gravity flow of [ground]water.” Id. And based on the
overwhelming evidence in this case establishing a connection between the wells and the Pacific Ocean, it
cannot be disputed the wells are “reasonably likely to
be the means by which [the] [effluent] [is] ultimately
deposited into a navigable body of water.” Id. Indeed,
the County has known since the LWRF’s inception that
effluent from the wells would eventually reach the
ocean some distance from the shore. That the groundwater plays a role in delivering the pollutants from the
wells to the navigable water does not preclude liability
under the statute. See id.
The Second Circuit further recognized the indirect
discharge theory in Peconic Baykeeper, Inc. v. Suffolk
County, where it rejected the district court’s conclusion
that “because the trucks and helicopters discharged
pesticides into the air, any discharge was indirect, and
thus not from a point source.” 600 F.3d 180, 188 (2d Cir.
2010). As the pesticides there were “discharged ‘from’
App. 21
the source, and not from the air,” the court concluded
the “spray apparatus . . . attached to [the] trucks and
helicopters” constituted a point source under the CWA.
Id. at 188-89 (emphasis added). The Ninth Circuit has
similarly held discharges through the air can constitute “point source pollution” under the statute. League
of Wilderness Def./Blue Mountains Biodiversity Project
v. Forsgren, 309 F.3d 1181, 1185, 1192-93 (9th Cir.
2002).
But accepting the County’s position – that pollutants must “travel via a ‘confined and discrete conveyance’ ” to navigable waters for CWA liability to attach
– would necessarily preclude liability in cases such as
Peconic Baykeeper and League of Wilderness. The pollutants in both cases traveled to navigable waters via
the air, and not via the point sources from which they
were released. See Peconic Baykeeper, 600 F.3d at 188;
League of Wilderness, 309 F.3d at 1185. Taken to its
logical conclusion, the County’s theory would only support liability in cases where the point source itself directly feeds into the navigable water – e.g., via a pipe
or a ditch. That the circuits have recognized CWA liability where such a direct connection does not exist
counsels against accepting the County’s theory.
Indeed, writing for the plurality in Rapanos v.
United States, Justice Scalia recognized the CWA does
not forbid the “ ‘addition of any pollutant directly to
navigable waters from any point source,’ but rather the
‘addition of any pollutant to navigable waters.’ ” 547
U.S. 715, 743 (2006) (plurality opinion) (emphasis in
original) (quoting §§ 1311(a), 1362(12)(A)). He further
App. 22
recognized that “from the time of the CWA’s enactment, lower courts have held that the discharge into
intermittent channels of any pollutant that naturally
washes downstream likely violates § 1311(a), even if
the pollutants discharged from a point source do not
emit ‘directly into’ covered waters, but pass ‘through
conveyances’ in between.” Id. (emphasis in original)
(citations omitted). In support of his “ ‘indirect discharge’ rationale,” Justice Scalia cited Concerned Area
Residents, where, as described above, the Second Circuit held the discharge of manure from point sources
onto fields (which were not necessarily point sources
themselves) and eventually into navigable waters constituted point source discharges under the CWA. Id. at
744.
Although the Court in Rapanos splintered on
other issues, no Justice disagreed with the plurality
opinion that the CWA holds liable those who discharge
a pollutant from a defined point source to the ocean.
Justice Kennedy’s opinion concurring in the judgment
objected only to the plurality opinion’s creation of certain limitations on the Executive Branch’s authority to
enforce the CWA’s environmental purpose and statutory mandate. Id. at 778. Similarly, the four-Justice
dissent cited the CWA’s prohibition of “any addition of
any pollutant to navigable waters from any point
source” as strong evidence of the law’s wide sweep, and
disagreed with the plurality opinion’s creation of two
limitations on CWA enforcement. Id. at 787, 800-06
(Stevens, J., dissenting).
App. 23
In past cases, we have recognized Justice Kennedy’s concurrence in Rapanos, not Justice Scalia’s
plurality opinion, as controlling. But we have only done
so in the context of “determin[ing] whether a wetland
that is not adjacent to and does not contain a navigable-in-fact water is subject to the CWA.” United States
v. Robertson, 875 F.3d 1281, 1288-89 (9th Cir. 2017) (citations omitted); see also N. Cal. River Watch v. City of
Healdsburg, 496 F.3d 993, 995 (9th Cir. 2007). As this
is not a case about wetlands, and we do not decide
whether groundwater is a “navigable water” under the
statute, we do not apply Justice Kennedy’s concurrence
here, and consider Justice Scalia’s plurality opinion
only for its persuasive value, United States v. Brobst,
558 F.3d 982, 991 (9th Cir. 2009) (citing CTS Corp. v.
Dynamics Corp. of Am., 481 U.S. 69, 81 (1987)) (internal quotation marks omitted). See S.F. Baykeeper v.
Cargill Salt Div., 481 F.3d 700, 707 (9th Cir. 2007) (“No
Justice [in Rapanos], even in dictum, addressed the
question whether all waterbodies with a significant
nexus to navigable waters are covered by the Act.”).
Justice Scalia’s plurality opinion demonstrates
the County is reading into the statute at least one critical term that does not appear on its face – that the
pollutants must be discharged “directly” to navigable
waters from a point source. As “the plain language of a
statute should be enforced according to its terms,” we
therefore reject the County’s reading of the CWA and
affirm the district court’s rulings finding the County
liable under the Act. ASARCO, LLC v. Celanese Chem.
App. 24
Co., 792 F.3d 1203, 1210 (9th Cir. 2015) (citations omitted).
We hold the County liable under the CWA because
(1) the County discharged pollutants from a point
source, (2) the pollutants are fairly traceable from the
point source to a navigable water such that the discharge is the functional equivalent of a discharge into
the navigable water, and (3) the pollutant levels reaching navigable water are more than de minimis.3 The
second point in particular is an important one. We
therefore disagree with the district court that “liability
under the Clean Water Act is triggered when pollutants reach navigable water, regardless of how they get
there.” Haw. Wildlife, 24 F. Supp. 3d at 1000 (emphasis
added). Here, the Tracer Dye Study and the County’s
concessions conclusively establish that pollutants discharged from all four wells emerged at discrete points
in the Pacific Ocean, with 64 percent of the wells’ pollutants reaching the ocean. The Study also traced a
3
The EPA as amicus curiae proposes a liability rule requiring a “direct hydrological connection” between the point source
and the navigable water. Regardless of whether that standard is
entitled to any deference, it reads two words into the CWA (“direct” and “hydrological”) that are not there. Our rule adopted
here, by contrast, better aligns with the statutory text and requires only a “fairly traceable” connection, consistent with Article
III standing principles. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016). Those principles are especially relevant in the
CWA context because the law authorizes citizen suits to enforce
its provisions. See § 1365. Our approach is firmly grounded in our
case law, which distinguishes between point source and nonpoint
source pollution based on whether pollutants can be “traced” or
are “traceable” back to a point source. See Alaska, 749 F.2d at 558;
Ecological Rights, 713 F.3d at 508; supra, at 12-15.
App. 25
southwesterly path from the wells’ point source discharges to the ocean. We leave for another day the task
of determining when, if ever, the connection between a
point source and a navigable water is too tenuous to
support liability under the CWA.
c. Disposals of Pollutants into Wells
Finally, the County contends its effluent injections
are not discharges into navigable waters but “disposal[s] of pollutants into wells,” and that the Act categorically excludes well disposals from the permitting
requirements of § 1342. See, e.g., § 1342(b)(1)(D). As the
County urges a “construction that the statute on its
face does not permit,” we “reject” it here. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 881 (9th
Cir. 2001) (citation and internal quotation marks omitted).
The County first relies on § 1342(b), which permits
the EPA to delegate CWA authority to “each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction.”
So long as the State “submit[s] to the Administrator a
full and complete description of [its] program” and “a
statement . . . that the laws of [the] State . . . provide
adequate authority to carry out the described program,” the State may “issue [NPDES] permits which[,]
[among other things] control the disposal of pollutants
into wells.” § 1342(b)(1)(D) (emphasis added). The
County contends based on this language the NPDES
permitting requirements do not apply at all to well
App. 26
disposals. Not so. The plain language of the statute
clearly permits States to issue NDPES permits for
well disposals, and such permits are required only
for “discharges into navigable waters.” Id. § 131242(b)
[sic]; see also id. § 1342(a)(1). The provision furthermore makes no judgment about whether a “disposal”
always constitutes a “discharge” requiring a NPDES
permit. Indeed, only when a “disposal” is also a “discharge” is a permit required. See Inland Steel Co. v.
E.P.A., 901 F.2d 1419, 1422 (7th Cir. 1990) (noting
§ 1342(b)(1)(D) “was not intended to authorize [States
to] regulat[e] . . . all wells used to dispose of pollutants,
regardless of absence of any effects on navigable waters” (emphasis in original)).
The County also argues that under § 1342(b)(1)(D),
only the State, not the EPA, has authority to regulate
well disposals. This Court, however, has already
concluded the Act does not “expressly grant[ ] to the
EPA or [the administering] state agency the exclusive
authority to decide whether [there is a CWA violation],” even while recognizing § 1342 “suspend[s] the
availability of federal NPDES permits once a statepermitting program has been submitted and approved
by the EPA.” Ass’n to Protect Hammersley, Eld, and
Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1010-12
(9th Cir. 2002) (citing § 1342(c)(1)). That the administering state agency, HDOH, has “cho[sen] to sit on the
sidelines . . . is not a barrier to a citizen’s otherwise
proper federal suit to enforce the Clean Water Act” and
does not somehow “divest [this Court] of jurisdiction”
over this case. Id. at 1012; see also Cmty. Ass’n for
App. 27
Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d
943, 949-50 (9th Cir. 2002) (“Under the CWA[,] private
citizens may sue any person alleged to be in violation
of the conditions of an effluent standard or limitation
under the Act or of an order issued with respect to such
a standard or limitation by the Administrator of the
[EPA] or any state.” (citation omitted)).
The County next relies on § 1314(f )(2)(D), which
“directs the [EPA] to give States information on the
evaluation and control of [nonpoint source] ‘pollution
resulting from . . . [the disposal of pollutants in
wells].’ ” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe
of Indians, 541 U.S. 95, 106 (2004) (citing and quoting
§ 1314(f )(2)). According to the County, § 1314(f )(2)(D)
affirmatively establishes disposals into wells constitute nonpoint source pollution and that it need not obtain NPDES permits under the CWA. But the Supreme
Court itself acknowledged in South Florida that while
§ 1314(f )(2) listed a variety of circumstances constituting “nonpoint source[ ] [pollution]” – including well disposals – the provision “does not explicitly exempt
[these] nonpoint pollution sources from the NPDES
program if they also fall within the ‘point source’ definition.” Id. (emphasis added). Consistent with our
reading of § 1342(b)(1)(D), the implication here is that
well disposals do not always constitute nonpoint
source pollution. If pollutants from those wells are discharged into a navigable water from a discrete source,
that is point source pollution, and the polluter must
obtain an NPDES permit if it wants to avoid liability
under the CWA. See §§ 1311(a), 1342(a)(1).
App. 28
The CWA’s definition of “pollutant” also supports
this reading. See § 1362(6)(B). Under the Act, “[t]his
term [excludes] . . . water derived in association with
oil or gas production and disposed of in a well, if [1] the
well used either to facilitate production or for disposal
purposes is approved by authority of the State in which
the well is located, and [2] such State determines that
such injection or disposal will not result in the degradation of ground or surface water resources.” Id. (emphasis added). By contrast, pollutants “disposed of in
. . . well[s]” that “alter the water quality” of “surface
water[s]” are “subject to NPDES permitting requirements.” N. Plains Res. Council v. Fid. Expl. & Dev. Co.,
325 F.3d 1155, 1161-62 (9th Cir. 2003) (citing
§ 1362(6)(B)). Section 1362(6)(B), therefore, confirms
that contrary to the County’s contentions, the CWA
does not categorically exempt all well disposals from
the NPDES requirements. “Were we to conclude otherwise,” and create out of whole cloth a categorical exemption for well disposals, we would improperly
amend the statute and “undermine the integrity of [the
CWA’s] prohibitions.” Id. at 1162 (citation and internal
quotation marks omitted). We decline to do so here.
2. Fair Notice
“Due process requires that [a statute] provide fair
notice of what conduct is prohibited before a sanction
can be imposed.” United States v. Approximately 64,695
Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir. 2008)
(citation and internal quotation marks omitted). “To
provide sufficient notice, a statute . . . must give the
App. 29
person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act
accordingly.” Id. (citing Grayned v. City of Rockford,
408 U.S. 104, 108 (1972)) (internal quotation marks
omitted). If the “[p]lain [l]anguage of the [s]tatute” is
“sufficiently clear to warn a party about what is expected,” a court may find the party had “fair notice”
under the due process clause. Id.; see also Garvey v.
Nat’l Transp. Safety Bd., 190 F.3d 571, 584 (D.C. Cir.
1999) (finding the defendant had “fair notice” based on
“plain language” of regulation).
In determining whether there has been fair notice,
this Court must “first look to the language of the statute itself.” Shark Fins, 520 F.3d at 980 (citation omitted). Here, the Clean Water Act prohibits the
“discharge of any pollutant by any person.” § 1311(a).
The Act defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any
point source.” Id. § 1362(12) (internal quotation marks
omitted). A “point source” is “any discernible, confined
and discrete conveyance, including but not limited to
any . . . well . . . from which pollutants are or may be
discharged.” Id. § 1362(14) (internal quotation marks
omitted). Finally, there is an exception to the general
prohibition on point source pollution if a party obtains
an NPDES permit. Id. §§ 1311(a), 1342(a)(1).
It is undisputed the County “add[s] . . . pollutants”
– treated effluent – “to navigable waters” – the Pacific
Ocean – “from . . . point source[s]” – its four injection wells. See id. §§ 1362(6), (12), (14). As its actions
fall squarely within the “[p]lain [l]anguage of the
App. 30
[s]tatute,” we conclude the County had “fair notice” its
actions violated the CWA. See Shark Fins, 520 F.3d at
980; Garvey, 190 F.3d at 584; Lee v. Enter. Leasing Co.West, LLC, 30 F. Supp. 3d 1002, 1012 (D. Nev. 2014)
(finding “reasonable reading of the statute . . . afforded
[the] [d]efendants fair notice that their conduct was at
risk”).
But the County contends it did not have “fair notice” because the statutory text can be fairly read to
exclude the wells from the NPDES permit requirements. It argues again that pollution via its wells and
the groundwater is nonpoint source pollution not subject to the CWA’s prohibitions. Even so, “due process
does not demand unattainable feats of statutory clarity.” Planned Parenthood of Cent. and N. Ariz. v. State
of Ariz., 718 F.2d 938, 948 (9th Cir. 1983) (citation and
internal quotation marks omitted). That there is a “difference[ ] of opinion” on “the precise meaning of [the
CWA]” is “[ ]not . . . enough to render [it]” violative of
the due process clause. Id.
The County further contends it did not have “fair
notice” because HDOH – the state agency tasked with
administering the NPDES permit program – has
maintained an NPDES permit is unnecessary for the
wells. The County does not describe HDOH’s position
accurately. As late as April 2014, HDOH stated in a letter to the County it was still “in the process of determining if an NPDES permit is applicable” to the wells.
That HDOH has not solidified its position on the issue
does not affirmatively demonstrate it believes the permits are unnecessary, as the County contends. And the
App. 31
fact that the County “has been unable to receive an interpretation of the [CWA] from . . . [HDOH] officials
administering the program” is also “[ ]not . . . enough
to render [enforcement of the CWA]” unconstitutional.
Id. As a “reasonable person would [have] underst[oo]d
the [CWA]” as prohibiting the discharges here, enforcement of the statute does not violate the due process
clause. Id. at 948-49; see also Shark Fins, 520 F.3d at
980 (holding liability would attach if “regulation is . . .
sufficiently clear to warn a party about what is expected of it” (citation and internal quotation marks
omitted)).
CONCLUSION
At bottom, this case is about preventing the
County from doing indirectly that which it cannot do
directly. The County could not under the CWA build an
ocean outfall to dispose of pollutants directly into the
Pacific Ocean without an NPDES permit. It cannot do
so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions. Under the circumstances of this case, we
therefore affirm the district court’s summary judgment rulings finding the County discharged pollutants
from its wells into the Pacific Ocean, in violation of the
CWA, and further finding the County had fair notice of
what was prohibited.
AFFIRMED.
App. 32
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAI‘I WILDLIFE FUND, ) CIVIL NO.
a Hawaii non-profit
) 12-00198 SOM/BMK
corporation; SIERRA CLUB – ) ORDER DENYING
MAUI GROUP, a non-profit ) DEFENDANT’S MOTION
corporation; SURFRIDER ) FOR STAY AND
FOUNDATION, a non-profit ) GRANTING PLAINTIFFS’
corporation; and WEST
) MOTION FOR PARTIAL
MAUI PRESERVATION
) SUMMARY JUDGMENT
ASSOCIATION, a Hawaii )
non-profit corporation,
) (Filed May 30, 2014)
)
Plaintiffs,
)
vs.
)
)
COUNTY OF MAUI,
)
Defendant.
)
ORDER DENYING DEFENDANT’S MOTION
FOR STAY AND GRANTING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
I.
INTRODUCTION.
Plaintiffs Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation, and West Maui Preservation Association move for partial summary judgment against
Defendant County of Maui, arguing that the undisputed evidence demonstrates that the County has violated the Clean Water Act by discharging effluent,
without a National Pollutant Discharge Elimination
System (“NPDES”) permit, at four injection wells at
App. 33
the Lahaina Wastewater Reclamation Facility (“LWRF”).
Plaintiffs contend that the wastewater eventually finds
its way into the ocean on Maui’s west shore.
The County brings its own motion, arguing that,
given the County’s application for an NPDES permit,
the court should dismiss or stay this case to give Hawaii’s Department of Health and the Environmental
Protection Agency an opportunity to consider the need
for a permit in the first instance.
The County concedes, and the undisputed evidence shows, that pollutant discharged at the two largest wells at the LWRF is migrating into the ocean. The
court has not been given any firm date for a final decision on the County’s NPDES permit application. The
court therefore denies the County’s motion for stay or
dismissal and grants Plaintiffs’ motion for partial summary judgment.
II.
BACKGROUND.
The County of Maui operates the LWRF, a wastewater treatment facility approximately three miles
north of the town of Lahaina on the island of Maui. See
Tracer Dye Study Final Report at ES-21, ECF No. 7310. The facility receives approximately four million
gallons per day of sewage from a collection system
serving approximately 40,000 people. The facility filters and disinfects the sewage, then releases the
treated effluent (sometimes called “reclaimed water”
or “wastewater”) into four on-site injections wells. Id.
The injection wells are long pipes into which effluent
App. 34
is pumped. The effluent then travels approximately
200 feet underground into a shallow groundwater aquifer beneath the facility. See 1993 Injection Well Report, ECF No. 73-21. While “the precise depth of this
aquifer fluctuates somewhat, depending on water inputs and other conditions,” it contains “a sufficient
quantity of ground water to supply a public water system.” UIC Consent Decree at 28-29, ECF No. 73-24.
The LWRF typically discharges three to five million
gallons of effluent into the four injection wells on a
daily basis. See Tracer Dye Study Final Report at 1-16.
Approximately 80% of the effluent is discharged from
wells 3 and 4. Id. at ES-21.
It is undisputed that effluent pumped into injection wells 3 and 4 eventually finds its way to the Pacific
Ocean, emerging through “submarine springs” in the
waters off Kahekili Beach on Maui’s west shore. Id. at
ES-2, 3. This finding was the conclusion of a study conducted jointly by the EPA, the Hawaii Department of
Health (“DOH”), the U.S. Army Engineer Research and
Development Center, and researchers at the University of Hawaii. The study involved placing tracer dye
into each of the LWRF injection wells and monitoring
the submarine seeps off Kahekili Beach to see if and
when the dye would flow into the ocean. Id. Dye from
wells 1 and 2 did not emerge at the seeps, but the dye
introduced into wells 3 and 4 was detected eighty-four
days after being placed in the wells. Id. The study concluded that the presence of the dye “conclusively
demonstrate[s] that a hydrogeologic connection exists
between LWRF Injection Wells 3 and 4 and the nearby
App. 35
coastal waters of West Maui.” Id. at ES3. The study further estimated that “64% of the dye injected into Wells
3 and 4 will [eventually be] discharged at the submarine spring areas.” Id. As a result of that finding, the
report also concluded that “64% of the treated wastewater injected into [the] wells currently discharges
from the submarine spring areas” and into the ocean.
Id.
The County appears to have been aware for some
time of the hydrologic connection between the aquifer
under the LWRF and the ocean. A 1991 environmental
assessment, conducted by the County’s Department of
Public Works, noted that treated effluent – including
suspended solids, dissolved oxygen, nitrogen, and
phosphorous – flows from the injection wells into the
ocean. See LWRF Environmental Assessment, ECF No.
73-33.
In 2007, the University of Hawaii at Manoa conducted a study that showed an elevated level of a nitrogen isotope in algae growing in nearshore waters
south of the LWRF. See Declaration of Jennifer E.
Smith ¶ 8-9, ECF No. 72-2. The study concluded that
the nitrogen came from the LWRF. Id. The United
States Geological Survey also did a study that found
“wastewater presence” in the ocean and elevated levels
of a nitrogen isotope in ocean water samples. See A Multitracer Approach to Detecting Wastewater Plumes from
Municipal Injection Wells in Nearshore Marine Waters
at Kihei and Lahaina, ECF No. 73-13.
App. 36
In 2010, the EPA responded to the County’s request to renew its Underground Injection Control
(“UIC”) permit for the LWRF by informing the County
that recent studies “strongly suggest that effluent from
the facility’s injection wells is discharging into the near
shore coastal zone of the Pacific Ocean.” EPA Letter,
ECF No. 73-34.
Plaintiffs’ experts contend that the water emerging from the submarine seeps near Kahekili beach is
significantly affecting the chemical, physical, and biological integrity of the nearshore water. See generally
Declaration of Adina Paytan, ECF No. 73-1; Smith
Decl. In particular, Plaintiffs’ experts conclude that the
water near the seeps has elevated levels of inorganic
nitrogen and phosphorus, low salinity, low pH, and
high temperature. See Paytan Decl. ¶¶ 5, 23-36; Smith
Decl. ¶¶ 13-40. The County’s experts admit that the
water directly above the seeps bears this properties,
but argues that when the water mixes with ocean water these effects rapidly diminish. Declaration of Steven Dollar ¶¶ 9-14, ECF No. 79-2; Declaration of Susan
C. Paulsen ¶¶ 19, 21-23, ECF No. 79-3. The County’s
experts conclude that the effect on nearshore water is
not significant. Id.
Plaintiffs argue that the impact of the effluent on
Kahekili’s nearshore waters is “more than theoretical.”
Smith Decl. ¶ 22. Plaintiffs’ experts state that, because
of the additional nitrogen and phosphorus, the coral
reefs at Kahekili have been repeatedly subjected to algal blooms, which have contributed to a dramatic decline in coral cover. Id. ¶ 13. Plaintiffs’ experts also say
App. 37
that the effluent flowing into the ocean has substantially lower pH levels and oxygen concentration than
the receiving water. Smith Decl. ¶¶ 29, 35; Paytan
Decl. ¶¶ 31, 34. The low pH, Plaintiffs’ experts say, is
causing some species of reef-building corals and coralline algae to dissolve and die, and the low level of oxygen is suffocating coral, leading to loss of coral tissue
and coral death. Smith Decl. ¶¶ 30, 34. In addition,
Plaintiffs experts say that the effluent has lower salinity and higher temperature than the receiving water,
properties that can also endanger and kill coral. See
Paytan Decl. ¶¶ 25-29, 34; Smith Decl. ¶¶ 31-33, 37-38.
The County’s expert argues, on the other hand,
that visual inspection of the coral reveals that “all reef
areas appeared essentially pristine,” and that he “observed [no] bleached, diseased, or otherwise stressed
corals.” Dollar Decl. ¶ 44. The County points to photographs of the reef close to the seeps, which appear to
have healthy coral. Defendants’ Exhs. 6 to 11, ECF
Nos. 79-9, 79-10, 79-11, 79-12, 79-13 and 79-14.
In August 2001, the County of Maui and the EPA
entered into a consent decree regarding the injection
wells and compliance with the Safe Drinking Water
Act, 42 U.S.C. §§ 300h-2(c), 300j-4(a). See ECF No. 8-3.
This consent decree did not discuss whether an
NPDES permit was needed for the injection wells under the Clean Water Act, although it required the
County to obtain a water quality certification under
section 401 of the Clean Water Act, 33 U.S.C. § 1341,
from the State of Hawaii. The County has applied for
that certification, but, as of March 6, 2014, not even a
App. 38
preliminary determination had been made as to whether
the County will receive such certification. See DOH letter dated March 6, 2014, ECF No. 71-4.
The County has also applied for an NPDES permit. Id. Despite maintaining that such a permit is not
required, the County submitted its application for the
permit to the State’s DOH on November 14, 2012,
which was after this lawsuit was filed. The application
was forwarded to the EPA on November 20, 2012. Id.
As of March 6, 2014, the DOH had “not made a tentative or preliminary determination” on the application,
nor received any comments from EPA. Id. However, after the hearing on the present motions, the County received a draft permit and was invited to comment on
the draft by June 9, 2014. See ECF No. 106. The DOH
says that, after receiving comments from Plaintiffs’
counsel, the County, and the EPA, it will revise the
draft permit if appropriate and proceed to notice and a
thirty-day public comment period and public hearing.
Depending on the public comments it receives, DOH
intends to issue a final permit within a few months
thereafter. Id.
Plaintiffs contend that the County’s continued discharge of wastewater without an NPDES permit violates the Clean Water Act.
The Clean Water Act, passed in 1972, was intended by Congress “to restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a). To further that objective,
the Clean Water Act prohibits the “discharge of any
App. 39
pollutant” unless certain provisions of the Clean Water
Act are complied with. See 33 U.S.C. § 1311(a). The
Clean Water Act defines “discharge of a pollutant” as
“any addition of any pollutant to navigable waters
from any point source.” 33 U.S.C. § 1362(12). In relevant part, the Clean Water Act defines “pollutant”
as “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.” 33 U.S.C. § 1362(6). The
Clean Water Act defines “navigable waters” as “the waters of the United States, including the territorial
seas.” 33 U.S.C. § 1362(7). The Clean Water Act defines
“point source” as
any discernible, confined and discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other
floating craft, from which pollutants are or
may be discharged. This term does not include
agricultural stormwater discharges and return flows from irrigated agriculture.
33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342.
The Clean Water Act is enforced by state and federal authorities working together. Under the Act, a
state may apply for a transfer of permitting authority
App. 40
to state officials. See 33 U.S.C. § 1342. Hawaii obtained
permitting authority in 1974. 48 F.R. 15662-01. Once
“authority is transferred, then state officials – not the
federal EPA – have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.” Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644,
650 (2007). The state must advise the EPA of each permit it proposes to issue, and the EPA may object to any
permit. 33 U.S.C. §§ 1342(d)(1), (2). If the state does not
adequately address EPA’s concerns, authority over the
permit reverts to the EPA. Id. § 1342(d)(4).
Plaintiffs sued the County, seeking to compel it to
apply for and comply with the terms of an NPDES permit, and to pay civil penalties for its earlier allegedly
unlawful discharge. The County moved to dismiss on
various grounds. Among other things, the County contended that the court should defer acting until the
DOH and the EPA had first reviewed what was then
only a future NPDES permit application. On August
08, 2012, 2012 WL 3263093, this court denied the
County’s motion to dismiss. See ECF No. 34. As noted
above, subsequent to that dismissal, the County applied for an NPDES permit. It now renews its argument that this action should be dismissed or stayed
until the DOH and the EPA have ruled on the permit
application. The County also moves to strike several of
the declarations introduced into evidence by Plaintiffs,
including portions of the declarations of experts Jennifer Smith and Adina Paytan, and asks this court to
take judicial notice of several documents.
App. 41
Plaintiffs move for summary judgment, arguing
that, in light of the findings of the tracer study, the undisputed evidence demonstrates that the County has
violated the Clean Water Act.
III. ANALYSIS
A. Requests that the Court Strike Evidence
and Take Judicial Notice.
Recognizing that the County’s motion to strike evidence may bear on the contents of the record that the
court will consult to resolve the parties’ substantive
motions, the court addresses that motion first.
The County first challenges the declarations of
Hannah Bernard, Lauren Campbell, Antoinette Lucienne de Naie, Sharyn Matin, and Gary Savage, all of
whom are representatives of the various organizations
bringing suit. The County argues that certain statements in these declarations constitute hearsay and/or
impermissible legal or scientific opinion that the declarants are not qualified to give. Plaintiffs respond
that all of these declarations simply support the various Plaintiff organizations’ standing, and that none of
the opinions is intended to bear on the question of the
County’s liability. The County has not challenged any
Plaintiff ’s standing. There is therefore no reason to
strike the declarations.
More significantly, the County challenges the declarations of both of Plaintiffs’ experts, Adina Paytan
and Jennifer Smith.
App. 42
First, the County argues that Paytan’s only qualification is in chemical oceanography and that she
therefore has no expertise regarding the effects of the
ocean’s chemistry on marine biology and on coastal
ecosystems. Plaintiffs introduce a supplementary declaration by Paytan, which notes that chemical oceanography is an interdisciplinary field that includes the
study of the effects of the ocean’s chemistry on marine
biology, and that Paytan runs a biogeochemistry laboratory at the University of California, Santa Cruz. Paytan Opp. Decl. ¶¶ 2, 3, ECF No. 92-1. According to the
declaration, biogeochemists study how chemical cycles
affect biological activity, and the research Paytan has
directly conducted or overseen at the laboratory has
been published in numerous peer-reviewed journals
that focus on biogeochemistry and marine biology, including peer-reviewed articles specifically addressing
effects on coral reefs. Id. The County’s argument appears largely dependent on Paytan’s own characterization of herself as qualified in “chemical oceanography”
and the County’s assertion that such a qualification is
inadequate.
The County has not asked for an evidentiary hearing under Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993), regarding Paytan’s alleged lack of
expert qualification. The assertions in the County’s
motion do not, without more, establish that Paytan is
not qualified as an expert. This court therefore declines
to strike any part of her statements.
Second, the County challenges statements made
by both Paytan and Smith regarding the theoretical
App. 43
effects of elevated levels of nitrogen, phosphorus, and
oxygen on marine life. The County describes Paytan
and Smith’s testimony as “speculation” and therefore
inadmissible. However, the theoretical contentions
made by both Smith and Paytan are not speculative.
Rather, they appear to be based on “the expert[s’] scientific, technical, or other specialized knowledge.” Fed.
R. Evid. 702. The declarations directly relate to the potential effects effluent may have on ocean water, and
therefore go to whether there is a significant nexus between the aquifer and the ocean. Even if such statements were insufficient to establish such a nexus in
themselves, the County does not show that they are either irrelevant or prejudicial with respect to the matters that are to be decided on the present motions.
Third, the County objects to the term “wastewater,” used in both the Paytan and Smith declarations
and in a declaration submitted by Plaintiffs’ attorney,
David Henkin. The County believes the material discharged from the LWRF should be described as “reclaimed water” or “effluent.” “Wastewater” is a term
that has been used throughout this litigation to refer
to treated sewage that emerges from the LWRF and is
the term used by the independently produced Tracer
Dye Study. It is also what the “W” stands for in
“LWRF,” the acronym the County itself uses to describe
the Lahaina facility. The court understands that the
treatment of sewage at LWRF may eliminate various
toxins from the water, and even make it safe for drinking. Whether this treated water is referred to as
“wastewater,” “effluent,” or “reclaimed water” has no
App. 44
bearing on any of the County’s arguments. The court
understands the terms being used, and there is no prejudice to any party flowing from the use of the term
“wastewater.”
Finally, with regard to Plaintiffs’ experts, the
County objects that Smith’s algal bloom study – Smith
Decl. ¶ 9 – is prejudicial because it analyzes the impact
of water taken directly from the LWRF, without taking
into account the diffusion and mixing that the effluent undergoes as it travels through groundwater
and ocean water. The court recognizes that Smith’s
study does not account for these diffusion and mixing
effects, but nevertheless finds the study’s analysis probative as to the potential effect that effluent has on
marine life. This is a matter going to the weight of the
evidence, not its admissibility. Defendant was free to
seek its own analysis or expert testimony showing that
the diffusive effects of the effluent’s journey undermine Smith’s analysis. The impact of the alleged diffusion is a matter in dispute between the experts, not a
reason to strike one side’s expert testimony.
The County also challenges parts of the declaration of David Henkin. The County argues that various
statements describing data in the Henkin declaration
should be stricken because Henkin is not an expert.
The County asks that the court consider the data without his interpretation. Henkin’s statements do no more
than point to other evidence in the record, but, in any
event, the court does not rely on the Henkin declaration in interpreting any study in the record. The
County further suggests that it is incorrect for Henkin
App. 45
to call the LWRF discharges “unpermitted” because
the County held various permits other than a NPDES
permit. There is no prejudice caused by the use of the
word “unpermitted,” which the court construes as referring specifically to an NPDES permit and not all
permits. Finally, Plaintiffs admit that the Henkin declaration’s description of Defendant’s NPDES application as “incomplete” is better suited to a legal brief
than a declaration. The court does not rely on this
statement in paragraph 29 of Henkin’s declaration.
For the reasons stated above, this court denies the
County’s motion to strike evidence. Plaintiffs do not oppose either of the County’s two requests for judicial notice. ECF Nos. 80, 89. Those requests are therefore
granted.
B. Primary Jurisdiction.
The Ninth Circuit has stated that a defendant
must obtain an NPDES permit when it “(1) discharge[s]
(2) a pollutant (3) to navigable waters (4) from a point
source.” Headwaters, Inc. v. Talent Irrigation Dist., 243
F.3d 526, 532 (9th Cir. 2001). It is not disputed that the
effluent being discharged at the LWRF constitutes a
pollutant that is being discharged from a point source.
The only area of dispute between the parties is whether
the discharge into the aquifer beneath the facility constitutes a discharge into “navigable waters.”
The County argues that for the aquifer itself to be
considered “navigable water” under the Clean Water Act,
it must have both “a direct and immediate hydrological
App. 46
connection” to the ocean and “significantly affect the
chemical, physical, and biological integrity” of the
ocean waters. The County argues that this is a factsensitive inquiry best left to the DOH and the EPA.
The County therefore moves for judgment on the
pleadings, or, in the alternative, for a stay, asking this
court to rule that the DOH and the EPA have primary
jurisdiction to decide whether the County requires an
NPDES permit to discharge effluent at the Lahaina facility. Even if this court were to conclude that the agencies have primary jurisdiction, the court would not
enter judgment on the pleadings in the County’s favor.
“The rule in this Circuit is that where a court suspends proceedings in order to give preliminary deference
to an independent adjudicating body . . . jurisdiction
should be retained by a stay of proceedings, not relinquished by a dismissal.” United States v. Henri, 828
F.2d 526, 528 (9th Cir. 1987) (internal quotation omitted). Therefore, the court denies the County’s motion
for judgment on the pleadings and considers only its
request for a stay.
The doctrine of primary jurisdiction “is a prudential
doctrine under which courts may, under appropriate circumstances, determine that the initial decisionmaking
responsibility should be performed by the relevant
agency rather than the courts.” Syntek Semiconductor
Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 780 (9th
Cir. 2002). Primary jurisdiction “is not a doctrine that
implicates the subject matter jurisdiction of the federal
courts,” and it is left “to the sound discretion of the
App. 47
court” whether to stay a case pending resolution of an
agency proceeding. Id. at 780-81.
“No fixed formula exists for applying the [primary
jurisdiction] doctrine.” Davel Commc’ns, Inc. v. Qwest
Corp., 460 F.3d 1075, 1086 (9th Cir. 2006) (internal
quotation marks and citation omitted). However, the
Ninth Circuit has stated that the doctrine “should be
used ‘if a claim requires resolution of an issue of first
impression, or of a particularly complicated issue that
Congress has committed to a regulatory agency, and if
protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.’ ” Lyon v. Gila River Indian Cmty., 626
F.3d 1059, 1075 (9th Cir. 2010) (quoting Clark v. Time
Warner Cable, 523 F.3d 1110, 1115 (9th Cir. 2008)).
The County argues that the primary objective of
this lawsuit is to compel the County to apply for an
NPDES permit, and that, because that application has
been made, this court should allow the DOH and the
EPA to decide whether a permit is required. The County
further contends that this case involves “highly technical fact-specific inquiries” that require “the specialized expertise typically possessed by the agencies.”
Memo. in Support of Primary Jurisdiction Motion at
10-11, ECF No. 71-1.
The decision as to whether the County requires an
NPDES permit is certainly within the jurisdiction and
competence of the DOH and the EPA. However, “while
competence of an agency to pass on an issue is a necessary condition to the application of the [primary
App. 48
jurisdiction] doctrine, competence alone is not sufficient.” United States v. Culliton, 328 F.3d 1074, 1082
(9th Cir. 2003) (internal quotation marks omitted).
Given the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,”
Colorado River Water Conservation District v. United
States, 424 U.S. 800, 817-18 (1976), the primary jurisdiction doctrine should not be invoked unless “it would
be inconsistent with the statutory scheme to deny the
agency’s power to resolve the issues in question.” Culliton, 328 F.3d at 1082. See also Golden Hill Paugussett
Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir. 1994)
(“Whether there should be judicial forbearance hinges
. . . on the authority Congress delegated to the agency
in the legislative scheme.”).
It would not be inconsistent with the Clean Water
Act’s legislative scheme for this court to decide the
question of whether the County requires an NPDES
permit for its discharge at the LWRF. The citizen suit
provision in the Clean Water Act was specifically designed to allow courts to ensure direct compliance with
the Act’s requirements. The presence of the citizen suit
provision demonstrates that Congress believed courts
were competent to make fact-sensitive determinations
over whether a particular discharge requires a permit.
Congress could easily have committed that judgment
to the sole discretion of an agency, or, at the very least,
limited citizen suits to situations in which an agency
had taken no action. Congress did not do that.
App. 49
The Clean Water Act contains other express limitations on citizen suits. For example, it bars suits undertaken prior to the giving of notice to the agency and
suits initiated during the pendency of any governmentinitiated court action. See 33 U.S.C. § 1365(b). The absence of any textual limitation on citizen suits initiated
during agency review is a strong indication that Congress intended such suits to proceed. See Apalachicola
Riverkeeper v. Taylor Energy Co., LLC, 954 F. Supp. 2d
448, 460 (E.D. La. 2013) (“If Congress had intended for
the primary jurisdiction doctrine to bar citizen suits, it
would have included the doctrine among the specifically delineated circumstances under which citizen
suits are barred.”). See also Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc., 299 F.3d
1007, 1012 (9th Cir. 2002) (allowing citizen suit despite
prior agency determination of no NPDES permit requirement, because “Congress [has] empowered citizens to
pursue enforcement of the Clean Water Act when all
procedural requirements [are] satisfied”).
Moreover, courts are plainly competent to address
the types of questions raised by the present citizen
suit, such as whether there is a hydrologic connection
and significant nexus between two bodies of water. Indeed, those are precisely the types of determinations
that the Supreme Court made in Rapanos v. United
States, 547 U.S. 715 (2006), and that the Ninth Circuit
made in Northern California River Watch v. City of
Healdsburg, 496 F.3d 993 (9th Cir. 2007). The very existence of the citizen suit provision in the Clean Water
App. 50
Act indicates that Congress expected courts to make
such judgments.
The County’s references to Montgomery Environmental Coalition Citizens Coordinating Committee of
Friendship Heights v. Washington Suburban Sanitary
Commission, 607 F.2d 378 (D.C. Cir. 1979), and Friends
of Santa Fe County v. LAC Minerals, Inc., 892 F. Supp.
1333 (D. N.M. 1995), are unpersuasive. Those cases
“concerned the contents of a NPDES permit . . . and
not whether a permit should be issued in the first
place.” Nat’l Wildlife Fed’n v. Consumers Power Co., 657
F. Supp. 989, 1001 (W.D. Mich. 1987), rev’d on other
grounds, 862 F.2d 580 (6th Cir. 1988). Here, by contrast, “[r]esolution of plaintiffs’ claim[s] does not require the court to set effluent standards or to write a
permit for the defendant.” Sierra Club v. El Paso Gold
Mines, Inc., 198 F. Supp. 2d 1265, 1271 (D. Colo. 2002),
rev’d on other grounds, 421 F.3d 1133 (10th Cir. 2005).
Instead, all that is required of this court is a determination as to whether the County is discharging a pollutant from a point source into the navigable waters of
the United States. Such a judgment is within the conventional expertise of courts and does not require the
type of complex technical judgment at issue in Montgomery and LAC Minerals.
The County argues, “Given that the administrative process is underway, an agency decision may make
a court order moot, or, should this litigation proceed, a
court order could subject the County to conflicting obligations.” Memo. in Support of Primary Jurisdiction
Motion at 17. However, even if the DOH and the EPA
App. 51
were to render a decision during the pendency of this
suit, or shortly afterwards, that would neither make
the case moot nor create conflicting obligations. “[A]
court may, in entertaining a citizen suit, decide whether
a discharge of particular matter into navigable waters
violates the CWA even though the regulating agency
determined that the discharge was not subject to the
requirement of a permit.” San Francisco Baykeeper v.
Cargill Salt Div., 481 F.3d 700, 706 (9th Cir. 2007). If
this court requires a permit, the DOH and the EPA
cannot supersede a decision by this court by determining that an NPDES permit is not required. See Hammersley, 299 F.3d at 1012. And if the agencies require
an NPDES permit, that does not render this entire
case moot, because the County could still be liable for
the payment of civil penalties. See Chafin v. Chafin,
133 S. Ct. 1017, 1023 (2013) (“[A] case becomes moot
only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”) (internal quotation marks omitted). In other words, there is
no discernible harm in proceeding with this litigation
while the agencies consider the County’s application.
By contrast, further delay in this case will result
in the continued alleged discharge of pollutants into
the ocean. See Lockyer v. Mirant Corp., 398 F.3d 1098,
1110 (9th Cir. 2005) (noting that in assessing whether
to issue a stay, a court must consider “the possible
damage which may result from the granting of [the]
stay”). Over a year and a half has passed since the
County submitted its permit application.
App. 52
The recent issuance of a draft permit suggests
that the DOH has concluded that some permit is indeed required. That is, the County may not presently
argue that it expects the DOH to announce that no permit is needed. While not privy to the content of the
draft permit, this court assumes that its details remain
to be resolved. No firm deadline for resolution has been
set. At most, the DOH has set a deadline for comments
by the EPA, the County, and Plaintiffs’ counsel. Revisions may follow, then an opportunity for the public to
comment. The best the DOH can predict is the issuance
of a final permit “a few months” after it reacts to public
comment. The County is therefore asking for the disfavored remedy of an “indefinite, and potentially lengthy”
stay for as long as administrative proceedings may
continue. See Yong v. I.N.S., 208 F.3d 1116, 1121 (9th
Cir. 2000).1
It is well settled that “a stay should not be granted
unless it appears likely the other proceedings will be
concluded within a reasonable time.” Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059,
1066 (9th Cir. 2007). If a court were to grant an indefinite stay in circumstances such as those now before
this court, a defendant would be able to buy itself
1
At the hearing on the present motion, the County suggested, as an alternative to an indefinite stay, a stay of three to
six months, based on its suggestion that the DOH was concluding
a relevant study in July. The County provides no evidence, however, that the DOH and the EPA are likely to render a decision
soon after this alleged study. Nor does it show why this court cannot or should not address the need for an NPDES permit absent
this study.
App. 53
potentially years of further pollution through lastminute applications for an NPDES permit. Indeed, a
polluting entity would be able to spend years in litigation prior to even applying for an NPDES permit, then
seek to stay proceedings for several more years during
the pendency of a belatedly submitted application, all
the while continuing to release pollutants in violation
of the Clean Water Act. An application for an NPDES
permit, without more, cannot justify a lengthy or indefinite stay.
Congress placed no restrictions on citizen suits
during the pendency of administrative proceedings,
and the County can identify no particular harm associated with allowing this particular suit to proceed.
“The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997).
The County has failed to meet its burden and, as a result, no stay is ordered.
C. Summary Judgment.
1. Legal standard.
Summary judgment shall be granted when “the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.
2000). The movants must support their position that a
material fact is or is not genuinely disputed by either
“citing to particular parts of materials in the record,
including depositions, documents, electronically stored
App. 54
information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only), admissions, interrogatory answers, or other
materials”; or “showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c). One
of the principal purposes of summary judgment is to
identify and dispose of factually unsupported claims
and defenses. Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986).
Summary judgment must be granted against a
party that fails to demonstrate facts to establish what
will be an essential element at trial. See id. at 323. The
burden initially falls on the moving party to identify
for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
1987) (citing Celotex Corp., 477 U.S. at 323). “When the
moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth
specific facts showing that there is a genuine issue for
trial. T.W. Elec. Serv., 809 F.2d at 630. At least some
“ ‘significant probative evidence tending to support the
complaint’ ” must be produced. Id. (quoting First Nat’l
App. 55
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290
(1968)); see also Addisu, 198 F.3d at 1134 (“A scintilla
of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes
the non-moving party’s claim implausible, that party
must come forward with more persuasive evidence
than would otherwise be necessary to show that there
is a genuine issue for trial.” Cal. Arch’l Bldg. Prods.,
Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475
U.S. at 587). Accord Addisu, 198 F.3d at 1134 (“There
must be enough doubt for a ‘reasonable trier of fact’ to
find for plaintiffs in order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the
court must view all evidence and inferences in the light
most favorable to the nonmoving party. T.W. Elec. Serv.,
809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts
that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by
the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the
judge must assume the truth of the evidence set forth
by the nonmoving party with respect to that fact.” Id.
App. 56
2. A party is liable under the Clean Water Act if, without an NPDES permit,
it indirectly discharges a pollutant
into the ocean through a groundwater conduit.
The County contends that, to prevail, Plaintiffs
must show that the aquifer beneath the LWRF is “navigable water” under the jurisdiction of the Clean Water
Act.
It has long been settled “that the meaning of ‘navigable waters’ in the CWA is broader than the traditional understanding of that term.” Rapanos, 547 U.S.
at 731 (2006). “[T]he term ‘navigable’ is of ‘limited import’ and . . . Congress [has] evidenced its intent to
‘regulate at least some waters that would not be
deemed ‘navigable’ under the classical understanding
of that term.’ ” Solid Waste Agency of N. Cook Cnty. v.
U.S. Army Corps of Engineers, 531 U.S. 159, 167 (2001)
(quoting United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 133 (1985)).
The framework for understanding what waters
are regulable under the Clean Water Act beyond such
“navigable-in-fact” water comes from the Supreme
Court’s decision in Rapanos. Rapanos presented the
Court with the question of whether wetlands adjacent
to tributaries of navigable-in-fact water could be described as regulable “waters of the United States.”
The Court split 4-4-1, with the four Justices in the plurality limiting the definition of “navigable water” under the Act to “those relatively permanent, standing or
App. 57
continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’ ”
Rapanos, 547 U.S. at 739 (quoting Webster’s New International Dictionary 2882 (2d ed.)). The four Justices
in the dissent viewed all wetlands adjacent to tributaries of navigable waters as protected under the Act. Id.
at 797.
Justice Kennedy, concurring with the plurality, examined whether there was a hydrologic connection sufficient to establish a “significant nexus.” See id. at 786.
Under Justice Kennedy’s view, a “significant nexus”
exists “if . . . wetlands, either alone or in combination
with similarly situated lands in the region, significantly
affect the chemical, physical, and biological integrity of
other covered waters more readily understood as ‘navigable.’ ” Id. at 780. Justice Kennedy opined that this
nexus is not satisfied by a “hydrologic linkage” that is
“speculative or insubstantial,” but wetlands adjacent
to navigable waterways are covered by the Act given
“the reasonable inference of ecologic interconnnection
[sic]” with navigable-in-fact water. Id.
In Healdsburg, the Ninth Circuit read Justice
Kennedy’s concurrence as providing the controlling
rule. 496 F.3d at 999-1000. Healdsburg involved a
waste treatment plant that discharged sewage into a
body of water known as “Basalt Pond,” a rock quarry
pit that was filled with water from a surrounding aquifer located next to the Russian River. See id. at 995.
The Russian River and Basalt Pond were situated on
top of a gravel bed saturated with water such that
App. 58
there was “a continuous passage of water between
Basalt Pond and the Russian River.” Id. at 997. The
Ninth Circuit deemed the unpermitted discharge of
pollutants into Basalt Pond to be a violation of the
Clean Water Act. Noting that “water from the Pond
seeps into the river through both the surface wetlands
and the underground aquifer” and that “this hydrological connection . . . [had] a significant effect on the
chemical, physical, and biological integrity of the Russian River,” the Ninth Circuit held that the relationship between the two bodies of water was “sufficient to
confer jurisdiction under the Act pursuant to Justice
Kennedy’s substantial nexus test.” Id. at 1000.
Although neither Rapanos nor Healdsburg addressed the context of groundwater, the County argues
that, in Healdsburg the Ninth Circuit established a
two-part test for determining whether there is a significant nexus between bodies of water, including groundwater. The County says that, given this test, Plaintiffs
must show both that a “hydrological connection exists
between the Lahaina Facility’s UIC groundwater discharges and coastal waters” and that “there are significant physical, chemical and biological impacts as a
result of the connection to warrant issuance of an
NPDES permit.” See Defendant’s Primary Jurisdiction
brief at 10-11. Whether or not this reading of Healdsburg is correct, the parties appear to agree that such a
two-part test is a reasonable interpretation of the
standard Plaintiffs must meet to show that the aquifer
under LWRF is itself “navigable water” under the Act.
App. 59
However, this court concludes that such a showing
is not necessarily the only way in which Plaintiffs may
prevail. Under this court’s reading of the Clean Water
Act and the court’s extrapolation from appellate law,
Plaintiffs may also prevail if they show that the discharge into the groundwater below the LWRF is functionally equivalent to a discharge into the ocean itself.
That is, liability arises even if the groundwater under
the LWRF is not itself protected by the Clean Water
Act, as long as the groundwater is a conduit through
which pollutants are reaching navigable-in-fact water.
The plurality in Rapanos made clear that the prohibition in the Clean Water Act is not limited to “the
addition of any pollutant directly to navigable waters
from any point source,” but rather extends to “the addition of any pollutant to navigable waters.” Rapanos,
547 U.S. at 743 (emphasis in original) (internal quotation marks omitted). “Thus, . . . lower courts have held
that the discharge into intermittent channels of any
pollutant that naturally washes downstream likely violates § 1311(a), even if the pollutants discharged from
a point source do not emit directly into covered waters,
but pass through conveyances in between.” Id. (internal quotation marks omitted).
The Rapanos plurality also approvingly noted that
“many courts have held that . . . upstream, intermittently flowing channels themselves constitute “point
sources” under the Act.” Rapanos, 547 U.S. at 743. The
definition of “point source” under the Clean Water Act
includes “any discernible, confined and discrete conveyance, including . . . but not limited to any conduit
App. 60
. . . from which pollutants are or may be discharged.”
33 U.S.C. § 1362(14). The Act specifically excludes from
the definition of a point source “agricultural stormwater discharges and return flows from irrigated agriculture.” Id. It may be inferred from this narrow list of
exclusions that Congress sought to include sufficiently
“confined and discrete” groundwater conduits as “point
sources” under the Act. See Tang v. Reno, 77 F.3d 1194,
1197 (9th Cir. 1996) (“An item which is omitted from a
list of exclusions is presumed not to be excluded.”) (internal quotation marks omitted).
There is nothing inherent about groundwater
conveyances and surface water conveyances that requires distinguishing between these conduits under
the Clean Water Act. When either type of waterway is
a conduit through which pollutants reach the ocean,
then there has been the “addition of [a] pollutant to
navigable waters.” 33 U.S.C. § 1362(12)(A).
“It would, of course, make a mockery of [the Clean
Water Act’s regulatory scheme] if [the] authority to
control pollution was limited to the bed of the navigable stream itself. The tributaries which join to form the
river could then be used as open sewers as far as federal regulation was concerned.” United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1326 (6th Cir.
1974). No less can be said for groundwater flowing
directly into the ocean. See Williams Pipe Line Co. v.
Bayer Corp., 964 F. Supp. 1300, 1319-20 (S.D. Iowa
1997) (“Because the CWA’s goal is to protect the quality of surface waters, the NPDES permit system regulates any pollutants that enter such waters either
App. 61
directly or through groundwater.”); Washington Wilderness Coal. v. Hecla Min. Co., 870 F. Supp. 983, 990
(E.D. Wash. 1994) (“[S]ince the goal of the CWA is to
protect the quality of surface waters, any pollutant
which enters such waters, whether directly or through
groundwater, is subject to regulation by NPDES permit.”). See also Mary Christina Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution
Control Under the Clean Water Act, 12 HARV. ENVTL. L.
REV. 569, 596 (1988) (“To forbid pollution of a surface
stream, but to permit the stream to be polluted by a
nearby waste injection well is a manifest absurdity.”).
This view is consistent with the EPA’s pronouncements. “As a legal and factual matter, EPA has made a
determination that, in general, collected or channeled
pollutants conveyed to surface waters via ground water can constitute a discharge subject to the Clean
Water Act.” National Pollutant Discharge Elimination
System Permit Regulation and Effluent Limitations
Guidelines and Standards for Concentrated Animal
Feeding Operations, Proposed Rule, 66 FR 2960-01,
3017 (Jan. 12, 2001); see also Amendments to the Water
Quality Standards Regulations that Pertain to Standards on Indian Reservations, Final Rule, 56 FR 64876,
64892 (Dec. 12, 1991) (“[T]he affected ground waters
are not considered ‘waters of the United States’ but
discharges to them are regulated because such discharges are effectively discharges to the directly connected surface waters.”). Cf. Wis. Dep’t of Health &
Family Servs. v. Blumer, 534 U.S. 473, 497 (2002)
App. 62
(noting that an agency’s proposed rule “warrants respectful consideration”).
This does not mean that groundwater is always and
necessarily itself part of the navigable waters of the
United States. See 66 FR 2960-01 at 3017 (“EPA does
not argue that the CWA directly regulates ground water quality.”); Definition of “Waters of the United States”
Under the Clean Water Act, 79 FR 22188-01, 22218
(Apr. 21, 2014) (“The agencies have never interpreted
‘waters of the United States’ to include groundwater.”).
An unpermitted discharge into the groundwater, without more, does not constitute a violation of the Clean
Water Act. It is the migration of the pollutant into navigable-in-fact water that brings groundwater under
the Clean Water Act. In other words, if a party were
only releasing rocks or other fill material that did not
cause pollutants to migrate through groundwater, this
court would not be talking about this “conduit” theory
for liability under the Clean Water Act. This theory applies only when pollutants find their way to navigablein-fact waters. In that event, a permit is required. See
Hecla Mining, 870 F. Supp. at 990 (“[P]ollutants must
be traced from their source to surface waters, in order
to come within the purview of the CWA.”).
While there appears to be a split in authority over
whether groundwater pollution violates the Clean Water Act, this split may largely flow from a lack of clarity
by courts as to whether they are determining that
groundwater itself may or may not be regulated under
the Clean Water Act or are determining that groundwater may or may not be regulated when it serves as a
App. 63
conduit to water that is indeed regulated. Almost every
court that has allowed unpermitted discharges into
groundwater has done so under the theory that the
groundwater is not itself “water of the United States.”
That is, those courts were not determining whether
discharging pollutants into groundwater conduits required a permit. See, e.g., Vill. of Oconomowoc Lake v.
Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994);
Umatilla Waterquality Protective Ass’n, Inc. v. Smith
Frozen Foods, Inc., 962 F. Supp. 1312, 1318 (D. Or.
1997).
While it makes sense to regulate groundwater under the conduit theory, this court acknowledges that it
cannot point to controlling appellate law or statutory
text expressly allowing this theory in the present context.2 The Supreme Court in Rapanos dealt only with
wetlands that the EPA argued had ecological value in
and of themselves. The value of the wetlands in question was not necessarily that they were conduits into
navigable-in-fact water, but that they had independent
ecological worth because of such functions as “providing critical habitat for aquatic animal species.” 547
U.S. at 766. Even when the wetlands in question required protection because of their “critical functions
related to the integrity of other waters,” those
2
In deciding that Justice Kennedy’s concurrence in Rapanos
is the controlling rule of law in the Ninth Circuit, the majority in
Healdsburg was addressing only the question in that case, which,
as in Rapanos, involved whether particular wetlands were themselves navigable waters of the United States. Admittedly, neither
Healdsburg nor Justice Kennedy’s concurrence in Rapanos applied the conduit theory discussed here to groundwater.
App. 64
functions, “such as pollutant trapping, flood control,
and runoff storage” went beyond the simple transmission of pollutants. Id. at 779. For those reasons the wetlands at issue in Rapanos may have required
protection even if there was no possibility that the pollutants would migrate into navigable-in-fact water. Id.
at 744 (noting that the case involved “dredged or fill
material, which is typically deposited for the sole purpose of staying put, does not normally wash downstream, and thus does not normally constitute an
addition . . . to navigable waters when deposited in upstream isolated wetlands”).
By contrast, Plaintiffs here do not appear to be arguing that the County would necessarily require an
NPDES permit if it deposited material in the aquifer
that did not find its way to the ocean. Instead, the
harm alleged appears to be based on the migration
of the effluent to the ocean. That is, Plaintiffs do not
appear to be arguing that the groundwater requires
protection for its own independent ecological value. Instead, the concern is that the County should not be allowed to pollute the ocean through that groundwater.
The test articulated by the Ninth Circuit in
Healdsburg is not a good fit when groundwater is involved. If the Healdsburg test is the only way through
which a discharge into groundwater could be determined to come under the Clean Water Act, Healdsburg
poses enormous barriers to the regulation of groundwater – barriers that even the plurality in Rapanos
would likely not endorse. Under a strict application of
Healdsburg, even with definitive proof that 100% of all
App. 65
pollutants discharged from a point source into groundwater rapidly reach the ocean, a permit would not be
required unless there are also significant effects on
the physical, biological, and chemical integrity of the
ocean.
The Clean Water Act creates a strict liability
scheme that “categorically prohibits any discharge of a
pollutant from a point source without a permit,” irrespective of whether that discharge affects the receiving
water. Comm. To Save Mokelumne River v. E. Bay Mun.
Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993). Applying
Healdsburg to cases of groundwater pollution could undermine the Clean Water Act’s strict liability scheme,
as it would require plaintiffs to show both that pollutants are being discharged into navigable water and
that those pollutants are affecting the receiving water.
Congress intended to bar all unpermitted discharges,
without regard to their effects on protected waters;
Congress did not intend a scheme whereby certain citizen suit plaintiffs were subject to entirely different
proof requirements based solely on the manner in
which pollutants reach the ocean. Drawing such a distinction is not only illogical, it runs counter to the
structure and intent of the Act.
This court is not reading Healdsburg as requiring
such a distinction. Healdsburg does not sub silentio
create novel and significant barriers to groundwater
regulation. Instead, this court reads Healdsburg as
limited to situations in which, as in Rapanos, a plaintiff seeks to protect a particular wetland in and of itself. Healdsburg does not require that a plaintiff who
App. 66
shows that pollutants indirectly reach navigablein-fact water must make a further showing that those
pollutants have significantly affected the receiving
water.
Of course, a plaintiff must demonstrate more than
“a general hydrological connection between all waters.”
Hecla Min. Co., 870 F. Supp. at 990. Plaintiffs in the
present case must show that pollutants can be directly
traced from the injection wells to the ocean such that
the discharge at the LWRF is a de facto discharge into
the ocean. Further, Plaintiffs must show that the level
of pollutants emerging into navigable-in-fact water is
more than de minimis. If they make these showings, it
would make no sense to exempt a polluter from regulation simply because its pollution passes through a
conduit. If the point of emission is readily identified,
and the transmission path to the ocean is clearly ascertainable, the discharge is functionally one into navigable water.
That is not to say that groundwater can never be
regulated under the Healdsburg test. An aquifer with
a substantial nexus with navigable-in-fact water may
itself be protected under the Clean Water Act even if it
is not necessarily a conduit for pollutants. But when it
is established that groundwater is a conduit for pollutants, liability may attach to a discharge into that
groundwater even if the groundwater is not itself protected under the Act.
App. 67
3. It is undisputed that the County has
discharged pollutants into the ocean
through the conduit of the groundwater below the LWRF.
Applying the above analysis to the present case,
the court first addresses whether the groundwater under the LWRF constitutes a conduit to the ocean.
The central finding of the Tracer Dye Study – and
the centerpiece of Plaintiffs’ case – is that “64% of the
treated wastewater injected into wells [3 and 4] currently discharges from the submarine spring areas”
and into the ocean. Tracer Dye Study at ES-2, 3; Paytan Decl. ¶ 18. Because wells 3 and 4 “receive more
than 80 percent of the treated wastewater,” see Tracer
Dye Study ES-21, it appears that over 50% of the
wastewater discharged at the LWRF emerges into the
ocean. At the hearing on the present motions, the
County admitted that pollutants discharged at the
LWRF are reaching the ocean, but disputed the specific
quantities stated in the Trace Dye Study. What the
County failed to do was explain why it believed the
quantities cited in the Study were incorrect. Nor did
the County point to any evidence in the record disputing the Study’s precise findings.
The County’s expert, Paulsen, maintains that, “as
groundwater moves through the subsurface, various
chemical and biological reactions can occur that alter
the characteristics of the groundwater.” Paulsen Decl.
¶ 17. However, neither that statement nor the rest of
Paulsen’s declaration indicates that the chemical and
App. 68
biological reactions that occur as the effluent travels
through the groundwater to the ocean transform the
effluent into something other than a “pollutant.” In
other words, even if, for example, the levels of nitrogen
and phosphorus in the water being released at the
seeps are less than in the effluent injected at the wells,
that does not mean that the water at the seeps is not
or does not contain a “pollutant” within the meaning of
the Act. Indeed, at the hearing on the present motion,
the County explicitly disclaimed any such argument,
conceding that “pollutants” were released at the seeps.
The County appeared to be arguing at the hearing
that deep groundwater could not, as a matter of law, be
viewed as a “conduit” because of these diffusive effects.
That is, the County appeared to be arguing that any
channel or conveyance to the ocean may be considered
a conduit only if it “confine[s] or contain[s] the water.”
This argument elides the distinction between a point
source and a conduit. A point source is specifically
defined in the Clean Water Act as a “confined and discrete conveyance.” While any conduit that is a “confined and discrete conveyance” is a point source, that
does not mean that all conduits must be “confined
and discrete conveyances.” An injection well itself is a
point source, and the groundwater acting as a conduit
need not also be “confined and discrete.” Courts have
adopted “the ‘indirect discharge’ rationale and the
‘point source’ rationale in the alternative.” Rapanos,
547 U.S. at 744 (emphasis added). It would be anomalous for those alternative rationales to merge into a
single rationale.
App. 69
In any event, nothing in the record suggests that
the groundwater is not itself a “confined and discrete
conveyance.” See United States v. Earth Sciences, Inc.,
599 F.2d 368, 373 (10th Cir. 1979) (“The concept of a
point source was designed to further this scheme by
embracing the broadest possible definition of any identifiable conveyance from which pollutants might enter
the waters of the United States.”). The definition of
“point source” is limited to “confined and discrete conveyances” to minimize the difficulty of discerning the
source of pollutants. See Trustees for Alaska v. E.P.A.,
749 F.2d 549, 558 (9th Cir. 1984). The finding of the
Tracer Dye Study is that more than 50% of the effluent
originating at the LWRF is finding its way into the
ocean. Any conveyance that transmits such a high proportion of a pollutant from one place to another is consistent with being “confined and discrete,” irrespective
of its other geologic properties.
The County’s theory that groundwater cannot be
considered a conduit because it is not “confined and
discrete” would lead to the radical conclusion that all
conveyances through groundwater into the ocean are
permissible under the Act, even if 100% of the pollutants find their way into the ocean. Recognizing that
such a contention conflicts with the numerous cases
holding that the Act prohibits indirect pollution through
groundwater, the County carves out an exception to its
theory for transmission through “shallow subsurface”
water. Neither logic nor case law supports distinguishing between “shallow” and “deep” groundwater. The
key factor is not the depth of the groundwater, but the
App. 70
existence of a pollutant that eventually reaches the
ocean. It would make no sense to conclude that the release of pollutants into “shallow subsurface water” surrounded by impermeable rock requires a permit, but
the release of pollutants into “deep” groundwater does
not require a permit even if the latter involves far
greater transmission of pollutants into the ocean. And
neither case authorities nor statutory or regulatory
language provides any clue as to the precise measurement that might render groundwater deep.
Of course, releasing water deeper underground may
correlate to diffusion of a pollutant before it reaches
the ocean. That diffusion may sometimes be so great
that it is no longer reasonable to conclude that any pollutant is reaching the ocean. But depth is not the only
consideration in determining whether pollutants are
reaching navigable-in-fact water. Other factors, such
as the permeability of the rock, may be equally important. There is no support, therefore, for creating
a categorical exclusion for “deep” groundwater. The
core inquiry must be a case-by-case determination of
whether pollutants are reaching navigable-in-fact water. That determination is immensely simplified in the
present case by the presence of an independently produced report that traces pollutants from the LWRF to
the ocean.
At the hearing, the County also suggested that the
effluent was diffused as it spread through the groundwater, and that such diffusion precluded a finding that
the groundwater was a conduit to navigable water. But
liability under the Clean Water Act is triggered when
App. 71
pollutants reach navigable water, regardless of how
they get there. As with a “deep” conduit, a diffused conduit is no less covered under the Act if it actually conveys pollutants to navigable-in-fact water.
Under the County’s “diffusion” theory, for example,
a single pipe taking effluent to the ocean would be covered under the Clean Water Act, but 50 smaller pipes,
taking the same quantity of pollutant into the ocean,
might not. Nothing in the Act supports relying on the
manner in which the pollutants travel to determine liability.
Similarly, at the hearing, the County argued that
the injection wells were “too far” from the ocean to
qualify as conduits. Counsel for the County admitted,
however, that if the pollutant traveled in a half-milelong lava tube that confined the water, it would constitute a “direct” discharge into the ocean. To the County
therefore, distance appeared to be a proxy for the degree of diffusion. Because diffusion is itself only relevant to the extent it may prevent the water from
reaching the ocean, there is no support for a categorical
rule that allows any discharge of pollutants through
groundwater so long as the discharge originates a certain distance from the ocean.
This court recognizes that, in the absence of a
tracer dye study, depth, diffusion, and distance might
serve as proxies to help a court determine how much,
if any, pollutant is reaching navigable-in-fact water. But
such approximations are unnecessary when pollutants
App. 72
have been precisely traced from the point of discharge
to the ocean.
Liability under the Clean Water Act is triggered as
soon as pollutants are discharged into navigable water
from a point source. See Headwaters, 243 F.3d at 532.
The core undisputed fact of this case is that pollutants
discharged by the County at the LWRF injection wells
migrate to the ocean. Having no NPDES permit allowing this discharge, the County is violating the Clean
Water Act.
4. Even under Healdsburg’s two-part test,
Plaintiffs are entitled to summary judgment on the issue of whether the County
has violated the Clean Water Act.
As discussed in Section III(C)(2) of this order, the
Healdsburg test may present significant obstacles to
the regulation of groundwater by requiring plaintiffs
who are able to clearly show pollutants flowing into
protected water to also demonstrate that the flow of
those pollutants has “significant effects.” In many
cases, “significant effects” may not be discernable until
considerable pollution has already occurred. In other
cases, plaintiffs may not have the resources to identify
such effects. The present case does not present those
difficulties. The record before this court is exceptionally extensive. The discharges from the LWRF have
been the subject of investigation and scrutiny by scientists and federal and state authorities for over a
decade. The consensus of the numerous studies and
App. 73
reports placed before the court appears to be that effluent from the LWRF is reaching the ocean and is significantly affecting the water near the submarine
seeps where it is being discharged. This record allows
this court to conclude, even under the Healdsburg test,
that the County is violating the Clean Water Act.
In referring to the Healdsburg test, this court
notes that the parties appear to agree that, under
Healdsburg, Plaintiffs must show that there is both a
“hydrologic connection” between the aquifer under
the LWRF and the ocean, and that the aquifer “either
alone or in combination with similarly situated [wet]lands in the region, significantly affect[s] the chemical,
physical, and biological integrity of [the ocean].” Healdsburg, 496 F.3d at 1000 (internal quotation marks omitted).
Healdsburg itself does not actually speak of a
“two-part” test. Instead it simply states that “wetlands
are regulable under the CWA only if there is a significant nexus between the wetlands at issue and the navigable waterway.” 496 F.3d at 1000. Healdsburg notes
that “mere hydrologic connection should not suffice in
all cases [because] the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally
understood.” Id. (internal quotation marks omitted).
Instead of expressly articulating a “two-part” test, this
statement recognizes that a hydrologic connection does
not alone meet the significant nexus test. In other
words, if there are two bodies of water with no hydrologic connection that affect one another’s “chemical,
App. 74
physical or biological integrity,” they may still be regulable under the Act. Because the aquifer under the
LWRF and the ocean have a clear hydrological connection, the court is not faced with such a circumstance.
However, given the parties’ agreement that Healdsburg creates a two-part test, the court applies their
framework for the purposes of deciding this part of the
motion, although the court is not thereby ruling that
the parties’ agreement is necessarily the correct application of Healdsburg.
As a threshold matter, the County argues that
groundwater categorically cannot be considered a “water of the United States,” irrespective of any nexus it
may have with navigable-in-fact water. The County’s
primary basis for this assertion is a recently proposed
rule by the EPA and the Army Corps of Engineers stating, “Groundwater, including groundwater drained
through subsurface drainage systems . . . [is] expressly
not ‘water[ ] of the United States’ by rule.” 79 FR
22188-01 at 22218. If this rule were to become final, it
would be entitled to deference by this court under
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984), and would likely mean that the
groundwater under the LWRF could not itself be considered “water of the United States.” It is important to
note that, even if this rule does become final, it need
not affect the indirect discharge theory discussed in
Section III(C)(2) of this order. In keeping with the
agencies’ pronouncements, the indirect discharge theory does not treat groundwater as itself “water of the
United States,” but as a conduit to such water. If
App. 75
adopted, the proposed rule would, however, affect
whether Plaintiffs may prevail on the alternative theory that the discharge at the LWRF meets the Healdsburg test.
In the Ninth Circuit, “proposed regulations carry
no more weight than a position advanced on brief.”
Tedori v. United States, 211 F.3d 488, 492 (9th Cir.
2000) (citation omitted). The proposed rule purports to
interpret the statutory language of the Clean Water
Act. When agencies have asserted new interpretations
of statutory language in legal briefs, the Ninth Circuit
has consistently declined to give controlling weight to
the agency’s pronouncements. See, e.g., Christopher v.
SmithKline Beecham Corp., 635 F.3d 383, 395 (9th Cir.
2011); N. Cal. River Watch v. Wilcox, 633 F.3d 766, 780
(9th Cir. 2011). Because proposed rules are not entitled
to more respect than positions advocated in briefs, the
proposed groundwater rule is similarly not owed deference here. To hold otherwise would give similar force
in the courts to an agency’s proposed and final rules.
Such a result would, to some degree, allow agencies to
circumvent the very notice and comment process that
the Supreme Court has found to be highly relevant in
determining the deference owed to an agency interpretation. United States v. Mead Corp., 533 U.S. 218, 230
(2001).
Therefore, while the court gives “respectful consideration,” Blumer, 534 U.S. at 497, to the agencies’ proposed categorical exclusion of groundwater from the
definition of the “waters of the United States,” the
agencies’ view does not control. Instead, the court must
App. 76
make a determination based on the unique facts present here regarding whether the aquifer under the
LWRF is regulable under the Clean Water Act. This
court now applies the parties’ two-part test to that subject.
The County argues that, to meet the first part of
its reading of the Healdsburg test, Plaintiffs must
demonstrate a hydrologic connection between the aquifer and the ocean that is “direct and immediate.” The
County cites almost no authority to support its novel
“direct and immediate” requirement and does not articulate what constitutes a sufficiently “direct” or “immediate” connection. The cases the County relies on
in describing its “direct and immediate” requirement
actually support the conclusion that the hydrologic
connection between the aquifer and ocean here is sufficiently “direct and immediate.”
For example, in Greater Yellowstone Coalition v.
Larson, 641 F. Supp. 2d 1120, 1139 (D. Idaho 2009), the
court held that it was not arbitrary and capricious
for the EPA to decide that there was no hydrologic connection when pollutants traveled “between one to four
miles until reaching the surface water,” and “would
take between 60 and 420 years for peak concentrations
. . . to arrive at surface water.” Here, the effluent travels for less than half a mile and reaches the ocean
within three months of discharge. The Larson court
considered the degree of hydrologic connection to involve a close question despite the much longer distance
and vastly slower speed the pollutants traveled in that
case. Larson therefore supports the conclusion that the
App. 77
discharge at the LWRF has a “direct and immediate”
hydrologic connection with the ocean.
Similarly, the court in Association Concerned Over
Resources and Nature, Inc. v. Tennessee Aluminum Processors, Inc., 2011 WL 1357690 at *18 (M.D. Tenn. Apr.
11, 2011), required the plaintiffs to show only “a link
between contaminated ground waters and navigable
waters.” Nothing in that case suggests that the link between the aquifer under the LWRF and the ocean is
insufficiently direct.
The County further argues that the “direct and
immediate” requirement is consistent with Healdsburg because the court in that case found “a hydrological connection between a pond and nearby river where
‘a change in the water level in one immediately affect[ed] the water level in the other.’ ” Opp. at 7 (emphasis in original) (quoting Healdsburg, 496 F.3d at
1000). But that language in Healdsburg relates to the
“physical connection” between the Basalt Pond and the
Russian River under the second prong of the test, not
to the degree of hydrologic connection under the first
prong. In any event, Healdsburg does not purport to set
the outer bounds of the Clean Water Act’s applicability.
The County fails to establish that any hydrologic connection less than the one at issue in Healdsburg is
insufficient to trigger liability under the Clean Water
Act.
Unlike the courts in the cases discussed above,
this court has before it the Tracer Dye Study, which indisputably demonstrates the relatively rapid flow of
App. 78
significant quantities of pollutant from the LWRF to
the ocean. In these circumstances, it would be anomalous for the court to read Healdsburg, or any other
case, as requiring a finding of no hydrologic connection.
Plaintiffs clearly meet the first prong of the Healdsburg test.
This court turns to the second part of the test defined by the parties – whether the water in the aquifer
“significantly affects the [ocean’s] physical, biological
and chemical integrity.” See Healdsburg, 496 F.3d at
1001. Plaintiffs contend that the ocean water close to
the submarine seeps has been affected in five separate
ways.
First, Plaintiffs contend that water near the seeps
has “exceptionally elevated” levels of nitrogen and
phosphorus. See Smith Decl. 11, 17-19. In particular,
the area near the seeps apparently has the highest levels of sewage-derived nitrogen “ever reported in the
scientific literature.” Id. ¶ 8. Elevated levels of such
nutrients can accelerate the growth of fleshy seaweed
and algae, which can compete with, outgrow, and kill
coral. Id. ¶ 20. In keeping with this conclusion, the
coral reefs near the submarine seeps have been subject
to algal blooms that have led to a decline in coral cover
from 55% to 33% between 1994 and 2006. Id. ¶ 25.
Second, Plaintiffs show that the water near the
submarine seeps is substantially more acidic than the
rest of the ocean’s nearshore water. Id. ¶ 29; Tracer
Dye Study at 2-12, 2-13. This ocean acidification reduces the amount of carbonate ions available for
App. 79
species such as corals, mussels, and limpets, and promotes the growth of seaweed that competes with coral.
Smith Decl. ¶ 27.
Third, Plaintiffs demonstrate that the emerging
water has lower salinity than the ocean water, see
Tracer Dye Study at 2-12, 2-13, and this low salinity
can be harmful to coral that has evolved to live in seawater rather than freshwater. Smith Decl. ¶ 33.
Fourth, Plaintiffs show that oxygen concentrations from the water emerging from the seeps is substantially lower than in the marine water elsewhere in
West Maui. Smith Decl. ¶ 35; Paytan Decl. ¶ 34. The
lack of oxygen can suffocate coral and promote the
growth of seaweed. Smith Decl. ¶¶ 34-36; Paytan Decl.
¶¶ 34-35.
Fifth, Plaintiffs show that the water temperature
is substantially elevated near the seeps. See Tracer
Dye Study at 2-12, 2-13. The Tracer Dye Study found
that these higher temperatures extended over more
than 167 acres around the seeps. See Paytan Decl.
¶¶ 26-29. These higher temperatures can lead to
bleaching and death of the coral in the affected area.
See Smith Decl. ¶ 37.
Neither the County nor their experts dispute that
the water directly emerging from the seeps bears these
properties. Nor do they dispute that the theoretical
effect of such alterations to ocean water would be to
damage coral in the ways described above. Rather, the
County argues that “measurements at the seeps fail to
account for mixing of the seep discharge with ocean
App. 80
water.” Memo. in Opp. to Motion for Summary Judgment at 16; see also Paulsen Dec., ¶¶ 23, 38; Dollar
Dec., ¶ 12-13. The County and their experts note that,
as the water emerging from the seeps moves through
the water column, the effects of the effluent dissipate.
Id. As the County puts it, “[a]ny effects of the seep discharge are . . . attenuated, particularly given the small
area of the seeps compared to the entire reef.” Memo in
Opp. at 17-18. The County’s experts contend that,
given this dispersion of effluent, the reef in the nearshore area is not being harmed by the discharge at the
LWRF. See, e.g., Dollar Dec., ¶ 44. (“[A]ll reef areas appeared essentially pristine, i.e., no observed bleached,
diseased, or otherwise stressed corals.”).
Even accepting these statements by the County’s
experts, the court finds that there is no genuine dispute that the discharge at the LWRF significantly affects the physical, chemical, and biological integrity of
the ocean water. There is no dispute that water is flowing from the aquifer into the ocean, and that the properties of the aquifer water can and are altering the
properties of water near the seeps. Of course, given the
vastness of the ocean, these effects will dissipate as
the aquifer water is dispersed into ocean water. To
hold that an “effect” is “insignificant” merely because
of such dispersion would license unfettered discharge
into any body of water voluminous enough to rapidly
diffuse the effects of the effluent. Ocean water near the
seeps is, indisputably, being significantly affected. The
County provides no basis for the contention that these
App. 81
effects must be felt throughout all the nearshore waters to meet the “significant effects” test.
Notably absent from the County’s analysis is any
framework for determining when such dispersion renders an effect “insignificant.” The effects of any amount
of pollutant will eventually disperse as the pollutant
travels through the ocean, but the County does not articulate how great a distance from the discharge an “effect” must be felt for it to be deemed “significant.”
The crux of the “significant effects” test is determining whether the aquifer’s “effects on water quality
are speculative or insubstantial, [such that] they fall
outside the zone fairly encompassed by the statutory
term ‘navigable waters.’ ” Healdsburg, 496 F.3d at 1000
(quoting Rapanos, 547 U.S. at 717 (Kennedy, J., concurring in judgment)). Here, the effect is indisputably neither speculative nor insubstantial. The LWRF releases
three to five million gallons of effluent a day; an independent EPA study has determined that at least 50%
of this effluent makes its way relatively rapidly into
the ocean; this effluent has properties that can radically alter the properties of the water it is introduced
into; and such radical effects have been observed and
measured at the point of discharge into the ocean. If
such a relationship is considered “speculative” and “insubstantial,” it is hard to imagine any groundwater
connection meeting what the parties construe as the
Healdsburg test.
Finally, the County’s assertion that coral is not being damaged and is “pristine,” even if true, is
App. 82
irrelevant for determining a significant nexus. An “effect” on the ocean is not coextensive with “harm” to the
ocean. Comm. to Save Mokelumne River, 13 F.3d at 309
(noting that the CWA “does not impose liability only
where a point source discharge creates a net increase
in the level of pollution” but instead creates a strict liability scheme that “categorically prohibits any discharge of a pollutant from a point source without a
permit”). The undisputed physical, chemical and biological changes observed in the water near the seeps
are sufficient to establish that the aquifer and the
ocean have the required nexus. To establish the
County’s liability, Plaintiffs need not show that coral
or other marine life has been damaged or harmed.
The only reasonable inference that the undisputed
evidence permits is that the discharge into the aquifer
significantly affects the physical, chemical and biological integrity of the receiving waters. Both prongs of
the Healdsburg test defined by the parties are met
here. Therefore, the County’s discharge of pollutants
into the aquifer beneath the LWRF without an NPDES
permit is a violation of the Clean Water Act.
In concluding that Plaintiffs in this case prevail
even under the Healdsburg two-part test they have defined, this court is not suggesting that Healdsburg
must be applied to all cases involving groundwater pollution. This case does not require this court to address,
for example, whether Healdsburg bars the introduction of pollutants into groundwater that do not migrate
to navigable-in-fact water. This court holds only that,
given the undisputed evidence in the record showing
App. 83
that pollutants rapidly flow from the aquifer into the
ocean and cause significant change to the ocean water
near the submarine seeps, the County is liable under
both the Healdsburg framework articulated by the parties and the indirect discharge (or “conduit”) framework. The Healdsburg test, which developed in the
context of wetlands that plaintiffs sought to protect for
the wetlands’ own ecological value, may not always
provide a good fit for cases involving groundwater. If
Healdsburg, rather than the “conduit” theory, is to govern groundwater cases, it may require further clarification and elaboration in cases with fact patterns
different from the one before this court. In the present
case, however, the Healdsburg test relied on by the parties leads ineluctably to the same conclusion as the
“conduit” theory: the County’s release of pollutants
at the LWRF without an NPDES permit violates the
Clean Water Act.
IV. CONCLUSION.
The court denies Defendant’s motion for judgment
on the pleadings or, in the alternative, a stay. The court
grants Plaintiffs’ motion for partial summary judgment as to the County’s liability under the Clean Water Act. The court makes no determination at this stage
regarding any civil penalties.
The court grants the County’s two requests for judicial notice and denies the county’s motion to strike
expert declarations.
App. 84
Because Plaintiffs are prevailing on the substantive motions before this court, the court sees no need
to address the merits of their Motion to Strike Defendant’s Second May 23, 2014 Letter. That motion is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii,
May 30, 2014.
[SEAL]
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States
District Judge
Hawaii Wildlife Fund, et al. v. County of Maui;
Civil No. 12-00198 SOM/BKM; ORDER DENYING
DEFENDANT’S MOTION FOR STAY AND GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
App. 85
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAI‘I WILDLIFE FUND, ) CIVIL NO.
a Hawaii non-profit corpora- ) 12-00198 SOM/BMK
tion; SIERRA CLUB-MAUI ) ORDER GRANTING
GROUP, a non-profit
) PLAINTIFFS’
corporation; SURFRIDER
) MOTION FOR
FOUNDATION, a non-profit ) PARTIAL SUMMARY
corporation; and WEST
) JUDGMENT AND
MAUI PRESERVATION
) DENYING DEFENDASSOCIATION, a Hawaii
) ANT’S MOTION FOR
non-profit corporation,
) PARTIAL SUMMARY
) JUDGMENT
Plaintiffs,
)
vs.
)
)
COUNTY OF MAUI,
)
Defendant.
)
ORDER GRANTING PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT AND
DENYING DEFENDANT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
I.
INTRODUCTION.
Before the court are cross-motions for partial summary judgment filed by Plaintiffs Hawai‘i Wildlife
Fund, Sierra Club, Surfrider Foundation, and West
Maui Preservation Association (collectively, “Plaintiffs”) and by Defendant County of Maui (the
“County”). The cross-motions concern whether the
County has violated the Clean Water Act by
App. 86
discharging effluent without a National Pollutant Discharge Elimination System (“NPDES”) permit at two
of four injection wells at the Lahaina Wastewater Reclamation Facility (“LWRF”). The court grants Plaintiffs’ motion and denies the County’s motion.
II.
FACTUAL BACKGROUND.
The County of Maui operates the LWRF, a
wastewater treatment facility approximately three
miles north of the town of Lahaina on the island of
Maui. See ECF No. 41, PageID # 451; ECF No. 139-10,
PageID # 5029. The facility receives approximately
four million gallons per day of sewage from a collection
system serving approximately 40,000 people. See ECF
No. 139-10, PageID # 5029. The facility filters and disinfects the sewage, then releases the treated effluent
(sometimes called “reclaimed water” or “wastewater”)
into four on-site injection wells. See id. The effluent
reaches a groundwater aquifer, the precise depth of
which “fluctuates somewhat, depending on water inputs and other conditions.” The aquifer contains “a sufficient quantity of ground water to supply a public
water system.” See ECF No. 129-13, PageID # 4230.
This court granted summary judgment to Plaintiffs as to the County’s liability under the Clean Water
Act for discharges of effluent into two of the injection
wells, wells 3 and 4, that cause pollutants to make
their way to the Pacific Ocean. See ECF No. 113. Both
parties now seek summary judgment on the issue of
whether the County has violated the Clean Water Act
App. 87
by discharging effluent into the two remaining wells,
wells 1 and 2.
The Environmental Protection Agency (“EPA”),
the State of Hawaii Department of Health (“DOH”),
the U.S. Army Engineer Research and Development
Center, and researchers at the University of Hawaii
conducted a study “to provide critical data about the
possible existence of a hydraulic connection between
the injection of treated wastewater effluent at the
[LWRF] . . . and nearby coastal waters, confirm locations of emerging injected effluent discharge in these
coastal waters, and determine a travel time from the
LWRF injection wells to the coastal waters.” ECF No.
139-10, PageID # 5026. The study involved placing
tracer dye into injection wells 2, 3, and 4, and monitoring the submarine springs of Kahekili Beach on Maui’s
west shore. See id.
Although dye introduced into wells 3 and 4 was
detected at the seeps (i.e., the areas where the groundwater reaches the surface) eighty-four days after being
placed in those wells, dye introduced to well 2 was not
detected. Id., PageID #s 5028, 5042. The study concluded that the presence of dye from wells 3 and 4 at
the seeps “conclusively demonstrate[s] that a hydrogeologic connection exists between LWRF Injection Wells
3 and 4 and the nearby coastal waters of West Maui.”
Id., PageID # 5028. No tracer study has been conducted
on well 1. See ECF No. 127, PageID # 3733; ECF No.
139, PageID # 4889.
App. 88
Irrespective of the tracer study’s results for well 2
and the lack of such a study for well 1, the parties do
not dispute that effluent pumped into wells 1 and 2
eventually finds its way to the Pacific Ocean. See ECF
No. 129, PageID # 3933; ECF No. 136, PageID # 4515.
Though the County contends that the point of entry
into the ocean of flow from wells 1 and 2 cannot be
identified, the County acknowledges that there is a hydrogeologic connection between wells 1 and 2 and the
ocean. See ECF No. 136, PageID # 4515. Indeed, this
court repeatedly confirmed at the hearing on the present cross-motions that the County was expressly conceding that pollutants introduced by the County into
wells 1 and 2 were making their way to the ocean.
Plaintiffs contend that the County’s continued discharge of effluent into wells 1 and 2 without an
NPDES permit violates the Clean Water Act. See ECF
No. 128-1, PageID # 3927. The County contends that it
is not subject to liability with respect to wells 1 and 2.
See ECF No. 125, PageID # 3708.
III. STATUTORY FRAMEWORK.
The Clean Water Act, passed in 1972, was intended by Congress “to restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C. § 1251(a). To further that objective,
the Clean Water Act prohibits the “discharge of any
pollutant” unless certain provisions of the Clean Water
Act are complied with. See 33 U.S.C. § 1311(a). The
Clean Water Act defines “discharge of a pollutant” as
App. 89
“any addition of any pollutant to navigable waters
from any point source.” 33 U.S.C. § 1362(12). In relevant part, the Clean Water Act defines “pollutant” as
“dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.” 33 U.S.C. § 1362(6). The
Clean Water Act defines “navigable waters” as “the waters of the United States, including the territorial
seas.” 33 U.S.C. § 1362(7). The Clean Water Act defines
“point source” as:
any discernible, confined and discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other
floating craft, from which pollutants are or
may be discharged. This term does not include
agricultural stormwater discharges and return flows from irrigated agriculture.
33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342.
Plaintiffs sued the County, seeking to compel it to
apply for and comply with the terms of an NPDES permit, and to pay civil penalties for discharges Plaintiffs
contend were unlawful.
App. 90
IV. STANDARD.
Summary judgment shall be granted when “the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.
2000). The movant must support his or her position
that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for the purposes of
the motion only), admissions, interrogatory answers, or
other materials” or “showing that the materials cited
do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). Summary judgment must
be granted against a party that fails to demonstrate
facts to establish what will be an essential element at
trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial – usually, but not
always, the defendant – has both the initial burden of
production and the ultimate burden of persuasion on a
motion for summary judgment. Nissan Fire & Marine
Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.
2000).
App. 91
The burden initially falls on the moving party to
identify for the court those “portions of the materials
on file that it believes demonstrate the absence of any
genuine issue of material fact.” T.W. Elec. Serv., Inc. v.
Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
1987) (citing Celotex Corp., 477 U.S. at 323). “When the
moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial. T.W.
Elec. Serv., Inc., 809 F.2d at 630. At least some “ ‘significant probative evidence tending to support the complaint’ ” must be produced. Id. (quoting First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290
(1968)); see also Addisu, 198 F.3d at 1134 (“A scintilla
of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes
the non-moving party’s claim implausible, that party
must come forward with more persuasive evidence
than would otherwise be necessary to show that there
is a genuine issue for trial.” Cal. Arch’l Bldg. Prods.,
Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475
U.S. at 587); accord Addisu, 198 F.3d at 1134 (“There
must be enough doubt for a ‘reasonable trier of fact’ to
find for plaintiffs in order to defeat the summary judgment motion.”).
App. 92
All evidence and inferences must be construed in
the light most favorable to the nonmoving party. T.W.
Elec. Serv., Inc., 809 F.2d at 631. Inferences may be
drawn from underlying facts not in dispute, as well as
from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct
evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of
the evidence set forth by the nonmoving party with respect to that fact.” Id.
V.
ANALYSIS.
A. Requests for Judicial Notice.
The County makes multiple requests for judicial
notice. See ECF Nos. 127-13, 137-13, 141-8. There being no opposition from Plaintiffs, the court grants
those requests and takes judicial notice of the documents as public records and government documents.
B. Plaintiffs are Entitled to Summary
Judgment on the County’s Liability Under the Clean Water Act for Discharges
into Wells 1 and 2 at the LWRF.
To establish the County’s liability under the Clean
Water Act, Plaintiffs must show that the County has
discharged a pollutant into navigable waters from a
point source without an NPDES permit. See 33 U.S.C.
§§ 1311(a), 1342, 1362(12); see also Headwaters, Inc. v.
App. 93
Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir.
2001).
There is no dispute that the County is discharging
a pollutant into navigable waters without an NPDES
permit. See ECF No. 136, PageID # 4515 (“The County
does not dispute that effluent injected into Wells 1 and
2 enters groundwater and eventually flows to and enters the ocean. In other words, Plaintiffs meet three of
the four elements of the ‘discharge of any pollutant’
definition, i.e., ‘addition of any pollutant to navigable
waters.’ ”).1 The only area of dispute between the parties is whether the discharge is from a point source. See
id.
The County contends that an indirect discharge of
pollutant to navigable waters requires “a series of sequential point sources conveying [the] pollutant[ ] from
the initial point of discharge to navigable waters.” ECF
No. 125, PageID # 3710. In other words, according to
the County, when a single point source does not discharge pollutant directly into navigable waters, liability under the Clean Water Act does not arise unless the
pollutant passes through point sources along the entire pathway it travels. Because Plaintiffs do not offer
evidence of such multiple point sources, the County
1
As this court has noted earlier in this order, the County’s
statement that, with respect to wells 1 and 2, there is no tracer
study data of the type available with respect to wells 3 and 4 concerns a meaningless distinction for purposes of the present motions given the County’s concession that pollutants from wells 1
and 2 reach the ocean. The County nowhere contends that the
amount of effluent is de minimis.
App. 94
says that the effluent injected into wells 1 and 2 cannot
be said to be discharged into navigable waters from a
point source. According to the County, the groundwater
though [sic] which the effluent travels cannot be a
point source under 33 U.S.C. § 1362(14) because
groundwater is not a “discernible, confined and discrete conveyance.” Id., PageID # 3715.
The County acknowledges that, in making its present argument, it is seeking to persuade this court to
revisit its earlier ruling granting Plaintiffs summary
judgment as to wells 3 and 4. In its earlier order, this
court addressed the County’s argument that groundwater could not be considered a conduit because there
is no “confinement or containment of the water,” as required of a point source under the Clean Water Act.
ECF No. 97, PageID # 3504 (internal quotation marks
omitted). This court stated:
This argument elides the distinction between
a point source and a conduit. A point source is
specifically defined in the Clean Water Act as
a “confined and discrete conveyance.” While
any conduit that is a “confined and discrete
conveyance” is a point source, that does not
mean that all conduits must be “confined and
discrete conveyances.” An injection well itself
is a point source, and the groundwater acting
as a conduit need not also be “confined and
discrete.”
ECF No. 113, PageID # 3654
Plaintiffs note that the County failed to file a
timely motion for reconsideration of this court’s earlier
App. 95
order, and argue that the County cannot now challenge
this court’s prior decision given the law of the case doctrine. Under that doctrine, “a court is generally precluded from reconsidering an issue that has already
been decided by the same court, or a higher court in
the identical case.” United States v. Cuddy, 147 F.3d
1111, 1114 (9th Cir. 1998) (internal quotation marks
omitted). The County urges this court to depart from
the law of the case because the prior ruling was clearly
erroneous and results in a manifest injustice. See id.
(“[A] court may have discretion to depart from the law
of the case if: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred;
3) the evidence on remand is substantially different; 4)
other changed circumstances exist; or 5) a manifest injustice would otherwise result.”).
This court remains unpersuaded by the County’s
reading of what the Clean Water Act requires. The authorities the County refers to are neither binding authority for the County’s theory nor analyses
establishing error in this court’s prior ruling. In this
court’s “Inclinations,” routinely issued by this judge in
advance of hearings, the County was asked to come to
the hearing on the present motions prepared to discuss
authority specifically requiring pollutants not directly
discharged into navigable waters to travel though “a
series of sequential point sources conveying pollutants
from the initial point of discharge to navigable waters.”
ECF No. 156 (internal quotation marks omitted). At
the hearing, the County discussed: Rapanos v. United
States, 547 U.S. 715 (2006); South Florida Water
App. 96
Management District v. Miccosukee Tribe of Indians,
541 U.S. 95 (2004); United States v. Ortiz, 427 F.3d 1278
(10th Cir. 2005); Sierra Club v. El Paso Gold Mines,
Inc., 421 F.3d 1133 (10th Cir. 2005); Concerned Area
Residents for Environment v. Southview Farm, 34 F.3d
114 (2d Cir. 1994); Committee To Save Mokelumne
River v. East Bay Municipal Utility District, 13 F.3d
305 (9th Cir. 1993); Dague v. City of Burlington, 935
F.2d 1343 (2d Cir. 1991); Alaska Community Action on
Toxics v. Aurora Energy Services, LLC, 940 F. Supp. 2d
1005 (D. Alaska 2013); San Francisco Baykeeper v. West
Bay Sanitary District, 791 F. Supp. 2d 719 (N.D. Cal.
2011); and United States v. Velsicol Chemical Corp.,
438 F. Supp. 945 (W.D. Tenn. 1976).
These cases, many of which were cited in the
County’s papers, do not directly address the County’s
point source theory. Some of the cases involve sequential point sources, and some consider whether groundwater itself constitutes a point source, but none
actually holds that a pollutant’s indirect journey to
navigable waters must be through a series of point
sources.
At the hearing on this matter, the County articulated its position by saying that it could only be liable
under the Clean Water Act if a pollutant from well 1
and/or well 2 ultimately reached navigable waters
through a point source. Even assuming this particular
articulation could be said to have been included in
what the County advanced in its papers, the County
fails to cite any binding authority for that proposition.
Additionally, exempting discharges of pollutants from
App. 97
a point source merely because the polluter is lucky (or
clever) enough to have a nonpoint source at the tail end
of a pathway to navigable waters would undermine the
very purpose of the Clean Water Act.
The County’s present expansion of arguments
made during earlier proceedings does not establish a
basis for this court to read the point source requirement for wells 1 and 2 differently from the requirement for wells 3 and 4. The statutory language at issue
includes no suggestion that a pollutant taking an indirect path from a well to the ocean must pass through
“a series of sequential point sources.” See ECF No. 125,
PageID # 3710. The Clean Water Act prohibits “any addition of any pollutant to navigable waters from any
point source.” 33 U.S.C. § 1362(12). Neither this language nor the statutory definition of “point source”
supports the County’s theory.
This court rests on the analysis set forth in its order addressing wells 3 and 4. Adopting the County’s
interpretation of the point source requirement would
erode the Clean Water Act’s prohibition on discharges
of pollutants without an NPDES permit. It would be
nonsensical to regulate a polluter that discharges effluent to the ocean through a series of sequential point
sources, while exempting a polluter that discharges
the same effluent through a combination of an initial
point source and subsequent nonpoint sources. In both
situations, pollutants are discharged into navigable
waters from point sources. There is no basis for distinguishing between the two.
App. 98
This court’s rejection of the County’s interpretation of the point source requirement by no means “nullifie[s] the meaning of point source” or “read[s] the
point source requirement out of the statute,” as the
County contends. ECF No. 125, PageID # 3713, 3714
(internal quotation marks omitted). The injection wells
are indisputably point sources. See ECF No. 125,
PageID # 3715 (“The LWRF injection wells are the only
confined and discrete conveyances here. 33 U.S.C.
§ 1362(14) (point source includes well).”). The County’s
discharge of effluent into the injection wells satisfies
the point source requirement, the only disputed issue
before this court on the present motions.
The parties’ discussions concerning the location
and expanse of the pollutant’s entry into the ocean and
the harm, or lack thereof, resulting from discharge of
the pollutants, are irrelevant to the County’s liability.
See, e.g., Comm. To Save Mokelumne River v. E. Bay
Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993) (“[T]he
Act categorically prohibits any discharge of a pollutant
from a point source without a permit. Thus, the factual
issue raised by defendants concerning the historical
level of pollution compared to the current level of pollution is not material to the resolution of the Committee’s claim, and therefore does not preclude summary
judgment on the issue of liability.” (citations omitted)).
This court sees no need to address those arguments on
the present motions, which go solely to the issue of
whether the County is liable.
Because Plaintiffs meet the point source requirement, and because there is no dispute regarding any of
App. 99
the other elements necessary for liability under the
Clean Water Act, this court concludes that there is no
genuine issue of material fact precluding a finding that
the County is liable for discharges from wells 1 and 2
without an NPDES permit.
C. Requests to Strike Evidence.
Both parties request that this court strike opposing experts’ statements. See ECF No. 138, PageID
# 4851; ECF No. 140, PageID # 5322; ECF No. 145.
Whether this court considered the challenged evidence
or not, the court’s ruling would be unchanged. This
court in actuality does not deem the challenged material necessary to deciding the summary judgment motions before it. The requests to strike are denied on the
ground that parsing the assertions in those requests
will have no impact on the summary judgment motions.
VI. CONCLUSION.
Plaintiffs’ motion for partial summary judgment is
granted and the County’s motion for partial summary
judgment is denied.
The requests for judicial notice are granted, and
the requests to strike evidence are denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 23, 2015.
App. 100
[SEAL]
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Hawai‘i Wildlife Fund, et al. v. County of Maui; Civil
No. 12-00198 SOM/BMK; ORDER GRANTING
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT AND DENYING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
App. 101
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAI‘I WILDLIFE FUND, ) CIVIL NO.
a Hawaii non-profit
) 12-00198 SOM/BMK
corporation; SIERRA
) ORDER DENYING
CLUB-MAUI GROUP,
) DEFENDANT’S
a non-profit corporation;
) MOTION FOR SUMSURFRIDER FOUNDATION, ) MARY JUDGMENT
a non-profit corporation;
) BASED ON LACK
and WEST MAUI
) OF FAIR NOTICE
PRESERVATION
) AND GRANTING
ASSOCIATION, a Hawaii
) PLAINTIFFS’ MOnon-profit corporation,
) TION FOR PARTIAL
) SUMMARY JUDGPlaintiffs,
) MENT REGARDING
vs.
) CIVIL PENALTIES
)
COUNTY OF MAUI,
)
Defendant.
)
ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT BASED ON LACK
OF FAIR NOTICE AND GRANTING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
REGARDING CIVIL PENALTIES
I.
INTRODUCTION.
The court has before it a motion for summary judgment filed by Defendant County of Maui asserting that
the County lacked fair notice that it was subject to penalties given actions it took without a National Pollutant Discharge Elimination System (“NPDES”) permit.
App. 102
Also before the court is a motion for partial summary
judgment filed by Plaintiffs Hawai‘i Wildlife Fund,
Sierra Club, Surfrider Foundation, and West Maui
Preservation Association (collectively, “Plaintiffs”) that
seeks to establish the maximum number of statutory
violations. The court denies the County’s motion and
grants Plaintiffs’ motion.
II.
FACTUAL BACKGROUND.
The County of Maui operates the Lahaina
Wastewater Reclamation Facility (“LWRF”), a
wastewater treatment facility approximately three
miles north of the town of Lahaina on the island of
Maui. See ECF No. 41, PageID # 451; ECF No. 139-10,
PageID # 5029. The facility receives approximately
four million gallons of sewage per day from a collection
system serving approximately 40,000 people. See ECF
No. 139-10, PageID # 5029. The facility filters and disinfects the sewage, then releases the treated effluent
into four on-site injection wells. See id. The effluent
reaches a groundwater aquifer and eventually the
ocean. See ECF No. 129-13, PageID # 4230.
In a summary judgment order issued on May 30,
2014, this court ruled that the County was violating
the Clean Water Act by discharging into navigable waters effluent containing pollutants from two of the injection wells, wells 3 and 4, without an NPDES permit.
See ECF No. 113. In a separate summary judgment order issued on January 23, 2015, this court ruled that
the County was similarly violating the Clean Water
App. 103
Act with respect to discharges from the remaining two
injection wells, wells 1 and 2. See ECF No. 162.
Having been found liable under the Clean Water
Act, the County seeks summary judgment in its favor
with respect to potential penalties, arguing that this
court cannot assess statutory penalties against the
County because the County lacked fair notice that an
NPDES permit was required. See ECF No. 172.1
Plaintiffs, for their part, seek partial summary
judgment regarding the method of calculating the civil
penalties that may be assessed against the County. See
ECF No. 176. Plaintiffs ask this court to determine the
maximum possible number of the County’s violations
of the Clean Water Act by counting the number of days
within the limitations period that effluent from each
injection well was discharged and then totaling the results for all four wells. See ECF No. 176-1, PageID
# 6204.
1
In the County’s motion for summary judgment, it stated
that it “reserves its right to provide additional undisputed facts
regarding agency public statements once the County receives a
complete response to its May 2014 FOIA to EPA.” ECF No. 172-1,
PageID # 5974. Based on this statement, the County supplemented Appendix A to its motion for summary judgment three
times without leave of court. Under Local Rule 7.4, “[n]o further
or supplemental briefing shall be submitted without leave of
court.” Court staff responded to a request from the County’s counsel regarding the manner of filing at least one of the County’s supplements, but that was merely a logistical discussion that did not
constitute leave of court. The County may not reserve a right it
does not have. However, whether considering or striking ECF Nos.
190, 194, and 216-8, the court reaches the same result on the
County’s motion.
App. 104
III. STANDARD.
Summary judgment shall be granted when “the
movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.
2000). The movant must support his or her position
that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for the purposes of
the motion only), admissions, interrogatory answers, or
other materials” or “showing that the materials cited
do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). Summary judgment must
be granted against a party that fails to demonstrate
facts to establish what will be an essential element at
trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial – usually, but not
always, the defendant – has both the initial burden of
production and the ultimate burden of persuasion on a
motion for summary judgment. Nissan Fire & Marine
Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.
2000).
App. 105
The burden initially falls on the moving party to
identify for the court those “portions of the materials
on file that it believes demonstrate the absence of any
genuine issue of material fact.” T.W. Elec. Serv., Inc. v.
Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
1987) (citing Celotex Corp., 477 U.S. at 323). “When the
moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial. T.W.
Elec. Serv., Inc., 809 F.2d at 630. At least some “ ‘significant probative evidence tending to support the complaint’ ” must be produced. Id. (quoting First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290
(1968)); see also Addisu, 198 F.3d at 1134 (“A scintilla
of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes
the non-moving party’s claim implausible, that party
must come forward with more persuasive evidence
than would otherwise be necessary to show that there
is a genuine issue for trial.” Cal. Arch’l Bldg. Prods.,
Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475
U.S. at 587); accord Addisu, 198 F.3d at 1134 (“There
must be enough doubt for a ‘reasonable trier of fact’ to
find for plaintiffs in order to defeat the summary judgment motion.”).
App. 106
All evidence and inferences must be construed in
the light most favorable to the nonmoving party. T.W.
Elec. Serv., Inc., 809 F.2d at 631. Inferences may be
drawn from underlying facts not in dispute, as well as
from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct
evidence” produced by the moving party conflicts with
“direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of
the evidence set forth by the nonmoving party with respect to that fact.” Id.
IV. REQUESTS FOR JUDICIAL NOTICE.
In connection with its motion for summary judgment, the County requests that this court take judicial
notice of numerous documents. See ECF No. 173-2,
PageID #s 6007-18; ECF No. 190-2, PageID #s 6405-19;
ECF No. 216-17, PageID #s 7074-80. Plaintiffs have not
opposed any of the County’s requests.
The court takes judicial notice of the following exhibits in support of the County’s motion for summary
judgment as either public records, government documents, or the contents of the Federal Register: Exhibits
1 to 21, 23 to 42, the second page of 43, and 44 to 45.
See ECF No. 173. The court also takes judicial notice of
Exhibits 1 to 5 in support of the County’s reply memorandum as public records and government documents.
See ECF No. 216.
The court declines to take judicial notice of Exhibit
22 (a letter), ECF No. 173, and Exhibits 52 to 67
App. 107
(emails), ECF N
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