Joint Appendix — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.
Supreme Court briefMay 9, 2019
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No. 18-260
IN THE
Supreme Court of the United States
————
COUNTY OF MAUI,
v.
Petitioner,
HAWAI‘I WILDLIFE FUND; SIERRA CLUB MAUI GROUP; SURFRIDER FOUNDATION;
WEST MAUI PRESERVATION ASSOCIATION,
Respondents.
————
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
————
JOINT APPENDIX
————
HUNTON ANDREWS KURTH LLP
ELBERT LIN
Counsel of Record
MICHAEL R. SHEBELSKIE
951 East Byrd Street, East Tower
Richmond, Virginia 23219
elin@HuntonAK.com
(804) 788-8200
EARTHJUSTICE
DAVID L. HENKIN
Counsel of Record
850 Richards Street
Suite 400
Honolulu, Hawai‘i 96813
(808) 599-2436
dhenkin@earthjustice.org
COLLEEN P. DOYLE
DIANA PFEFFER MARTIN
550 South Hope Street
Suite 2000
Los Angeles, California 90071
(213) 532-2000
Counsel for Respondents
COUNTY OF MAUI
MOANA M. LUTEY
RICHELLE M. THOMSON
200 South High Street
Wailuku, Maui, Hawai‘i 96793
(808) 270-7740
Counsel for Petitioner
May 9, 2019
PETITION FOR CERTIORARI FILED AUGUST 27, 2018
CERTIORARI GRANTED FEBRUARY 19, 2019
TABLE OF CONTENTS
Page
Relevant Docket Entries – United States
District Court for the District of Hawai‘i ...........
JA1
Relevant Docket Entries – United States Court
of Appeals for the Ninth Circuit ......................... JA19
Final Responsiveness Summary for Public
Comment Period on EPA UIC Draft Permit No.
HI595001 (1995) (ER321, ER322) (excerpt) ....... JA27
Responsiveness Summary to Comments Received
by March 31, 1996 on EPA UIC Permit No.
HI596001 (May 15, 1996) (ER306, ER318)
(excerpt) ............................................................... JA29
First Amended Complaint for Declaratory and
Injunctive Relief, Hawai‘i Wildlife Fund v.
County of Maui, No. 1:12-cv-00198-SOM-BMK
(D. Haw. Aug. 9, 2012) (ECF No. 36) .................. JA31
Defendant County of Maui’s Answer to First
Amended Complaint for Declaratory and Injunctive Relief Filed on August 9, 2012, Hawai‘i
Wildlife Fund v. County of Maui, No. 1:12-cv00198-SOM-BMK (D. Haw. Aug. 23, 2012) (ECF
No. 41) .................................................................. JA53
State of Hawai‘i Department of Health et al.,
Lahaina Groundwater Tracer Study, Lahaina,
Maui, Hawai‘i, Final Report (June 2013) (ECF
Nos. 73-10, 127-2, 129-3) (excerpt) ..................... JA67
Defendant County of Maui’s Response to
Plaintiffs’ Rule 56.1 Concise Statement, Hawai‘i
Wildlife Fund v. County of Maui, No. 1:12-cv00198-SOM-BMK (D. Haw. Apr. 21, 2014) (ECF
No. 79) (excerpt) .................................................. JA77
(i)
ii
TABLE OF CONTENTS—Continued
Page
Defendant County of Maui’s Response to
Plaintiffs’ Rule 56.1 Concise Statement, Hawai‘i
Wildlife Fund v. County of Maui, No. 1:12-cv00198-SOM-BMK (D. Haw. Dec. 22, 2014) (ECF
No. 137) (excerpt) ................................................ JA82
Order Granting Petition for a Writ of Certiorari
Limited to Question 1 Presented by the Petition,
County of Maui v. Hawai‘i Wildlife Fund, No.
18-260 (U.S. Feb. 19, 2019) ................................. JA87
NOTICE
The following items are not reproduced in this joint
appendix because they have already been reproduced
in the appendix to the Petition for a Writ of Certiorari,
at the pages indicated:
Order Denying Defendant’s Motion for Stay
and Granting Plaintiffs’ Motion for Partial
Summary Judgment, Hawai‘i Wildlife Fund
v. County of Maui, 24 F. Supp. 3d 980
(D. Haw. 2014) ............................................App. 32
Order Granting Plaintiffs’ Motion for
Partial Summary Judgment and Denying
Defendant’s Motion for Partial Summary
Judgment, Hawai‘i Wildlife Fund v. County
of Maui, No. 12-00198 SOM/BMK, 2015 WL
328227 (D. Haw. Jan. 23, 2015) .................App. 85
Order and Amended Opinion, Hawai‘i
Wildlife Fund v. County of Maui, 886 F.3d
737 (9th Cir. 2018)........................................App. 1
JA1
U.S. DISTRICT COURT,
DISTRICT OF HAWAI’I
————
No. 1:12-cv-00198-SOM-BMK
————
HAWAI’I WILDLIFE FUND, et al.,
v.
COUNTY OF MAUI.
————
RELEVANT DOCKET ENTRIES
DATE
NO.
PROCEEDINGS
04/16/2012 1
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF against
County of Maui - filed by Sierra
Club - Maui Group, Hawaii Wildlife
F und, Surfrider Foundation, West
Maui Preservation Association.
(Attachments: # 1 Civil Cover Sheet)
(emt, ) (Entered: 04/16/2012)
05/09/2012 8
MOTION to Dismiss Complaint filed
April 16, 2012 Jane E. Lovell appearing for Defendant County of Maui
(Attachments: # 1 Memorandum in
Support of Defendant County of
Maui’s Motion to Dismiss Complaint
filed April 16, 2012, # 2 Request for
Judicial Notice, # 3 Exhibit A, # 4
Exhibit B, # 5 Exhibit C, # 6 Exhibit
D, # 7 Exhibit E, # 8 Exhibit F, # 9
Declaration of Jane Lovell, # 10
Certificate of Service)(Lovell, Jane)
(Entered: 05/09/2012)
JA2
DATE
NO.
PROCEEDINGS
07/31/2012 31 EP: Defendant County of Maui’s
Motion to Dismiss Complaint Filed
4/16/12 8 and Plaintiffs’ Motion to
Strike Exhibits C and D in Support
of Defendant’s Motion to Dismiss
16 - Court informed counsel that her
brother is employed by U.S. Geological
Survey. However, he has not worked
on the project, and she has not
discussed the merits of the case with
him.Arguments.Motions taken under
advisement.Court to issue a written
ruling within the next few weeks.
Motion Hearing held on 7/31/2012 re
8 MOTION to Dismiss Complaint
filed April 16, 2012 filed by County
of Maui, 16 MOTION to Strike 8
MOTION to Dismiss Complaint filed
April 16, 2012 Plaintiffs’ Motion to
Strike Exhibits C and D in Support
of Defendant’s Motion to Dismiss
MOTION to Strike 8 MOTION to
Dismiss Complaint filed April 16,
2012 Plaintiffs’ Motion to Strike
Exhibits C and D in Support of
Defendant’s Motion to Dismiss filed
by Surfrider Foundation, Hawaii
Wildlife Fund, West Maui Preservation Association, Sierra Club - Maui
Group, Motions Taken Under Advisement: 8 MOTION to Dismiss
Complaint filed April 16, 2012, 16
MOTION to Strike 8 MOTION to
Dismiss Complaint filed April 16,
JA3
DATE
NO.
PROCEEDINGS
2012 Plaintiffs’ Motion to Strike
Exhibits C and D in Support of
Defendant’s Motion to Dismiss
MOTION to Strike 8 MOTION to
Dismiss Complaint filed April 16,
2012 Plaintiffs’ Motion to Strike
Exhibits C and D in Support of
Defendant’s Motion to Dismiss. (Court
Reporter Debra Chun.) (JUDGE
SUSAN OKI MOLLWAY)(tbf, )No
COS issued for this docket entry
(Entered: 07/31/2012)
08/08/2012 34 ORDER DENYING MOTION TO
DISMISS 8 - Signed by CHIEF
JUDGE SUSAN OKI MOLLWAY on
8/8/12. -- “The court denies the
motion to dismiss and the motion to
strike exhibits.”, re 8 ; 16 (emt, )
CERTIFICATE OF SERVICE
Participants registered to receive
electronic notifications received this
document electronically at the e-mail
address listed on the Notice of Electronic Filing (NEF). Participants not
registered to receive electronic notifications were served by first class
mail on the date of this docket entry
(Entered: 08/08/2012)
08/09/2012 36 AMENDED COMPLAINT [FIRST]
against All Defendants, filed by Sierra
Club - Maui Group, Hawaii Wildlife
Fund, Surfrider Foundation, West
Maui Preservation Association.
JA4
DATE
NO.
PROCEEDINGS
(Attachments: # 1 Certificate of
Service)(Ishida, Caroline) (Entered:
08/09/2012)
08/23/2012 41 Defendant County of Maui’s ANSWER
to 36 Amended Complaint for
Declaratory and Injunctive Relief
filed on August 9, 2012 by County of
Maui. (Attachments: # 1 Demand for
Jury Trial, # 2 Certificate of Service)
(Lovell, Jane) (Entered: 08/23/2012)
03/17/2014 71 MOTION for Judgment on the
Pleadings Colleen P. Doyle appearing for Defendant County of Maui
(Attachments: # 1 Memorandum in
Support of Defendant County of Maui’s
Motion for Judgment on the Pleadings, or in the Alternative, Stay, # 2
Defendant County Of Mauis Request
For Judicial Notice, # 3 Exhibit A
Letter and NPDES Permit Application dated Nov. 14, 2012, # 4 Exhibit
B Letter dated Mar. 6, 2014, # 5
Exhibit C 56 Fed. Reg. 64876, # 6
Exhibit D 48 Fed. Reg. 15662, # 7
Exhibit E Letter dated Feb. 13, 2012,
# 8 Exhibit F 73 Fed. Reg. 70418, # 9
Exhibit G 66 Fed. Reg. 2960, # 10
Exhibit H 63 Fed. Reg. 7858, # 11
Exhibit I NPDES Permit Manual, #
12 Exhibit J Letter and AMAP dated
Mar. 27, 2012, # 13 Exhibit K Letter
dated Feb. 8, 2011, # 14 Certificate
of Service)(Doyle, Colleen) (Entered:
03/17/2014)
JA5
DATE
NO.
PROCEEDINGS
03/17/2014 72 MOTION for Partial Summary Judgment David L. Henkin appearing for
Plaintiffs Hawaii Wildlife Fund,
Sierra Club - Maui Group, Surfrider
Foundation, West Maui Preservation Association (Attachments: # 1
Memorandum in Support of Motion
for Partial Summary Judgment, # 2
Certificate of Service)(Henkin, David)
(Entered: 03/17/2014)
04/21/2014 78 MEMORANDUM in Opposition re
72 MOTION for Partial Summary
Judgment filed by County of Maui.
(Doyle, Colleen) (Entered: 04/21/2014)
04/21/2014 84 MEMORANDUM in Opposition to
71 Defendant’s Motion for Judgment
on the Pleadings filed by Hawaii
Wildlife Fund, Sierra Club - Maui
Group, Surfrider Foundation, West
Maui Preservation Association.
(Attachments: # 1 Declaration of
David L. Henkin, # 2 Exhibit A, # 3
Certificate of Service)(Henkin, David)
Modified on 4/22/2014 to add linkage
to 71 Motion for Judgment on the
Pleadings
(emt,
).
(Entered:
04/21/2014)
04/28/2014 91 REPLY in Support of Motion for
Partial Summary Judgment re 72
filed by Hawaii Wildlife Fund, Sierra
Club - Maui Group, Surfrider Foundation, West Maui Preservation
JA6
DATE
NO.
PROCEEDINGS
Association. (Attachments: # 1 Certificate of Service)(Henkin, David)
Modified on 4/29/2014 to add linkage
to 72 Motion for Partial Summary
Judgment
(emt,
).
(Entered:
04/28/2014)
05/12/2014 101 EP: Defendant County of Maui’s
Motion for Judgment on the Pleadings, or in the Alternative, Stay 71 ;
Plaintiffs’ Motion for Partial Summary Judgment 72 ;Request for
Judicial Notice in Support of Defendant County of Maui’s Opposition to
Plaintiffs’ Motion for Partial Summary Judgment 80 ;Defendant
County of Maui’s Objections to and
Request to Strike Evidence Submitted by Plaintiffs in Support of Their
Motion for Partial Summary Judgment 81 ;Defendant County of
Maui’s Request for Judicial Notice in
Support of its Reply Memorandum to
Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for
Judgment on the Pleadings 89 Discussion held re: the possibility of
settlement, a stay of the case, and
the Courts inclination. Motions taken
under advisement. If there is any
progress in settlement, parties to
notify the Court asap. Court to issue
a ruling by the end of the month.
Motion Hearing held on 5/12/2014 re
89 Defendant County of Maui’s
JA7
DATE
NO.
PROCEEDINGS
REQUEST for Judicial Notice in
Support of its Reply Memorandum to
Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for
Judgment on the Pleadings filed by
County of Maui, 81 Objections to and
REQUEST to Strike Evidence
Submitted by Plaintiffs in Support of
Their Motion for Partial Summary
Judgment filed by County of Maui,
80 REQUEST for Judicial Notice in
Support of Defendant County of
Maui’s Opposition to Plaintiffs’ Motion
for Partial Summary Judgment filed
by County of Maui, 71 MOTION for
Judgment on the Pleadings filed by
County of Maui, 72 MOTION for
Partial Summary Judgment filed by
Surfrider Foundation, Hawaii Wildlife
Fund, West Maui Preservation Association, Sierra Club - Maui Group,
Motions Taken Under Advisement:
89 Defendant County of Maui’s
REQUEST for Judicial Notice in
Support of its Reply Memorandum to
Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for Judgment on the Pleadings, 81 Objections
to and REQUEST to Strike Evidence
Submitted by Plaintiffs in Support of
Their Motion for Partial Summary
Judgment, 80 REQUEST for Judicial Notice in Support of Defendant
JA8
DATE
NO.
PROCEEDINGS
County of Maui’s Opposition to Plaintiffs’ Motion for Partial Summary
Judgment, 71 MOTION for Judgment on the Pleadings , 72 MOTION
for Partial Summary Judgment .
(Court Reporter Debra Chun.)
(JUDGE SUSAN OKI MOLLWAY)
(tbf, )No COS issued for this docket
entry (Entered: 05/12/2014)
05/30/2014 113 ORDER DENYING DEFENDANT’S
MOTION FOR STAY AND GRANTING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
re 71 , 72 , 80 , 81 , 89 , 108 - - Signed
by CHIEF JUDGE SUSAN OKI
MOLLWAY on 5/30/2014. “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. 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
Defendants Second May 23, 2014
Letter. That motion is denied.” (emt, )
JA9
DATE
NO.
PROCEEDINGS
CERTIFICATE OF SERVICE
Participants registered to receive
electronic notifications received this
document electronically at the e-mail
address listed on the Notice of Electronic Filing (NEF). Participants not
registered to receive electronic notifications were served by first class
mail on the date of this docket entry
(Entered: 05/30/2014)
11/05/2014 124 MOTION for Partial Summary
Judgment Defendant County Of
Mauis Motion For Partial Summary
Judgment As To Wells 1 And 2
Colleen P. Doyle appearing for
Defendant County of Maui (Doyle,
Colleen) (Entered: 11/05/2014)
11/05/2014 125 Defendant County of Maui’s MEMORANDUM in Support of 124 the
County’s MOTION for Partial Summary Judgment as to Wells 1 and 2 filed by County of Maui. (Doyle,
Colleen) Modified on 11/5/2014 to
add linkage to 124 Motion for Partial
Summary Judgment (emt, ). (Entered:
11/05/2014)
11/05/2014 128 MOTION for Summary Judgment
David L. Henkin appearing for
Plaintiffs Hawaii Wildlife Fund,
Sierra Club - Maui Group, Surfrider
Foundation, West Maui Preservation Association (Attachments: # 1
Memorandum, # 2 Certificate of
JA10
DATE
NO.
PROCEEDINGS
Service)(Henkin, David) (Entered:
11/05/2014)
12/22/2014 136 Defendant County of Maui’s OPPOSITION to 128 Plaintiffs’ MOTION
for Summary Judgment Re: Defendant’s Liability for Unpermitted Discharges Into Wells 1 and 2 - filed by
County of Maui. (Attachments: # 1
Certificate of Service)(Doyle, Colleen)
Modified on 12/23/2014 to clarify
docket text (emt, ). (Entered:
12/22/2014)
12/22/2014 138 MEMORANDUM in Opposition re
124 MOTION for Partial Summary
Judgment Defendant County Of
Mauis Motion For Partial Summary
Judgment As To Wells 1 And 2 filed
by Hawaii Wildlife Fund, Sierra
Club - Maui Group, Surfrider Foundation, West Maui Preservation Association. (Attachments: # 1 Certificate
of Service)(Henkin, David) (Entered:
12/22/2014)
12/29/2014 140 REPLY MEMORANDUM in Support
of 124 MOTION for Partial Summary Judgment Defendant County
Of Maui’s Motion For Partial Summary Judgment As To Wells 1 And 2
and Motion to Strike filed by County
of Maui. (Attachments: # 1 Certificate of Service)(Doyle, Colleen)
Modified on 12/30/2014 (emt, ). Docket
text further modified on 12/30/2014
JA11
DATE
NO.
PROCEEDINGS
to un-italicize “and Motion to
Strike.” (afc). (Entered: 12/29/2014)
12/29/2014 148 REPLY in Support of 128 MOTION
for Summary Judgment Re: Defendant’s Liability for Unpermitted Discharges Into Wells 1 and 2 filed by
Hawaii Wildlife Fund, Sierra Club Maui Group, Surfrider Foundation,
West Maui Preservation Association.
(Attachments: # 1 Declaration of
David L. Henkin, # 2 Exhibit 41, # 3
Exhibit 42, # 4 Declaration of Jean E.
Moran, Ph.D., # 5 Exhibit 43, # 6
Certificate of Service)(Henkin, David)
Modified on 12/30/2014 (emt, ).
(Entered: 12/29/2014)
01/12/2015 157 EP: Defendant County of Maui’s
Motion for Partial Summary Judgment as to Wells 1 and 2 124
;Plaintiffs’ Motion for Summary
Judgment re: Defendant’s Liability
for Unpermitted Discharges Into
Wells 1 and 2 128 ; and Motion to
Strike 137 Portions of the Declaration of E. John List, PH.D., P.E., and
Defendant’s Exhibits “7”-“9” 145 Arguments.All motions taken under
advisement.Court to issue an order
by the end of the month at the latest.
Motion Hearing held on 1/12/2015
re 145 MOTION to Strike 137
Portions of the Declaration of E.
JA12
DATE
NO.
PROCEEDINGS
John List, PH.D., P.E., and Defendant’s Exhibits “7”-“9” filed by Surfrider
Foundation, Hawaii Wildlife Fund,
West Maui Preservation Association,
Sierra Club - Maui Group, 124
MOTION for Partial Summary Judgment Defendant County Of Mauis
Motion For Partial Summary Judgment As To Wells 1 And 2 filed by
County of Maui, 128 MOTION for
Summary Judgment filed by Surfrider Foundation, Hawaii Wildlife
Fund, West Maui Preservation Association, Sierra Club - Maui Group.
(Court Reporter Debra Chun.)
(JUDGE SUSAN OKI MOLLWAY)
(tbf, )No COS issued for this docket
entry (Entered: 01/12/2015)
01/23/2015 162 ORDER GRANTING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING
DEFENDANT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
re 124 , 128 , 145 - Signed by CHIEF
JUDGE SUSAN OKI MOLLWAY on
1/23/2015.
“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.” (emt, )
JA13
DATE
NO.
PROCEEDINGS
CERTIFICATE OF SERVICE
Participants registered to receive
electronic notifications received this
document electronically at the e-mail
address listed on the Notice of Electronic Filing (NEF). Participants not
registered to receive electronic notifications were served by first class
mail on the date of this docket entry
(Entered: 01/23/2015)
03/10/2015 172 MOTION for Summary Judgment
Based on Lack of Fair Notice Colleen
P. Doyle appearing for Defendant
County of Maui (Attachments: # 1
Memorandum in Support of the
Countys Motion for Summary Judgment Based on Lack of Fair Notice,
Including Appendix A, # 2 Certificate
of Service)(Doyle, Colleen) (Entered:
03/10/2015)
03/11/2015 176 MOTION for Partial Summary
Judgment
re:
Civil
Penalties
Summer M. Kupau appearing for
Plaintiffs Hawaii Wildlife Fund,
Sierra Club - Maui Group, Surfrider
Foundation, West Maui Preservation Association (Attachments: # 1
Memorandum in Support of Motion,
# 2 Certificate of Service)(Kupau,
Summer) (Entered: 03/11/2015)
JA14
DATE
NO.
PROCEEDINGS
05/04/2015 203 MEMORANDUM in Opposition re
176 MOTION for Partial Summary
Judgment re: Civil Penalties filed by
County of Maui. (Attachments: # 1
Certificate of Service)(Doyle, Colleen)
(Entered: 05/04/2015)
05/06/2015 208 MEMORANDUM in Opposition re
172 MOTION for Summary Judgment Based on Lack of Fair Notice
filed by Hawaii Wildlife Fund, Sierra
Club - Maui Group, Surfrider Foundation, West Maui Preservation
Association. (Attachments: # 1 Certificate of Service)(Henkin, David)
(Entered: 05/06/2015)
05/13/2015 216 REPLY re 172 MOTION for Summary Judgment Based on Lack of
Fair Notice filed by County of Maui.
(Attachments: # 1 Declaration of
Kyle Ginoza, P.E., # 2 Exhibit 1, # 3
Exhibit 2, # 4 Exhibit 3, # 5 Exhibit
4, # 6 Exhibit 5, # 7 Declaration of
Stephanie Chen, # 8 Fourth Supplemental Appendix A, # 9 Exhibit 6, #
10 Exhibit 7, # 11 Exhibit 8, # 12
Exhibit 9, # 13 Exhibit 10, # 14
Exhibit 11, # 15 Exhibit 12, # 16
Exhibit 13, # 17 Request for Judicial
Notice, # 18 Certificate of Service)
(Doyle, Colleen) (Entered: 05/13/2015)
05/13/2015 217 REPLY re 176 MOTION for Partial
Summary Judgment re: Civil Penalties filed by Hawaii Wildlife Fund,
JA15
DATE
NO.
PROCEEDINGS
Sierra Club - Maui Group, Surfrider
Foundation, West Maui Preservation Association. (Attachments: # 1
Declaration of Summer Kupau-Odo,
# 2 Exhibit 5, # 3 Exhibit 6, # 4
Exhibit 7, # 5 Exhibit 8, # 6 Exhibit
9, # 7 Exhibit 10, # 8 Certificate of
Service)(Kupau, Summer) (Entered:
05/13/2015)
05/27/2015 228 EP: : Defendant County of Maui’s
Motion for Summary Judgment Based
on Lack of Fair Notice 172 and
Plaintiffs’ Motion for Partial Summary Judgment re: Civil Penalties
176 -Arguments.Both motions taken
under advisement.Court to issue a
written ruling in a few weeks.
Motion Hearing held on 5/27/2015 re
176 MOTION for Partial Summary
Judgment re: Civil Penalties filed by
Surfrider Foundation, Hawaii Wildlife
Fund, West Maui Preservation
Association, Sierra Club - Maui
Group, 172 MOTION for Summary
Judgment Based on Lack of Fair
Notice filed by County of Maui,
Motions Taken Under Advisement:
176 MOTION for Partial Summary
Judgment re: Civil Penalties, 172
MOTION for Summary Judgment
Based on Lack of Fair Notice. (Court
Reporter Debra Chun.) (JUDGE
SUSAN OKI MOLLWAY)(tbf, )No
JA16
DATE
NO.
PROCEEDINGS
COS issued for this docket entry
(Entered: 05/27/2015)
06/25/2015 242 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 re 172 ,
176 - Signed by CHIEF JUDGE
SUSAN
OKI
MOLLWAY
on
6/25/2015. (emt, )
CERTIFICATE OF SERVICE
Participants registered to receive
electronic notifications received this
document electronically at the e-mail
address listed on the Notice of Electronic Filing (NEF). Participants not
registered to receive electronic notifications were served by first class
mail on the date of this docket entry
(Entered: 06/25/2015)
11/17/2015 259 SETTLEMENT AGREEMENT AND
ORDER RE: REMEDIES; EXHIBIT
A by Hawaii Wildlife Fund, Sierra
Club - Maui Group, Surfrider Foundation, West Maui Preservation
Association - Signed by JUDGE
SUSAN
OKI
MOLLWAY
on
11/17/2015. “This Agreement resolves
all remaining issues in the remedies
phase of the above-captioned lawsuit. The effective date (“Effective
JA17
DATE
NO.
PROCEEDINGS
Date”) of this Agreement is the date
the Agreement is entered by the
Court.” (Attachments: # 1 Exhibit A)
(emt, ) (Entered: 11/17/2015)
11/17/2015 260 CLERK’S JUDGMENT entered on
11/17/2015 pursuant to 113 , 162 ,
242 , 259 . (emt, )
CERTIFICATE OF SERVICE
Participants registered to receive
electronic notifications received this
document electronically at the e-mail
address listed on the Notice of Electronic Filing (NEF). Participants not
registered to receive electronic notifications were served by first class
mail on the date of this docket entry
(Entered: 11/17/2015)
12/14/2015 261 NOTICE OF APPEAL as to 260
Clerk’s Judgment, by County of
Maui. Filing fee $ 505, receipt
number 0975-1644744. (Attachments:
# 1 Representation Statement, # 2
Certificate of Service)(Doyle, Colleen)
9CCA 15-17447 Docket text entry
modified on 12/15/2015 to include
adding reference to the 9CCA case
number. (afc) (Entered: 12/14/2015)
04/23/2018 277 MANDATE of USCA as to 261 Notice
of Appeal, filed by County of Maui.
“The judgment of this Court, entered
February 01, 2018, takes effect this
date. This constitutes the formal
JA18
DATE
NO.
PROCEEDINGS
mandate of this Court issued pursuant to Rule41(a) of the Federal Rules
of Appellate Procedure. Costs are
taxed against the appellant in the
amount of $280.58.”(cib, ) (Entered:
04/23/2018)
JA19
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
————
No. 15-17447
————
HAWAI’I WILDLIFE FUND, et al.,
v.
COUNTY OF MAUI.
————
RELEVANT DOCKET ENTRIES
DATE
NO.
12/15/2015 1
PROCEEDINGS
DOCKETED CAUSE AND ENTERED
APPEARANCES
OF
COUNSEL. SEND MQ: Yes. The
schedule is set as follows: Mediation
Questionnaire due on 12/22/2015.
Transcript ordered by 01/13/2016.
Transcript due 02/12/2016. Appellant
County of Maui opening brief due
03/23/2016. Appellees Hawaii Wildlife
Fund, Sierra Club - Maui Group,
Surfrider Foundation and West Maui
Preservation Association answering
brief due 04/22/2016. Appellant's
optional reply brief is due 14 days
after service of the answering brief.
[9792312] (IV) [Entered: 12/15/2015
09:12 AM]
JA20
DATE
NO.
PROCEEDINGS
03/21/2016 5
Submitted (ECF) Opening Brief for
review. Submitted by Appellant
County of Maui. Date of service:
03/21/2016. [9909310] [15-17447] -[COURT UPDATE: Attached corrected brief. 03/24/2016 by TYL]
(Shebelskie, Michael) [Entered:
03/21/2016 02:43 PM]
03/21/2016 6
Submitted (ECF) excerpts of record.
Submitted by Appellant County of
Maui. Date of service: 03/21/2016.
[9909360] [15-17447] (Shebelskie,
Michael) [Entered: 03/21/2016 02:55
PM]
03/28/2016 12 Submitted (ECF) Amicus brief for
review and filed Motion to become
amicus curiae. Submitted by 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. Date of service:
03/28/2016. [9917783] [15-17447]
(Chung, David) [Entered: 03/28/2016
01:31 PM]
03/28/2016 13 Submitted (ECF) Amicus brief for
review and filed Motion to become
amicus curiae. Submitted by ASSOCIATION OF CALIFORNIA WATER
JA21
DATE
NO.
PROCEEDINGS
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. Date
of service: 03/28/2016. [9918506] [1517447] --[COURT UPDATE: Attached
corrected brief and motion. 03/29/2016
by TYL] (Walston, Roderick) [Entered:
03/28/2016 04:52 PM]
05/23/2016 35 Submitted (ECF) Answering Brief
for review. Submitted by Appellees
Hawaii Wildlife Fund, Sierra Club Maui Group, Surfrider Foundation
and West Maui Preservation Association. Date of service: 05/23/2016.
[9988009] [15-17447] (Henkin, David)
[Entered: 05/23/2016 09:06 PM]
05/23/2016 36 Submitted (ECF) supplemental
excerpts of record. Submitted by
Appellees Hawaii Wildlife Fund,
Sierra Club - Maui Group, Surfrider
Foundation and West Maui Preservation Association. Date of service:
05/23/2016. [9988010] [15-17447]
JA22
DATE
NO.
PROCEEDINGS
(Henkin, David) [Entered: 05/23/2016
09:12 PM]
05/31/2016 40 Submitted (ECF) Amicus brief for
review (by government or with
consent per FRAP 29(a)). Submitted
by United States. Date of service:
05/31/2016. [9997388] [15-17447]
(Turner,
Frederick)
[Entered:
05/31/2016 04:57 PM]
07/01/2016 47 Filed (ECF) Errata to Opening brief
([5] Brief Submitted for Review (ECF
Filing)). Filed by Appellant County
of Maui. Date of service: 07/01/2016.
[10036766] [15-17447] (Shebelskie,
Michael) [Entered: 07/01/2016 12:57
PM]
07/01/2016 48 Submitted (ECF) Reply Brief for
review. Submitted by Appellant
County of Maui. Date of service:
07/01/2016.
[10038290]--[COURT
ENTERED FILING to correct entry
[46].] (SLM) [Entered: 07/05/2016
11:18 AM]
10/12/2017 63 ARGUED AND SUBMITTED TO
MARY M. SCHROEDER, DOROTHY
W. NELSON and M. MARGARET
MCKEOWN.
[10616321]
(KM)
[Entered: 10/12/2017 06:07 PM]
02/01/2018 65 FILED OPINION (MARY M.
SCHROEDER,
DOROTHY
W.
NELSON and M. MARGARET
MCKEOWN) AFFIRMED. Judge:
JA23
DATE
NO.
PROCEEDINGS
DWN Authoring, FILED AND
ENTERED JUDGMENT. [10747093]-[Edited: attached corrected PDF of
opinion (corrected typos). 02/08/2018
by SLM] (RMM) [Entered: 02/01/2018
07:13 AM]
03/01/2018 69 Filed (ECF) Appellant County of
Maui petition for rehearing en banc
(from 02/01/2018 opinion). Date of
service: 03/01/2018. [10782170] [1517447] (Shebelskie, Michael) [Entered:
03/01/2018 09:17 AM]
03/08/2018 71 Submitted (ECF) Amicus brief for
review and filed Motion to become
amicus curiae. Submitted by 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, etc.
Date of service: 03/08/2018. [10792362]
[15-17447]--[COURT UPDATE: Backdated entry to reflect correct filing
date. 03/09/2018 by SLM] (Hagerty,
Shawn) [Entered: 03/09/2018 10:23
AM]
03/12/2018 73 Submitted (ECF) Amicus brief for
review and filed Motion to become
amicus curiae. Submitted by Association of American Railroads;
American Farm Bureau Federation;
JA24
DATE
NO.
PROCEEDINGS
American Iron and Steel Institute;
American
Petroleum
Institute;
National Mining Association; The
Fertilizer Institute; and Utility
Water Act Group. Date of service:
03/12/2018. [10794390] [15-17447]
(Chung, David) [Entered: 03/12/2018
11:19 AM]
03/12/2018 75 Submitted (ECF) Amicus brief for
review (by government or with
consent per FRAP 29(a)). Submitted
by The States of Arizona, Alabama,
Alaska, Arkansas, Georgia, Indiana,
Kansas,
Louisiana,
Missouri,
Montana,
Nebraska,
Nevada,
Oklahoma, South Carolina, Texas,
Utah, West Virginia, and Wyoming.
Date of service: 03/12/2018. [10795442]
[15-17447]
(Dranias,
Nicholas)
[Entered: 03/12/2018 05:16 PM]
03/30/2018 85 Filed order and amended opinion
(MARY M. SCHROEDER, DOROTHY
W. NELSON and M. MARGARET
MCKEOWN). Amending Disposition
Opinion AFFIRMEDThe Opinion
filed on February 1, 2018, is
amended as follows:(SEE ORDER
FOR FULL TEXT) 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
JA25
DATE
NO.
PROCEEDINGS
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. [10818831] (RMM) [Entered:
03/30/2018 09:27 AM]
04/23/2018 91 MANDATE ISSUED.(MMS, DWN
and MMM) Costs taxed against
Appellant in the amount of $280.58.
[10846033] (RL) [Entered: 04/23/2018
09:11 AM]
06/08/2018 93 Received letter from the Supreme
Court dated 06/04/2018. The application for an extension of time within
which to file a petition for a writ of
certiorari in the above-entitled case
has been presented to Justice
Kennedy, who on June 4, 2018,
extended the time to and including
August 27, 2018. [10902633] (RR)
[Entered: 06/08/2018 03:28 PM]
08/31/2018 94 Supreme Court Case Info Case
number: 18-260 Filed on: 08/27/2018
Cert Petition Action 1: Pending
[10997644] (RR) [Entered: 08/31/2018
12:04 PM]
02/21/2019 96 Supreme Court Case Info Case
number: 18-260 Filed on: 08/27/2018
JA26
DATE
NO.
PROCEEDINGS
Cert Petition Action 1: Granted,
02/19/2019 [11203351] (RR) [Entered:
02/21/2019 04:02 PM]
JA27
FINAL RESPONSIVENESS SUMMARY FOR
PUBLIC COMMENT PERIOD ON EPA
UIC DRAFT PERMIT NO. HI595001
Lahaina Wastewater Reclamation Facility
3300 Honoapiilani Highway
ISSUED TO:
Maui County, Dept. of Public Works
200 South High Street
Wailuku, HI 96793
1. RE: Safety of the environment
COMMENT:
The permitting of the injection wells is not an
appropriate way to deal with sewage. Opposition
to the injection wells is generated by a concern
about the safety of the environment in Lahaina,
and the health effects on those swimming in the
area.
RESPONSE:
Disposal of properly treated wastewater though
Underground Injection Control (UIC) wells is
allowed under the Safe Drinking Water Act
(SDWA). The Lahaina Wastewater Reclamation
Facility (LWRF) is currently providing tertiary
treatment of the injected effluent through clorine
disinfection and the commissioning of the
effluent sand filtration system and UV
disinfection system, which are used to kill
pathogens. Adequate safeguards such as ongoing
monitoring requirements will ensure protection
of public health concerns. To date, studies have
not detected the effluent offshore.
JA28
2. RE: Protection of Surface Water vs. Groundwater
COMMENT:
EPA should not allow the county of Maui to
inject wastewater into the ocean. By allowing the
county to have more injection wells, the county is
allowed to take the easy way out. The protection
of the ocean environment is just as important as
the protection of groundwater.
RESPONSE:
The purpose of the Underground Injection Control
(UIC) Program and this permit is to protect
Underground Sources of Drinking Water (USDWs).
If a hydrologic nexus is proved between the
injection wells and the ocean, surface water
quality standards can be required in the UIC
permit to protect ocean water quality.
3. RE: Request for a public hearing
COMMENT:
It is unfortunate political pandering that has led
to the algae blooms, coral reef die-offs from
siltation and a loss of water clarity from turbidity. If the agribusiness leaders change their
minds about water reclamation in their crops,
that will lead back to the inane use of injection
wells. Due to the lack of incomplete reporting by
the newspapers, a public hearing is requested in
order to bring out the truths in a public debate.
Injection permits should not be given until all
studies on algae blooms and alternative water
uses are clearly explained and conclusive.
* * *
JA29
RESPONSIVENESS SUMMARY TO
COMMENTS RECEIVED BY MARCH 31, 1996 ON
EPA UIC PERMIT NO. HI596001
Lahaina Wastewater Reclamation Facility
3300 Honoapiilani Highway
ISSUED TO:
Maui County, Dept of Public Works
200 South High Street
Wailuku, HI 96793
5/15/96
* * *
13. SUBJECT: Nitrogen Levels
COMMENT:
I would like to see a limit of a 6.7 mgd placed on
the existing injection wells and not only use the
current best practices for removing Nitrogen
and other nutrients from going into these wells,
but go a bit beyond the practical economic limits
to remove most of the nutrients (mainly Nitrogen
and Phosphorus) until a time where 100% of the
effluent is reused.
RESPONSE:
The County of Maui will be experimenting with
the LWRF capabilities to remove Total Nitrogen
from its injected wastewater. However, as the
percentage of removed Nitrogen increases, the
ability to further remove remaining Nitrogen
becomes economically unfeasible. We will continue to work with the County to remove the
Nitrogen to its highest economically and efficiently feasible levels.
JA30
14. SUBJECT: NPDES Permitting
COMMENT:
If injected wastewater is to enter the ocean,
then the wastewater should be regulated by the
US EPA. If the proposed UIC Class V permit is
not the appropriate tool, then we would like to
recommend and encourage the EPA or HDOH
to establish a National Pollutant Discharge
Elimination System permit.
RESPONSE:
The purpose of the UIC Program and the permit
is to protect Underground Sources of Drinking
Water (USDWs). If a hydrologic nexus is proven
between the injection wells and the ocean, surface water quality standards can be required in
the UIC permit to protect ocean water quality.
Currently HDOH has primacy of the NPDES
program in the state of Hawaii. Should a nexus
be proven between the injection wells and the
ocean, EPA will definitely work with HDOH in
setting water surface standards.
15. SUBJECT: Semi-annual reporting
COMMENT:
Part II C.1. of the draft permit makes an incorrect name reference to a semi-annual report
required by the Hawaii Department of Health.
Presumably, the report to which you refer is
called an “Injection Well Status Report.”
RESPONSE:
The permit has been modified to reflect the
recommendation.
* * *
JA31
DAVID L. HENKIN
#6876
CAROLINE C. ISHIDA #9475
EARTHJUSTICE
223 South King Street, Suite 400
Honolulu, Hawai‘i 96813
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
Email: dhenkin@earthjustice.org
cishida@earthjustice.org
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI‘I
————
Civil No. 12-00198 SOM BMK
————
HAWAI‘I WILDLIFE FUND, a Hawai‘i non-profit
corporation, SIERRA CLUB - MAUI GROUP, a non-profit
corporation, SURFRIDER FOUNDATION, a non-profit
corporation, and WEST MAUI PRESERVATION
ASSOCIATION, a Hawai‘i non-profit corporation,
v.
Plaintiffs,
COUNTY OF MAUI,
Defendant.
————
FIRST AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF;
CERTIFICATE OF SERVICE
————
JA32
INTRODUCTION
1. This complaint alleges violations under the
Federal Water Pollution Control Act, also known as
the Clean Water Act (“CWA”), caused by the discharge
into the waters of West Maui of wastewater from
injection wells operated by defendant County of Maui
(“the County”) at the Lahaina Wastewater Reclamation Facility (“LWRF”) without the required National
Pollutant Discharge Elimination System (“NPDES”)
permit. Plaintiffs, Hawai‘i Wildlife Fund, Sierra ClubMaui Group, Surfrider Foundation, and West Maui
Preservation Association (collectively, “plaintiffs”) allege
on information and belief that wastewater (or “sewage”) from the treatment facility is injected into the
wells and then flows via groundwater through the
subsurface into nearshore Maui ocean waters. Plaintiffs
further allege on information and belief that unpermitted discharges from the LWRF injection wells
began prior to 2006, have continued on a daily basis
up to the present, and, absent action by defendant to
comply with the CWA, will continue.
2. Defendant’s actions at the injection wells at the
LWRF have had detrimental effects on, and pose an
ongoing threat to, the water quality and health of the
nearshore coastal waters and ecosystem, particularly
in the Kahekili Beach area of West Maui, where multiple freshwater seeps containing wastewater have been
detected by researchers conducting scientific studies.
3. Wastewater and additional pollutants from the
LWRF – including, but not limited to, nitrogen, phosphorus, suspended solids, bacteria, pharmaceuticals,
musk fragrances, and industrial chemicals – are
continuously discharged into some or all of the four
injection wells at the LWRF and continuously flow out
into the ocean through the hydrologically connected
JA33
groundwater. The LWRF injects wastewater into the
wells at an average of 3-5 million gallons per day.
4. The CWA’s National Pollutant Discharge Elimination System, 33 U.S.C. § 1342 and 40 C.F.R. pt. 122,
regulates discharges to surface waters through hydrologically connected groundwater.
5. To date, the County has failed to apply for, obtain
or comply with the terms of an NPDES permit for its
injection well discharges from the LWRF. Because the
County does not have a permit for the discharge of
wastewater and additional pollutants from the LWRF
into ocean waters via groundwater, it is in violation of
the CWA. 33 U.S.C. § 1311(a).
6. By this complaint, plaintiffs seek a declaratory
judgment that the County has been and continues to
be in violation of the CWA. Plaintiffs additionally seek
an injunction requiring the County promptly to apply
for, obtain and comply with the terms of an NPDES
permit to eliminate the LWRF’s ongoing illegal discharges. Plaintiffs also seek imposition of maximum
civil penalties for defendant’s longstanding and knowing violations of the CWA.
JURISDICTION AND VENUE
7. This lawsuit is brought pursuant to the CWA, 33
U.S.C §§ 1251 et seq. This Court has subject matter
jurisdiction over the claims for relief set forth herein
pursuant to 33 U.S.C. § 1365(a) (citizen suits to
enforce effluent standards or limitations under the
CWA), 28 U.S.C. § 1331 (actions arising under the
laws of the United States), and 28 U.S.C. §§ 2201-02
(power to issue declaratory judgments in cases of
actual controversy).
JA34
8. On June 28, 2011, plaintiffs gave written notice
of the violations set forth in this complaint, and of
their intent to file suit on these CWA claims, to the
Hawai‘i Department of Health (“DOH”), Environmental Protection Agency (“EPA”) Headquarters, EPA
Region IX, and the County. 33 U.S.C. § 1365(b)(1)(A).
9. More than sixty days has elapsed since service of
plaintiffs’ notice of intent to sue, as required by the
CWA. Id. § 1365(b)(1)(A). Neither the EPA nor DOH
has commenced or is diligently prosecuting a civil or
criminal action in a court of the United States or a
State to require the County to obtain an NPDES
permit or otherwise address the violations alleged by
plaintiffs in this complaint. Id. § 1365(b)(1)(B).
10. Venue properly lies in this judicial district by
virtue of CWA section 505(c)(1), id. § 1365(c)(1),
because the source of the violations at issue is located
within this judicial district.
11. Defendant has failed to obtain and comply with
the terms of an NPDES permit for the ongoing discharges of wastewater and other pollutants from the
LWRF’s injection wells into nearshore marine waters,
and these CWA violations will persist on a continuous
basis until defendant obtains an NPDES permit and
complies with permit limits designed to be protective
of nearshore water quality.
12. Defendant’s discharges began prior to 2006 and
have continuously travelled from the LWRF’s injection
wells through subsurface water to the ocean, and,
because the LWRF injects millions of gallons of
wastewater and other pollutants into the wells on a
daily basis, the violations are likely to continue unless
and until defendant obtains and complies with the
terms of a valid NPDES permit.
JA35
PARTIES
A. Plaintiffs
13. Plaintiff Hawai‘i Wildlife Fund is a Hawai‘i nonprofit corporation committed to the protection of
Hawai‘i’s native wildlife. Hawai‘i Wildlife Fund’s staff,
supporters, volunteers, and researchers intensively
use the West Maui waters, including, but not limited
to, the Kahekili Beach area, for snorkeling, swimming,
stand-up paddling, SCUBA diving, whale watching,
sea turtle surveys, and reef surveys. Hawai‘i Wildlife
Fund has been involved in an ongoing critically
endangered Hawksbill sea turtle recovery project in
the nearshore waters of Kahekili Beach, which includes
surveys to locate turtles and involves spending several
hours in the water per survey to swim line transects,
record data, and take photographs.
14. Hawai‘i Wildlife Fund has given testimony and
participated in past efforts to meet and work with
local, state, and federal officials to promote reuse of
wastewater from the LWRF, as well as to improve the
quality of the wastewater that is injected into the LWRF’s
wells and protect nearshore West Maui water quality.
15. Plaintiff Sierra Club, a non-profit organization
focused on raising awareness of environmental issues
and preserving the environment, files this complaint
by and through its Maui Group. The Sierra Club-Maui
Group is a membership organization consisting of
hundreds of members who reside on Maui. The group
organizes community clean ups and other outdoor
activities, and members of the Sierra Club-Maui
Group regularly use the coastal areas and nearshore
waters of West Maui, including, but not limited to, the
Kahekili Beach area, for recreational activities like
snorkeling, surfing, SCUBA diving, swimming, whale
JA36
watching, and stand-up paddling. The health of the
marine waters and the nearshore ecosystem is essential
for members of Sierra Club-Maui Group to participate
in these activities.
16. The Sierra Club-Maui Group has also been
involved in issues such as the preservation of coral
reefs, efforts to improve ocean water quality, and the
promotion of wastewater reuse on Maui. Over the past
several years, members of the Sierra Club-Maui Group
have presented testimony at public hearings and
written letters and emails to local, state, and federal
officials regarding the need to reduce nearshore
pollution from the injection wells at the LWRF and to
shift to greater reuse of wastewater from the facility.
17. Plaintiff Surfrider Foundation, a non-profit environmental organization dedicated to the protection of
waves, water and beaches, files this complaint by and
through its Maui Chapter. Surfrider Foundation-Maui
Chapter has over 2,800 members, including Maui residents and people who visit Maui regularly. Members
of Surfrider Foundation-Maui Chapter use the nearshore waters along the West Maui coast, including, but
not limited to, the Kahekili Beach area, for activities
such as snorkeling, swimming, stand-up paddling, and
SCUBA diving. A healthy nearshore ocean environment and good water quality are essential for Surfrider
Foundation-Maui Chapter members to participate in
these activities.
18. Over the past several years, members of the
Surfrider Foundation-Maui Chapter have contributed
testimony and participated in public hearings to promote greater wastewater reuse, reduce reliance on
injection wells, and improve the treatment of injection
wastewater at the LWRF to protect water quality on
Maui.
JA37
19. Plaintiff West Maui Preservation Association
(“WMPA”) is a Hawai‘i non-profit corporation founded
in 2004 that is dedicated to the preservation and
protection of the natural and cultural environment of
West Maui, including West Maui’s ocean waters.
20. WMPA’s board members and volunteers regularly use the coastal areas of West Maui, including, but
not limited to, the Kahekili Beach area, for such
activities as swimming, SCUBA diving, snorkeling, walking and jogging along the beach, holding gatherings at
the beach for birthday parties and various community
celebrations, and other recreation. WMPA’s ability to
use and enjoy the marine waters along the West Maui
coast depends on good water quality and a functioning
nearshore ecosystem.
21. WMPA has presented testimony at public
hearings and meetings over the past several years
regarding discharges from the injection wells at the
LWRF and nearshore water quality issues in West
Maui, including, but not limited to, the Kahekili Beach
area.
22. Defendant’s operation of the injection wells at
the LWRF in violation of the CWA and the resulting
discharges of pollutants into ocean waters have
adversely affected and continue to adversely affect the
environmental, aesthetic, recreational, scientific, and
educational interests of Hawai‘i Wildlife Fund, Sierra
Club-Maui Group, Surfrider Foundation and WMPA.
Unless the relief requested herein is granted, plaintiffs will continue to be irreparably injured by
defendant’s illegal discharges, as detailed below.
Plaintiffs bring this action on behalf of themselves and
their adversely affected members.
JA38
B. Defendant
23. Defendant County of Maui is sued as the owner
and operator of the LWRF. Plaintiffs are informed and
believe, and on the basis thereof allege, that, at all
times that the violations alleged in this complaint
have taken place and continue to take place, the
County has owned, operated, and managed the LWRF.
24. Defendant is a “municipality” as defined in
CWA section 502(4), 33 U.S.C. § 1362(4), and, thus,
is a “person” as defined in CWA section 502(5), id.
§ 1362(5).
STATUTORY BACKGROUND
The Clean Water Act
25. In 1972, Congress enacted the Federal Water
Pollution Control Act, known as the Clean Water Act,
in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33
U.S.C. § 1251(a). To further this central goal, section
301(a) of the CWA prohibits “the discharge of any
pollutant” into the nation’s waters, except when specifically authorized under the CWA. Id. § 1311(a).
26. The CWA defines the term “pollutant” broadly
to include “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.” Id. § 1362(6).
27. The CWA specifies that “navigable waters”
include “waters of the United States, including the
territorial seas.” Id. § 1362(7).
28. The CWA defines “point source” as “any discernible, confined and discrete conveyance, including
JA39
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.” Id. § 1362(14).
29. Section 402(a) of the CWA, id. § 1342(a),
authorizes the issuance of NPDES permits to allow
point sources to discharge limited quantities of pollutants into surface waters, where appropriate. The
NPDES program is designed to protect the quality of
surface waters. Without an NPDES permit, a point
source may not discharge to waters of the United
States without being subject to enforcement action
and fines. Id. §§ 1311(a), 1319; 40 C.F.R. § 19.4.
30. The discharge of pollutants into subsurface
water with a hydrological connection to navigable
waters is subject to the CWA, including the NPDES
permitting requirements.
31. CWA section 402(b), 33 U.S.C. § 1342(b), gives
the EPA Administrator authority to allow a state to
administer its own NPDES program. In the state of
Hawai‘i, the EPA has delegated authority to DOH to
issue NPDES permits. Id.; 40 C.F.R. § 123.24. A stateissued NDPES permit can impose effluent limits and
other provisions that are more stringent than the
federal requirements for an NPDES permit, but all
provisions must be at least as stringent as the federal
requirements. 40 C.F.R. § 123.25(a); H.A.R. § 11-5502(c).
32. Federal or state agencies administering the
NPDES program are required to ensure compliance
with a variety of CWA provisions – including state
water quality standards, which incorporate water
body use classifications, water quality criteria, and
JA40
anti-degradation requirements – and ultimately make
a determination whether a discharge permit will be
issued and, if so, the quantities of pollutants permitted
in that discharge.
33. The CWA requires that waters in each state be
assigned use classifications that determine what type
of uses a particular water body should be able to support. 40 C.F.R. § 131.10(a)-(b). Classifications of water
bodies must take into account uses such as “recreation
in and on the water” and “protection and propagation
of fish, shellfish and wildlife,” among others. Id.
§ 131.10(a). Administrative regulations determine
the use classifications of water bodies in Hawai‘i,
including those for marine waters. H.A.R. §§ 11-54-2
(classification of state waters); 11-54-3 (classification
of water uses).
34. Due to their location within the Hawaiian Islands
Humpback Whale National Marine Sanctuary (“the
Sanctuary”), which was designated pursuant to the
National Marine Sanctuaries Act, 16 U.S.C. §§ 1431
et seq., the marine waters along the West Maui coast
near the LWRF are classified as marine class AA.
H.A.R. § 11-54-6(b)(2)(A)(x); see also 15 C.F.R. § 922.181.
Marine class AA waters are required to support the
following uses: “oceanographic research, the support
and propagation of shellfish and other marine life, conservation of coral reefs and wilderness areas, compatible
recreation, and aesthetic enjoyment.” H.A.R. § 11-543(c)(1)(B).
35. Hawai‘i regulations additionally classify waters
according to “marine bottom type,” and the West Maui
waters near the LWRF, including but not limited to
the Kahekili Beach area, are designated as marine
bottom type “reef flats and reef communities” and
are further designated “class I” because they include
JA41
reef flats and reef communities located within the
Sanctuary. Id. § 11-54-7(e)(2)(A)(i). The regulations
state that “[n]o action shall be undertaken which
would substantially risk damage, impairment, or
alteration of the biological characteristics of the areas
named herein.” Id. § 11-54-7(e)(3).
36. Along with establishing use classifications, states
establish water quality criteria designed to protect the
designated uses assigned to a particular body of water.
40 C.F.R. § 131.11(a). The criteria can be either narrative, which describe qualitative conditions, or numeric,
which set quantitative limits for certain pollutants. Id.
§ 131.11(b). In Hawai‘i, narrative criteria require that,
among other things, “[a]ll waters shall be free of substances attributable to domestic, industrial, or other
controllable sources of pollutants” and free of conditions like turbidity and “deleterious substances at
levels or in combinations sufficient to be toxic or
harmful to human, animal, plant, or aquatic life, or in
amounts sufficient to interfere with any beneficial use
of the water . . . . ” H.A.R. § 11-54-4(a)(4); see also id.
§§ 11-54-4(a)(3), 11-54-4(a)(5), 11-54-4(b)(2). Hawai‘i
has also established numeric criteria for a variety of
toxic pollutants, and for non-toxic pollutants including, but not limited to, nitrogen, ammonia nitrogen,
turbidity, phosphorous, and enterococcus bacteria.
Id. §§ 11-54-4(b)(3); 11-54-6(b)(3); 11-54-8(b)(1)-(3)
(specific enterococcus criteria for recreational areas).
37. In addition to narrative and numeric criteria,
“ocean discharge criteria” must be applied when establishing NPDES permit limits for discharges into the
territorial sea or ocean. 33 U.S.C. § 1343(a). Pursuant
to federal regulations, the agency drafting an NPDES
permit must determine “whether a discharge will cause
unreasonable degradation of the marine environment”
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based on a number of factors, including “[t]he quantities, composition and potential for bioaccumulation or
persistence of the pollutants to be discharged,” “[t]he
composition and vulnerability of the biological communities which may be exposed to such pollutants,”
and “[t]he existence of special aquatic sites including
. . . marine sanctuaries and refuges . . . and coral reefs.”
40 C.F.R. § 125.122(a)(1), (3), (5). Agencies issuing
NPDES permits for discharges into the ocean must
ensure that any discharges will not unreasonably
degrade the marine environment or, in situations
where the director does not have sufficient information to make that determination, must require that
the permittee comply with specified permit conditions
while the director gathers necessary information; otherwise, the permit cannot be issued. Id. § 125.123(a)-(d).
38. The CWA and implementing regulations also
set forth minimum requirements for states to establish an anti-degradation policy, which is intended to
protect waters from activities that could lower water
quality. Id. § 131.12(a). Hawai‘i’s anti-degradation
regulations require that, at a minimum, “[e]xisting
uses and the level of water quality necessary to protect
the existing uses shall be maintained and protected.”
H.A.R. § 11-54-1.1(a).
39. In Hawai‘i, “[no] person, including any public
body, shall discharge any water pollutant into state
waters, or cause or allow any water pollutant to enter
state waters” except in compliance with the state’s
water pollution regulations. H.R.S. § 342D-50(a); see
also H.A.R. § 11-55-03. DOH has promulgated procedural requirements to apply for and obtain an NPDES
permit in Hawai‘i. H.A.R. §§ 11-55-04 to -15. DOH is
charged with assessing applications for NPDES permits and determining the limits in NPDES permits
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based on, among other things, the nature of the
discharge from the facility and the state water quality
standards in the receiving water body. Id. § 11-55-15.
“It is the public policy of [the State of Hawai‘i] . . . [t]o
provide that no waste be discharged into any state
waters without first being given the degree of treatment necessary to protect the legitimate beneficial
uses of the waters.” Id. § 11-55-02(a)(3).
40. DOH has established general NPDES permits,
but only facilities that fall within one of the established general permit categories are allowed to claim
coverage under a general permit. Id. § 11-55-34.02(b)
(setting forth eleven categories of facilities that qualify
for general NPDES permitting). All other facilities
that discharge or propose to discharge must apply for
an individual NPDES permit and must provide specific information about the facility and the discharge
in the application. 40 C.F.R. § 122.21(a), (f), (j) (specific
application requirements for new and existing publicly
owned treatment works); H.A.R. § 11-55-04(a)-(c).
Under state law, a publicly owned treatment works
facility, like the LWRF, does not fall within one of the
designated categories for a general NPDES permit and
must obtain an individual NPDES permit.
41. Facilities proposing to discharge generally must
submit an application for an NPDES permit at least
180 days prior to the date when the discharge is
scheduled to commence. 40 C.F.R. § 122.21(c)(1);
H.A.R. § 11-55-04(a)(1).
42. In Hawai‘i, state regulations create a mechanism for DOH to impose strict monitoring and reporting
requirements on NPDES permittees to ensure compliance with the permit’s discharge limits and conditions.
H.A.R. §§ 11-55-28 to -31.
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BACKGROUND FACTS
43. At all relevant times, defendant has owned and
operated the LWRF in Lahaina, Maui, Hawai‘i. The
focus of defendant’s activities at the LWRF is the
treatment, partial reuse, and disposal of wastewater.
The LWRF currently uses four injection wells for the
disposal of wastewater. Plaintiffs allege on information
and belief that the LWRF first began discharging
wastewater into injection wells 1 and 2 in May 1982,
began additional discharges into injection wells 3 and
4 in 1985, and has continued discharging into some or
all of the four injection wells on a daily basis from 1985
up to the present.
44. Plaintiffs allege on information and belief
that defendant’s wastewater activities at LWRF
currently involve the injection of 3-5 million gallons of
wastewater per day into some or all of the four
injection wells. This wastewater is discharged into
groundwater through a subsurface pipe at the bottom
of the individual injection wells, where it flows with
the groundwater out to the ocean.
45. Even before the LWRF began operating, the
County was aware that injected wastewater would
discharge into the ocean through groundwater. The
County acknowledged this fact in 1973 in hearings on
the environmental impact statement for the LWRF
project, before the facility or any of the injection wells
were constructed. The County has further acknowledged this since the LWRF began operating, including,
but not limited to, in an environmental assessment the
County prepared for a proposed LWRF expansion in
1991, which stated:
Effluent from the Lahaina Wastewater Reclamation Facility currently is discharged via
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injection wells to fractures in the underlying
basalt. This effluent, via gravity and the
pressure from up-gradient groundwater, flows
toward the ocean. Treatment plant effluent
contributes various constituents, including
but not limited to, suspended solids, dissolved
oxygen, and nutrients such as nitrogen and
phosphorous to the ocean.
46. Two recent scientific studies, one conducted by the
University of Hawai‘i at Mānoa (“UH study”) and one
conducted by the U.S. Geological Survey (“USGS study”)
in cooperation with DOH, have likewise concluded
that effluent from the LWRF is discharging pollutants
into the ocean.
47. To determine the presence of wastewater from
the LWRF in nearshore waters, researchers who
conducted the UH study surveyed species of algae
around the entire coast of Maui in the summer of 2007
to examine the levels of δ15N in algal tissue.1 The
surveys confirmed elevated δ15N signatures in algae
growing in nearshore marine waters slightly to the
south of the LWRF.
48. As a result of the detection of high levels of δ15N
in the algae, starting in January 2009 and continuing
for a five-month period thereafter, the UH researchers
deployed algae samples in suspended plastic cages at
thirty-two different sites in marine waters between
1
“δ15N” refers to a nitrogen isotope ratio that is used to
distinguish nitrogen derived from wastewater from nitrogen that
is naturally-occurring or from fertilizer. Naturally-occurring
nitrogen and nitrogen from fertilizer have low δ15N signatures,
while wastewater has notably higher signatures, especially when
the facility handling the wastewater employs biological nitrogen
removal, as the LWRF does.
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the area directly offshore of the LWRF down to the
southern edge of Kahekili Beach Park, ultimately
taking 344 algae samples.2 The goal was to determine
the nitrogen ratios in the deployed samples to verify
the uptake of wastewater-derived nitrogen from the
LWRF.
49. The study concluded that samples suspended
over freshwater seeps discharging from the ocean floor
offshore of Kahekili Beach “drastically” increased in
δ15N signature over the sampling period and additionally found that there were significant increases in δ15N
signatures at the sampling sites nearest to shore,
demonstrating the presence of nitrogen from wastewater
originating at the LWRF. The δ15N values in the algae
samples suspended over the freshwater seeps are the
highest ever reported in the world.
50. The UH researchers observed nuisance algal
blooms at and around many of the sampling sites
offshore of Kahekili Beach and, based on the spatial
distribution of the sampling locations and the analysis
of the δ15N content in the algae, concluded that “the
injected effluent from the [LWRF] is continuously
flowing through the reef at Kahekili and then subsequently flows to the south.”
51. Like the UH study, the USGS study evaluated
whether wastewater from the LWRF is present in the
nearshore waters of the Kahekili Beach Park area. It
found that “[m]unicipal wastewater injection plumes
were successfully detected in the ocean by nearshore
wading surveys at . . . Lahaina, Maui.”
2
The researchers used Ulva fasciata for the sampling, a type
of algae the researchers had observed forming nuisance algal
blooms underwater in the Kahekili Beach area.
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52. The USGS study sampled for several wastewater
tracers – including the pharmaceuticals carbamazepine and sulfamethoxazole, tribromomethane, two
musk fragrances, a fire retardant, and a plasticizer
compound – and found that they persisted through the
waste treatment process at the LWRF, migrated
through the subsurface aquifer after injection, and
were discharged into marine waters offshore of
Kahekili Beach Park. The USGS study tested for
“multiple inherent wastewater tracers” to ensure that
the results it obtained were conclusive evidence of the
presence of LWRF wastewater in nearshore waters.
53. Like the UH study, the USGS study found
elevated levels of δ15N in algae sampled in the same
area, which provided further evidence of the presence
of LWRF wastewater. Water samples taken during the
course of the USGS study confirmed that “the effluent
plume[] [from the LWRF] constitute[s] large nutrient
fluxes to the nearshore environment” in the form of
nitrogen and phosphorous.
54. The illegal discharges of pollutants from the
LWRF’s injection wells have deteriorated nearshore
ocean water quality and harmed the fragile ecosystem.
Excess input of nutrients like nitrogen and phosphorus accelerate the growth of Hypnea musciformis,
Acanthophora spicifera, and Ulva fasciata, nuisance
algae that form harmful blooms in West Maui marine
waters, including those in the Kahekili Beach area.
55. The detrimental effects of nuisance algal growth
on coral reefs in West Maui are well-documented.
Algae can smother reefs by growing in dense thickets
on top of them, blocking coral photosynthesis and
impeding the growth of new corals by preventing
settlement of coral larvae on the reef. Algae can also
serve as hosts to harmful microbial pathogens that
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cause coral illness and death. By increasing the
survival and dispersal of nuisance algae, nutrient
inputs from the LWRF have contributed to the
dramatic decline in coral reef cover in the Kahekili
Beach area, harming the area’s ecosystem.
56. The Hawai‘i Department of Land and Natural
Resources, Division of Aquatic Resources (“DAR”) has
voiced “very serious concerns” about the effects of
wastewater injection at the LWRF on the health of
coral reefs in the area. In a 2008 letter to the EPA,
DAR highlighted the clear correlation “between
wastewater injection [at the LWRF], decreasing coral
reef cover, and increased problems with invasive algae”
in the waters offshore of Kahekili Beach Park, noting:
evidence we have collected . . . indicates reefs
immediately offshore of the LWRF are experiencing substantial degradation. Over a little
more than a decade, nearly half of the coral
cover on [the reefs offshore of Kahekili Beach]
has disappeared . . . Along with the evidence
of coral reef declines, we are also finding
periodic problems with invasive algal blooms,
and increased bio-erosion from filter feeding
invertebrates. All of these factors suggest
that this reef is being impacted by chronic
exposure to elevated nutrients . . . recent
scientific studies have provided evidence that
the injection well plumes are percolating up
into the near-shore waters where the reef
degradation is occurring.
57. The EPA recently stated that “[i]nformation . . .
indicates that the effluent plume [from the LWRF]
travels with ground water to the coastal water and
contributes to nitrogen loading in the near coastal
environment.” The EPA additionally noted that
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“[e]vidence has shown that nitrogen is a nutrient for
algae growth in the coral reef environment and can be
detrimental to the near coastal environment.”
58. In late July 2011, EPA began conducting a
tracer dye study at the injection wells to obtain further
information about the path that wastewater and other
pollutants injected at the LWRF take to the ocean.
Large quantities of tracer dye were injected into the
wells at the LWRF, and researchers from EPA and UH
began monitoring the nearshore waters, including the
freshwater seeps, offshore of Kahekili Beach for dye.
In late October 2011, the researchers began detecting
dye flowing from freshwater seeps in the ocean floor
offshore of Kahekili Beach, with dramatically increasing amounts of dye detected through the time this
complaint was filed. The dye study further confirms
the ongoing hydrological connection between the
LWRF’s injection wells and the ocean.
59. As discussed above, West Maui’s ocean waters,
including the waters offshore of Kahekili Beach
Park, are part of the Hawaiian Islands Humpback
Whale National Marine Sanctuary designated by the
National Marine Sanctuaries Act. The Sanctuary was
designated to protect humpback whales and their
habitat, which necessitates maintaining a healthy
marine ecosystem and good water quality within the
Sanctuary. 15 C.F.R. §§ 922.180(a), 922.184(a)(5).
60. Due to their location within the Sanctuary, the
ocean waters offshore of the LWRF are designated by
DOH as marine class AA waters, with protected uses
including “oceanographic research, the support and
propagation of shellfish and other marine life, conservation of coral reefs and wilderness areas, compatible
recreation, and aesthetic enjoyment.” H.A.R. § 11-543(c)(1)(B). The submerged lands offshore of the LWRF
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are classified as marine bottom type “reef flats and
reef communities” and are designated as class I, also
because they are located within the Sanctuary. Id.
§ 11-54-7(e)(2)(A)(i). The discharge of pollutants from
the LWRF into these waters without an NPDES
permit harms these protected uses.
61. Despite knowing for decades that the LWRF’s
injection wells discharge to nearshore West Maui
waters and mounting scientific evidence of the harm
those discharges cause to fragile marine ecosystems,
the County has never applied for, much less obtained
and complied with, an NPDES permit to control its
illegal discharges. Instead, the County continues to
pass off the environmental and social costs of the
discharges to the public.
62. These fragile marine waters and coral reefs,
including, but not limited to, those in the Kahekili
Beach area, will continue to be degraded by the
continuous discharges from the LWRF’s injection
wells unless and until the County is compelled to
secure, and comply with the terms of, an NPDES
permit, as required by the Clean Water Act.
CLAIM FOR RELIEF
(Discharges Without An NPDES Permit)
63. Plaintiffs reallege and incorporate by reference
each and every allegation contained in paragraphs 1
through 62 of this complaint.
64. Defendant has violated and is violating section
301(a) of the CWA, 33 U.S.C. § 1311(a), and H.R.S.
§ 342D-50(a), which prohibit discharges of pollutants
without an NPDES permit, by allowing continuous
discharges of wastewater and other pollutants from its
injection wells at the LWRF through hydrologically
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connected groundwater into waters of the United
States. Defendant is subject to civil penalties under
the CWA section 309(d), 33 U.S.C. § 1319(d), of up to
$32,500 per day for each violation occurring through
January 12, 2009, and $37,500 per day for every
violation occurring thereafter. 40 C.F.R. § 19.4, tbl. 1.
65. Defendant’s violations of the above-listed statutes began prior to 2006, and continue up to the
present. These violations will continue until defendant
obtains and complies with an NPDES permit for its
discharges. 33 U.S.C. §1311(a); id. § 1342.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully request that
the Court:
1. Enter a declaratory judgment that defendant has
violated and is violating the CWA by discharging
wastewater and other pollutants from its injection
wells at the LWRF through hydrologically connected
groundwater into waters of the United States in the
absence of an NPDES permit;
2. Issue appropriate injunctive relief requiring
defendant immediately to apply for and comply with
the terms of an NPDES permit for the injection wells
at the LWRF to prevent further illegal discharges of
pollutants;
3. Impose civil penalties for defendant’s illegal,
unpermitted discharges from the injection wells at the
LWRF in the amount of $32,500 per day for each
violation occurring through January 12, 2009, and
$37,500 per day for every violation occurring thereafter, through the date of judgment herein, pursuant
to 33 U.S.C. § 1319(d) and 40 C.F.R. § 19.4, tbl. 1;
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4. Retain continuing jurisdiction to review defendant’s compliance with all judgments entered herein;
5. Issue such additional judicial determinations and
orders that are necessary to effectuate the foregoing
requests for relief;
6. Award plaintiffs the costs of this litigation, including reasonable attorney and expert witness fees,
pursuant to CWA section 505(d), 33 U.S.C. § 1365(d);
and
7. Issue such other and further relief as the Court
deems just and appropriate.
DATED: Honolulu, Hawai‘i, August 9, 2012.
EARTHJUSTICE
David L. Henkin
Caroline C. Ishida
223 S. King Street, Suite 400
Honolulu, Hawai‘i 96813
/s/ Caroline C. Ishida
By: CAROLINE C. ISHIDA
Attorneys for Plaintiffs
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DEPARTMENT OF THE CORPORATION
COUNSEL 205
PATRICK K. WONG
5878
Corporation Counsel
JANE E. LOVELL
7551
RICHELLE M. THOMSON 8965
THOMAS W. KOLBE
7679
Deputies Corporation Counsel
County of Maui
200 South High Street
Wailuku, Maui, Hawaii 96793
Telephone No. (808) 270-7740
jane.lovell@co.maui.hi.us
Attorneys for Defendant
COUNTY OF MAUI
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
————
Civil No. CV 12-00198 SOM BMK
————
HAWAI‘I WILDLIFE FUND, a Hawai‘i non-profit
corporation, SIERRA CLUB-MAUI GROUP, a non-profit
corporation, SURFRIDER FOUNDATION, a non-profit
corporation, and WEST MAUI PRESERVATION
ASSOCIATION, a Hawai‘i non-profit corporation,
vs.
Plaintiffs,
COUNTY OF MAUI,
Defendant.
————
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DEFENDANT COUNTY OF MAUI’S ANSWER TO
FIRST AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
FILED ON AUGUST 9, 2012; DEMAND FOR JURY
TRIAL; CERTIFICATE OF SERVICE
————
Trial Date: None Set
————
DEFENDANT COUNTY OF MAUI’S ANSWER
TO FIRST AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
FILED ON AUGUST 9, 2012
Defendant COUNTY OF MAUI (“County”), by and
through its attorneys PATRICK K. WONG, Corporation
Counsel, and JANE E. LOVELL, Deputy Corporation
Counsel, hereby answers the First Amended Complaint
for Declaratory and Injunctive Relief filed by Plaintiffs
HAWAI‘I WILDLIFE FUND, a Hawai‘i non-profit
corporation, SIERRA CLUB-MAUI GROUP, a non-profit
corporation, SURFRIDER FOUNDATION, a nonprofit corporation, and WEST MAUI PRESERVATION
ASSOCIATION, a Hawai‘i non-profit corporation on
August 9, 2012 (“Complaint”), as follows:
FIRST DEFENSE:
1. Plaintiffs’ Complaint, its single cause of action
and each of its claims for relief, fails to state a claim
against County upon which relief may be granted.
SECOND DEFENSE:
2. In answering paragraph 1 of the Complaint,
County admits that the Complaint alleges violations
under the Federal Water Pollution Control Act, also
known as the Clean Water Act or “CWA”. County
denies that it is violating, or has violated the CWA,
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and denies that it discharges or has discharged into
the waters of West Maui wastewater from injection
wells operated by the County. County admits that
it operates the Lahaina Wastewater Reclamation
Facility or “LWRF” and that it has done so since prior
to 2006. County admits that it does not have an
NPDES permit for the LWRF, but denies that it is
legally required to have one. County denies that
“sewage” is injected into the injection wells, and
affirmatively alleges that the treated wastewater
injected into the wells meets the standards, limitations, and conditions of state and federal Underground
Injection Control (“UIC”) permits. County denies all
remaining allegations contained in paragraph 1.
3. County denies the allegations of paragraph 2 of
the Complaint.
4. In answering paragraph 3 of the Complaint,
County admits the allegations contained in the last
sentence thereof. Except as expressly so admitted,
County denies all remaining allegations of paragraph
3.
5. Paragraph 4 of the Complaint consists of legal
conclusions to which no responsive pleading is required.
To the extent that a response is deemed to be required,
County affirmatively alleges that paragraph 4 is not a
complete of accurate recitation of the law applicable to
this action, and on that basis, denies the same.
6. In answering paragraph 5 of the Complaint,
County denies that it has “failed” to obtain an NPDES
permit. County admits that it has not applied for or
obtained such a permit and therefore, cannot “comply”
with the same, but affirmatively alleges that it has
applied for a CWA § 401 Water Quality Certification
which is a prerequisite for a federal NPDES permit.
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County denies that its injection wells discharge from
the LWRF into ocean waters via groundwater. County
denies that it discharges wastewater and “additional
pollutants” from the LWRF into ocean waters via
groundwater and denies that County is in violation of
the CWA. County denies all remaining allegations of
paragraph 5.
7. In answering paragraph 6 of the Complaint,
County admits that the paragraph describes the relief
Plaintiffs are seeking, but denies that there is any
legal basis for granting the relief sought. Except as
expressly so admitted, County denies the remainder of
the allegations in paragraph 6.
8. In answering paragraph 7 of the Complaint,
County admits that paragraph 7 describes the alleged
jurisdictional basis of Plaintiffs’ Complaint. County
need not admit or deny the legal conclusion that
this Court has jurisdiction over the claims asserted in
the Complaint pursuant to the statutes cited in
paragraph 7. County denies all remaining allegations
paragraph 7.
9. In answering the paragraph 8 of the Complaint,
County admits that Plaintiffs gave written notice of
their intention to sue to the County, to the Department
of Health (“DOH”), to the U.S. Environmental Protection Agency “EPA” and to EPA Region IX. County
denies that it has committed or is committing any
violations as alleged in paragraph 8 or elsewhere in
the Complaint. County denies all remaining allegations in paragraph 8.
10. In answering paragraph 9 of the Complaint,
County admits the first sentence, and admits that
neither the EPA not DOH has commenced or is diligently prosecuting a civil or criminal action in a court
JA57
of the United States or a State to require the County
to obtain an NPDES permit, but affirmatively alleges
that the EPA has commenced and concluded an
administrative action which includes a requirement
that the County apply for a CWA § 401 Water Quality
Certification and also requires costly upgrades to the
LWRF to address concerns raised by Plaintiffs. Except
as expressly so admitted, County denies all remaining
allegations in paragraph 9.
11. In answering paragraph 10 of the Complaint,
County admits that venue is proper in this District.
Except as expressly so admitted, County denies all
remaining allegations in paragraph 10.
12. In answering paragraph 11 of the Complaint,
County admits that it has not obtained, and therefore
cannot comply with the terms of, an NPDES permit for
its LWRF. Except as expressly so admitted, County
denies all remaining allegations in paragraph 11.
13. County denies the allegations of paragraph 12
of the Complaint.
14. In answering paragraphs 13 through 21,
inclusive, of the Complaint, County lacks sufficient
information to form a belief as to the truth or falsity of
such allegations, and on that basis, denies the same.
15. In answering paragraph 22 of the Complaint,
County admits that Plaintiffs purport to bring the action
on behalf of themselves and their members. Except as
expressly so admitted, County denies all remaining
allegations in paragraph 22 of the Complaint.
16. In answering paragraph 23 of the Complaint,
County admits that it is the owner and operator of the
LWRF, and that Plaintiffs are suing the County on
that basis. County admits that at all times relevant to
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this Complaint, it has owned, operated, and managed
the LWRF. Except as expressly so admitted, County
denies all remaining allegations in paragraph 23 of the
Complaint.
17. Paragraph 24 of the Complaint consists entirely
of legal conclusions to which no responsive pleading is
required. To the extent that a response is deemed to
be required, County affirmatively alleges that paragraph 24 is not a complete or accurate recitation of the
law applicable to the action, and therefore denies the
allegations of paragraph 24 on that basis.
18. In answering paragraphs 25 through 29,
inclusive, of the Complaint, County admits that they
quote from portions of the CWA, but denies that these
paragraphs are a complete or accurate recitation of the
law applicable to this action. To the extent that a
response to the legal conclusions in paragraphs 25
through 29, inclusive, is deemed to be required, County
denies the allegations of paragraphs 25 through 29,
inclusive, on that basis.
19. The allegations in paragraph 30 of the Complaint consist of legal conclusions to which no responsive
pleading is required. To the extent that a response is
deemed to be required, County affirmatively alleges
that paragraph 30 is not a complete or accurate
recitation of the law applicable to the action, and
therefore denies the allegations of paragraph 30 on
that basis.
20. Paragraphs 31 through 42, inclusive, of the
Complaint consist entirely of legal conclusions to
which no responsive pleading is required. To the extent
that any responsive pleading to the legal conclusions
stated in paragraphs 31 through 42, inclusive, is
required, County admits that they quote from portions
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of the CWA, the Code of Federal Regulations, and the
Hawaii Administrative Rules, but denies that these
paragraphs are a complete or accurate recitation of the
law applicable to this action.
21. In answering paragraph 43 of the Complaint,
County admits the first sentence. The County denies
the second sentence of the paragraph, and affirmatively alleges that the focus of defendant’s activities at
the LWRF is protection of the public health and the
environment. County admits that there are four
injection wells currently being used at the LWRF for
disposal of treated wastewater. County admits the last
sentence of paragraph 43. County denies the remaining allegations of paragraph 43.
22. In answering paragraph 44 of the Complaint,
County admits that on average, it disposes of 3 to 5
million gallons of treated wastewater per day into
LWRF’s injection wells. County denies the remainder
of the allegations in the first sentence of paragraph 44.
County denies the second sentence of paragraph 44
and all remaining allegations in paragraph 44.
23. In answering paragraph 45 of the Complaint,
County denies the first two sentences of the paragraph
on the basis that the Complaint misstates the 1973
testimony referred to in paragraph 45. County denies
that portion of the third sentence beginning with “The”
and ending with “but not limited to.” County admits
that paragraph 45 quotes from a portion of an environmental assessment prepared for a proposed
expansion of the LWRF in 1991, but denies that the
quoted passage completely or accurately describes
the operation of the injection wells at the LWRF.
Except as expressly so admitted, County denies the
remainder of the allegations in paragraph 45.
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24. In answering paragraph 46 through 53, inclusive, of the Complaint, County denies that these
paragraphs accurately or completely recite the findings or conclusions of the studies mentioned in these
paragraphs, and on that basis, denies the same.
25. County denies paragraph 54 of the Complaint.
26. In answering paragraph 55 of the Complaint,
County lacks sufficient information and belief as to the
allegations in the first three sentences of paragraph
55, and on that basis, denies the same. County denies
the allegations contained in the last sentence of
paragraph 55 and denies all remaining allegations in
paragraph 55.
27. In answering paragraphs 56 and 57 of the
Complaint, County lacks sufficient information and
belief as to the allegations in these paragraphs, and on
that basis, denies the same.
28. In answering paragraph 58 of the Complaint,
County admits the portion of the first sentence
beginning with the word “In” and ending with the
word “wells.” County denies the remainder of the first
sentence on the ground that it is an inaccurate, incomplete, and argumentative description of the purpose of
the tracer dye study. County admits that large
quantities of one kind of tracer dye were added to two
wells, and a large quantity of a different kind of tracer
dye was added to a third well. County admits that
researchers from EPA and UH began monitoring the
nearshore waters, including freshwater seeps, offshore
of Kahekili Beach for dye. County denies the allegations in the sentence starting “In late October” on the
ground that it is an inaccurate, incomplete, and
argumentative description of the researchers’ findings.
County denies the allegations in the last sentence of
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paragraph 58, and all remaining allegations of paragraph 58 on information and belief, or lack thereof.
29. In answering paragraph 59 of the Complaint,
County admits the first sentence of the paragraph, and
that portion of the second sentence beginning with the
words “The Sanctuary” and ending with the word
“habitat.” The remainder of the second sentence of
paragraph 59 consists of a legal conclusion to which no
responsive pleading is necessary. To the extent that a
responsive pleading is deemed necessary, County
denies all remaining allegations in paragraph 59.
30. In answering paragraph 60 of the Complaint,
the first two sentences of the paragraph consist of legal
conclusions to which no responsive pleading is required.
To the extent that a response is deemed to be required,
County affirmatively alleges that the first two sentences of paragraph 60 are not a complete or accurate
recitation of the law applicable to the action, and
therefore denies the allegations in the first two sentences of paragraph 60 on that basis. County denies
the last sentence of paragraph 60.
31. In answering paragraph 61 of the Complaint,
County admits that it has not applied for or obtained
an NPDES permit, and therefore, cannot “comply”
with the same. Except as expressly so admitted, County
denies the remaining allegations in paragraph 61.
32. County denies the allegations contained in
paragraph 62 of the Complaint.
33. In answering paragraph 63 of the Complaint,
County restates its admissions, denials, and responses
stated in paragraphs 1 through 62, above.
34. County denies the allegations contained in
paragraphs 64 and 65 of the Complaint.
JA62
35. County denies all remaining allegations and
legal conclusions in the Complaint not expressly
admitted in paragraphs 1 through 34, inclusive of this
Answer. Should any allegation in the Complaint be
deemed to have not been addressed in paragraphs 1
through 34, inclusive of this Answer, County hereby
denies the same.
THIRD DEFENSE:
36. This Court lacks jurisdiction because the case is
not ripe.
FOURTH DEFENSE:
37. This Court lacks jurisdiction because DOH and
EPA have primary jurisdiction over the claims alleged
in the Complaint.
FIFTH DEFENSE:
38. Plaintiffs lack standing to sue.
SIXTH DEFENSE:
39. The Complaint, its Claim for Relief, and its
Prayer for Relief fail to state a claim upon which
injunctive or declaratory relief may be granted.
SEVENTH DEFENSE:
40. Plaintiffs’ claims are barred due to their failure
to join indispensable parties.
EIGHTH DEFENSE:
41. Plaintiffs’ claims are barred by the applicable
statute of limitations and/or by operation of the time
limitations imposed through applicable case law.
JA63
NINTH DEFENSE:
42. Imposition of penalties or fines in this action is
barred because the acts or omissions of which
Plaintiffs complain did not violate clearly settled law.
TENTH DEFENSE:
43. Plaintiffs are barred from maintaining this action
due to the EPA’s diligent prosecution of the County.
ELEVENTH DEFENSE:
44. At all times applicable, County’s LWRF has
fully complied with the standards, limitations, and
conditions of federal and state UIC permits, and
therefore, County was privileged to dispose of its
treated wastewater through duly- permitted injection
wells in accordance with the standards, limitations,
and conditions of the County’s federal and state UIC
permits.
TWELFTH DEFENSE:
45. The acts and/or omissions of others, not including the County, or forces of nature beyond County’s
control, were and are the sole or contributing cause of
the harms alleged in the Complaint.
THIRTEENTH DEFENSE:
46. Plaintiffs are barred from recovery against County
through the absence of legal or proximate cause.
FOURTEENTH DEFENSE:
47. This Court has the discretion to decline to exercise jurisdiction over Plaintiffs’ claims for declaratory
relief.
JA64
FIFTEENTH DEFENSE:
48. Plaintiffs’ claims are barred by the doctrines of
collateral estoppel and/or res judicata.
SIXTEENTH DEFENSE:
49. It is impossible for County to “obtain,” “secure”
or “comply with” a permit that neither EPA nor DOH
has been willing to issue to date.
SEVENTEENTH DEFENSE:
50. County has applied for a CWA § 401 Water
Quality Certification, which is a legal prerequisite
before EPA or DOH will consider whether an NPDES
permit for the LWRF is required.
EIGHTEENTH DEFENSE:
51. County intends to rely upon any and all common
law, statutory, and constitutional privileges and immunities available to it as a defense against Plaintiffs’
claims.
NINETEENTH DEFENSE:
52. County gives notice that it intends to rely upon
any other matter constituting an avoidance or affirmative defense as set forth in Rule 8(c) of the Federal
Rules of Civil Procedure, and that it intends to seek
leave to amend its answer to specifically allege those
defenses of which it may become aware during the
course of discovery or at trial of this matter.
WHEREFORE, the County prays for the following
relief:
A. That Plaintiffs’ First Amended Complaint be
dismissed in its entirety;
B. That no fines or penalties be assessed;
JA65
C. That no injunctive relief be ordered;
D. That judgment be entered in County’ favor;
E. That County be awarded its reasonable attorneys’
fees and costs incurred in defending against Plaintiffs’
claims;
F. That County be granted such other and further
relief as is just and equitable in the premises.
DATED: Wailuku, Maui, Hawaii, August 23, 2012.
PATRICK K. WONG
Corporation Counsel
Attorneys for Defendant County of Maui
By /s/ Jane E. Lovell
JANE E. LOVELL
Deputy Corporation Counsel
JA66
This Page Intentionally Left Blank
JA77
PATRICK K. WONG (5878)
Corporation Counsel
RICHELLE M. THOMSON (8965)
Deputy Corporation Counsel
COUNTY OF MAUI
200 South High Street
Wailuku, Maui, Hawaii 96793
Phone: 808•270•7740
Email: Richelle.Thomson@co.maui.hi.us
COLLEEN P. DOYLE (7209)
HUNTON & WILLIAMS LLP
550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627
Phone: 213•532•2000
Fax: 213•532•2020
Email: doylec@hunton.com
Attorneys for Defendant
COUNTY OF MAUI
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
————
Civil Case No. 12-00198 SOM BMK
————
HAWAII WILDLIFE FUND, SIERRA CLUB – MAUI GROUP,
SURFRIDER FOUNDATION, AND WEST MAUI
PRESERVATION ASSOCIATION,
vs.
Plaintiffs,
COUNTY OF MAUI,
————
Defendant.
JA78
DEFENDANT COUNTY OF MAUI’S
RESPONSE TO PLAINTIFFS’ RULE 56.1
CONCISE STATEMENT
————
Hearing: May 12, 2014, 1:30 p.m.
Judge: Susan Oki Mollway
Trial Date: Not yet determined
————
Related to: Dkt No. 72, Plaintiffs’ Motion for
Partial Summary Judgment
————
Pursuant to Local Rule 56.1(b), the County of Maui
submits its Response to Plaintiffs’ Rule 56.1 Concise
Statement, * * *.
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
* * *
* * *
2. The LWRF currently Admit in part, Dispute
uses four injection wells in part. Four wells are
for the disposal of
currently used, but the
wastewater and other
County does not dispose
pollutants. Exh. 4: 2009 of “wastewater” or “other
USGS Study at iii, 68;
pollutants.” It injects R-1,
Exh. 11: Answer ¶¶ 21R-2, or R-3 water1
22; Exh. 26: 2012 NPDES (“reclaimed water”)
Permit Application at 4. under UIC permits
issued by Hawaii DOH
(“HDOH”) and US EPA.
Consent Decree (“CD”)
¶¶ 44, 47 (Ex. 26).
1
See Haw. Code R. § 11-62-3.
JA79
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
3. Each injection well
Admit as general lay
description, Dispute
consists of a long pipe
that extends approxiin any other respect.
mately 200 feet underInjection wells consist of
ground. Exh. 12: 1993
boreholes, containing
Injection Well Report at 7 solid steel casing diam& Fig. 2; Exh. 13: 2004
eter 20 inches and length
88 feet (Wells 1&2) or
Underground Injection
Control (“UIC”) Permit
108 feet (Wells 3&4),
Application at
followed by perforated
Attachment M.
steel casings (Wells 1&4)
or open hole (Wells 2&3)
extending to total depths
ranging from 180 to 255
feet below ground
surface. UIC Permit
Renewal at Attachment
M (Pl. Ex. 13); Ex. 26
4. Wastewater is
pumped to the top of
the well, where gravity
moves the water
down through the pipe,
discharging into the
groundwater below the
facility. Exh. 12: 1993
Injection Well Report at
4, Fig. 6 & App. B; Exh.
14: 2010 Section 401
Water Quality Certifica-
Admit in part, Dispute in
part. Reclaimed water
flows by gravity through
the injection wells into
the groundwater below
the LWRF. It is not
“pumped” to the top of
the well but flows by
gravity from the facility
to the wells, as indicated
in Pl. Ex. 16 at 7. Fig. 6
of Pl. Ex. 12 depicts the
JA80
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
tion Application at 2, 13; well during cleaning
Exh. 15: 2011 UIC
by air-lift pumping, not
Consent Decree ¶¶ 28-29; during normal operation.
Exh. 16: 1996 UIC
Permit at 7.
5. Defendant first began
discharging wastewater
into LWRF Injection
Wells 3 and 4 in 1985.
Exh. 11: Answer ¶ 21;
Exh. 17: First Amended
Complaint (Dkt. No. 36)
¶ 43.
Admit that County began
injecting reclaimed water
into Wells 3 and 4 in
1985, but dispute that it
“discharg[ed] wastewater.”
CD ¶¶ 44, 47 (Ex. 26).
6. Defendant has
continued discharging
into LWRF Injection
Wells 3 and 4 on a nearly
daily basis from 1985 to
the present. Exh. 11:
Answer ¶ 21; Exh. 17:
First Amended
Complaint ¶ 43.
Admit, to the extent that
“discharging” is taken to
mean “injecting
reclaimed water.” CD
¶¶ 44, 47 (Ex. 26).
* * *
* * *
10. The LWRF injection Admit in part, Dispute in
wells discharge
part. The injection wells
wastewater into the
inject reclaimed water
groundwater below the
into the groundwater
LWRF. Exh. 12: 1993
below the LWRF. CD
Injection Well Report at 4 ¶¶ 44, 47 (Ex. 26).
JA81
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
& App. B; Exh. 14: 2010
Section 401 Water
Quality Certification
Application at 2, 13; Exh.
15:2011 UIC Consent
Decree ¶¶ 28-29.
* * *
* * *
* * *
JA82
PATRICK K. WONG (5878)
Corporation Counsel
RICHELLE M. THOMSON (8965)
Deputy Corporation Counsel
COUNTY OF MAUI
200 South High Street
Wailuku, Maui, Hawaii 96793
Phone: 808•270•7740
Email: Richelle.Thomson@co.maui.hi.us
COLLEEN P. DOYLE (7209)
HUNTON & WILLIAMS LLP
550 South Hope Street, Suite 2000
Los Angeles, California 90071-2627
Phone: 213•532•2000
Fax: 213•532•2020
Email: doylec@hunton.com
Attorneys for Defendant
COUNTY OF MAUI
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
————
Civil Case No. 12-00198 SOM BMK
————
HAWAI’I WILDLIFE FUND, SIERRA CLUB – MAUI GROUP,
SURFRIDER FOUNDATION, AND WEST MAUI
PRESERVATION ASSOCIATION,
vs.
Plaintiffs,
COUNTY OF MAUI,
Defendant.
————
JA83
DEFENDANT COUNTY OF MAUI’S RESPONSE
TO PLAINTIFFS’ RULE 56.1 CONCISE
STATEMENT; DECLARATION OF
E. JOHN LIST, PH.D., P.E., EXHIBITS 1-10;
DECLARATION OF COLLEEN P. DOYLE,
EXHIBITS 11-17; REQUEST FOR JUDICIAL
NOTICE; AND CERTIFICATE OF SERVICE
————
Hearing: January 12, 2015, 9:45 a.m.
Judge: Susan Oki Mollway
Trial Date: April 7, 2015
————
Related to: Dkt No. 129, Plaintiffs’ 56.1
Concise Statement
————
JA84
Pursuant to Local Rule 56.1(b), the County of Maui
submits its Response to Plaintiffs’ Rule 56.1 Concise
Statement, * * *.
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
* * *
* * *
5. Defendant has discharged wastewater into
LWRF Injection Wells 1
and 2 on a nearly daily
basis from February 15,
2007 to the present.
Answer ¶ 21; First
Amended Complaint
¶ 43; Exh. 14: February
to December 2007
Injection Records; Exh.
15: 2008 Injection
Records; Exh. 16: 2009
Injection Records; Exh.
17: 2010 Injection
Records; Exh. 18: 2011
Injection Records; Exh.
19: 2012 Injection
Records; Exh. 21: Well 1
Injection Records, July
2012 to July 2014; Exh.
22: Well 2 Injection
Records, July 2012 to
July 2014
5. Undisputed that
effluent was injected into
all wells almost daily
between January 1, 2006
and Nov. 15, 2014.
Declaration of E. John
List (List Dec.), ¶ 37; Ex.
5-7; Plaintiffs’ MSJ, Ex.
14-21, 27-28.
* * *
* * *
JA85
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
8. LWRF Wells 1 and 2
8. Undisputed
discharge wastewater
into the groundwater
below the LWRF. 1993
Injection Well Report at 4
& App. B; Exh. 10: 2010
Section 401 Water
Quality Certification
Application at 2, 13; Exh.
11: 2011 UIC Consent
Decree ¶¶ 28-29.
9. The groundwater into 9. Undisputed.
which LWRF Injection
Wells 1 and 2 discharge
conveys wastewater to
the Pacific Ocean. Moran
Decl. ¶¶ 9-16, 27-30, 3538; Exh. 2: Tracer Dye
Study at 4-37, 4-90; Exh.
3: U.S. Geological Survey
(“USGS”) Report on
Groundwater Availability
in Lahaina District at 12,
17-19, 21, 24, 28, 33 &
Figs. 4 & 7; Exh. 7: 2009
USGS Study at iii, 14,
16, 65, 68 & Fig. 40; Exh.
22: 1973 Environmental
Impact Statement at 91;
Exh. 23: 1991 Environmental Assessment at
JA86
PLAINTIFFS’ FACTS
THE COUNTY’S
RESPONSE
6-2 to 6-3; Exh. 24:
3/10/10 Environmental
Protection Agency
(“EPA”) Letter at 2; Exh.
25: 11/6/08 UIC Hearing
Tr. at 8, 14; Exh. 26: EPA
Statement of Basis for
UIC Permit at 3, 5-6.
* * *
* * *
* * *
JA87
SUPREME COURT OF THE UNITED STATES
————
No. 18-260
————
COUNTY OF MAUI, HAWAII,
v.
Petitioner
HAWAII WILDLIFE FUND, ET AL.
————
ON PETITION FOR A WRIT OF CERTIORARI to
the United States Court of Appeals for the Ninth
Circuit, No. 15-17447.
ON CONSIDERATION of the petition for a writ
of certiorari herein to the United States Court of
Appeals for the Ninth Circuit.
IT IS ORDERED by this Court that the said
petition is granted limited to Question 1 presented by
the petition.
February 19, 2019
A true copy SCOTT S. HARRIS
Test:
Clerk of the Supreme Court of the United States
By
Deputy
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