Hawaii Wildlife Fund v. County of Maui

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HAWAI`I WILDLIFE FUND, a ) CIVIL NO. 12-00198 SOM/KJM Hawaii non-profit ) corporation; ) SIERRA CLUB-MAUI GROUP, a ) ORDER REGARDING COUNTER non-profit corporation; ) MOTIONS FOR SUMMARY JUDGMENT SURFRIDER FOUNDATION, a non- ) profit corporation; and ) WEST MAUI PRESERVATION ) ASSOCIATION, a Hawaii non- ) profit corporation, ) ) Plaintiffs, ) ) vs. ) ) COUNTY OF MAUI, ) ) Defendant. ) _____________________________ ) ORDER REGARDING COUNTER MOTIONS FOR SUMMARY JUDGMENT Plaintiffs Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation, and West Maui Preservation Association move for summary judgment, arguing that the undisputed evidence demonstrates that the County has violated the Clean Water Act by discharging effluent, without a National Pollutant Discharge Elimination System (“NPDES”) permit, at four injection wells at the Lahaina Wastewater Reclamation Facility (“LWRF”). Defendant County of Maui also moves for summary judgment, arguing that Plaintiffs lack admissible evidence of such a violation. In adjudicating these motions, this court is guided by the Supreme Court’s holding that the Clean Water Act requires an NPDES “permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” Hawaii Wildlife Fund, et al. v. County of Maui, 140 S. Ct. 1462, 1476 (2020). The Supreme Court provided examples of when there would be and when there would not be a “functional equivalent of a direct discharge,” explaining that time and distance are important: Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply. 140 S. Ct. at 1476. To provide guidance with respect to factual situations that fall between the two examples, the court stated: factors that may prove relevant (depending upon the circumstances of a particular case): (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity. Time and distance will be the most important factors in most cases, but not necessarily every case. Id., 140 S. Ct. at 1476–77. 2 There appears to be no dispute that LWRF is a “point source” or that the Pacific Ocean is a “navigable water.” See id. at 1478, Kavanaugh, J., concurring (“No one disputes that pollutants originated at Maui’s wastewater facility (a point source), and no one disputes that the pollutants ended up in the Pacific Ocean (a navigable water).”). The present motions therefore turn on whether the LWRF’s discharge of treated wastewater into its injection wells that then makes its way to the Pacific Ocean is the “functional equivalent of a direct discharge” from the LWRF into the Pacific Ocean. Id. To aid the court in deciding these motions, the parties shall file answers to the following questions, using 25 words or less for each answer, no later than June 9, 2021. If a party does not know or cannot provide the exact answer to a question, the party shall provide the most accurate answer it can in light of the record currently before the court. Answers should directly respond to the questions, rather than viewing the questions as inviting discussion of related matters. This court will hold the parties to their answers. In answering each question, the parties shall provide the title or name of material relied on, along with the ECF No. and the PageID # of evidence currently in the record that supports each answer. Parties are invited to provide record

citations to every piece of evidence in the record supporting any 3 fact. Parties shall not cite anything not currently in the record. Parties shall then attach a copy of the cited evidence with the record citation (existing ECF No. and PageID #) visible and legible under a corresponding tab (that is, not obscured at the top of the page). The record evidence shall be tabbed with the tab label corresponding to the question number. Only the relevant page(s) cited (preferably limited to two pages per citation) should be attached. A Word version of the attached questions will be emailed to the parties so that they may use such space as is necessary to provide record citations.

4 Answer in 25 words or Title of ECF No. and less material PageID # Transit time: What is the documented (in days) for wastewater move from LWRF 3 and 4 to Pacific Ocean? How long does take before than half of treated

into LWRF 3 and 4 ona day the Ocean? What is the time that takes for wastewater move from LWRF 1 and 2 to Pacific Ocean? How long does take before than half of treated

into LWRF 1 and 2 ona day the Ocean?

Jean E. Moran, opines that time required effluent from 1 and 2 to the ocean is to that Wells 3 and See Decl. of Moran, ECF No. PageID 10561. Is there in the indicating this opinion correct or

Distance

What is the distance treated flows Wells 1, 3, and 4 to the Ocean? What of wastewater the LWRF the minimum to reach Pacific Ocean? What is the

traveled at least half the wastewater from LWRF 1, 2, 3, and to the Pacific

What of wastewater the LWRF from springs North and Group Seeps? Is there any that more half of the from 3 and 4 at the (even if is a dispute how much than half)? What of wastewater the LWRF as diffuse in the North South Group areas? What of wastewater the LWRF within 1/2 of the North South Group areas? What of wastewater the LWRF within 3/4 (straight of the LWRF? percentage include any listed the response to

What of wastewater the LWRF within 1 mile (straight line) of LWRF'? What of wastewater the LWRF within 1.5 miles (straight line) the LWRF? What of wastewater the LWRF within 2 miles (straight line) the LWRF? Nature of the through the treated

is the nature the material which the wastewater from the to the Ocean?

Dilution or change of

To what extent the treated been as it from the to the Ocean? Leaving aside chemical occurring the injection themselves (e.g., by at the to what has the wastewater chemically as it from the to the Ocean? is the nature the change? Amount of entering Pacific Ocean: What is the of treated

the Ocean to the of treated leaving LWRF'?

What is the number of of treated from LWRF that every day the nearshore in and the North South Seep

Manner by or in which enters Pacific Ocean: the by or areas which the wastewater enters Pacific Ocean. Degree

its identity: the to which treated from LWREF emerging the Pacific has its identity.

Is there any that there elevated water near North and Seep compared the nearshore further and south of seeps? If is no is there in the indicating the elevated could been caused something other the treated finding way into the Ocean? Is there any that dye through a pipe the LWRF to Pacific Ocean take about minutes to go to the

Could surface and water at nearby account some of the detected the seeps?

Each party may no more than other issues only that discusses, the party’s must be in 25 words less per issue.

IT IS SO ORDERED. DATED: Honolulu, Hawaii, May 26, 2021.

gree pa 8 ey & % = yee ys Sr □ ar /s/ Susan Oki Mollway ee . Susan Oki Mollway ty alla United States District Judge

Hawaii Wildlife Fund, et al. v. County of Maui; Civil No. 12-00198 SOM/KJM; ORDER REGARDING COUNTER MOTIONS FOR SUMMARY JUDGMENT