Hawaii Wildlife Fund et al v. County of Maui

Filing 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 denie s 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 determina tion 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, )CERTIFICATE OF SERVICEParticipants regist ered 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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAI`I WILDLIFE FUND, a
Hawaii non-profit
corporation;
SIERRA CLUB-MAUI GROUP, a
non-profit corporation;
SURFRIDER FOUNDATION, a nonprofit corporation; and
WEST MAUI PRESERVATION
ASSOCIATION, a Hawaii nonprofit corporation,

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)
)
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Plaintiffs,
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)
vs.
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COUNTY OF MAUI,
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Defendant.
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_____________________________ )

CIVIL NO. 12-00198 SOM/BMK
ORDER DENYING DEFENDANT'S
MOTION FOR STAY AND GRANTING
PLAINTIFFS' MOTION FOR
PARTIAL SUMMARY JUDGMENT

ORDER DENYING DEFENDANT’S MOTION FOR STAY AND
GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiffs Hawaii Wildlife Fund, Sierra Club, Surfrider

Foundation, and West Maui Preservation Association move for
partial summary judgment against Defendant County of Maui,
arguing that the undisputed evidence demonstrates that the County
has violated the Clean Water Act by discharging effluent, without
a National Pollutant Discharge Elimination System (“NPDES”)
permit, at four injection wells at the Lahaina Wastewater
Reclamation Facility (“LWRF”).

Plaintiffs contend that the

wastewater eventually finds its way into the ocean on Maui’s west
shore.
The County brings its own motion, arguing that, given
the County’s application for an NPDES permit, the court should
dismiss or stay this case to give Hawaii’s Department of Health
and the Environmental Protection Agency an opportunity to
consider the need for a permit in the first instance.
The County concedes, and the undisputed evidence shows,
that pollutant discharged at the two largest wells at the LWRF is
migrating into the ocean.

The court has not been given any firm

date for a final decision on the County’s NPDES permit
application.

The court therefore denies the County’s motion for

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stay or dismissal and grants Plaintiffs’ motion for partial
summary judgment.
II.

BACKGROUND.
The County of Maui operates the LWRF, a wastewater

treatment facility approximately three miles north of the town of
Lahaina on the island of Maui.
at ES-21, ECF No. 73-10.

See Tracer Dye Study Final Report

The facility receives approximately

four million gallons per day of sewage from a collection system
serving approximately 40,000 people.

The facility filters and

disinfects the sewage, then releases the treated effluent
(sometimes called “reclaimed water” or “wastewater”) into four
on-site injections wells.

Id.

The injection wells are long

pipes into which effluent is pumped.

The effluent then travels

approximately 200 feet underground into a shallow groundwater
aquifer beneath the facility.
ECF No. 73-21.

See 1993 Injection Well Report,

While “the precise depth of this aquifer

fluctuates somewhat, depending on water inputs and other
conditions,” it contains “a sufficient quantity of ground water
to supply a public water system.”
ECF No. 73-24.

UIC Consent Decree at 28-29,

The LWRF typically discharges three to five

million gallons of effluent into the four injection wells on a
daily basis.

See Tracer Dye Study Final Report at 1-16.

Approximately 80% of the effluent is discharged from wells 3 and
4.

Id. at ES-21.

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It is undisputed that effluent pumped into injection
wells 3 and 4 eventually finds its way to the Pacific Ocean,
emerging through “submarine springs” in the waters off Kahekili
Beach on Maui’s west shore.

Id. at ES-2, 3.

This finding was

the conclusion of a study conducted jointly by the EPA, the
Hawaii Department of Health (“DOH”), the U.S. Army Engineer
Research and Development Center, and researchers at the
University of Hawaii.

The study involved placing tracer dye into

each of the LWRF injection wells and monitoring the submarine
seeps off Kahekili Beach to see if and when the dye would flow
into the ocean.

Id.

Dye from wells 1 and 2 did not emerge at

the seeps, but the dye introduced into wells 3 and 4 was detected
eighty-four days after being placed in the wells.

Id.

The study

concluded that the presence of the dye “conclusively
demonstrate[s] that a hydrogeologic connection exists between
LWRF Injection Wells 3 and 4 and the nearby coastal waters of
West Maui.”

Id. at ES3.

The study further estimated that “64%

of the dye injected into Wells 3 and 4 will [eventually be]
discharged at the submarine spring areas.”

Id.

As a result of

that finding, the report also concluded that “64% of the treated
wastewater injected into [the] wells currently discharges from
the submarine spring areas” and into the ocean.

Id.

The County appears to have been aware for some time of
the hydrologic connection between the aquifer under the LWRF and

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the ocean.

A 1991 environmental assessment, conducted by the

County’s Department of Public Works, noted that treated effluent-including suspended solids, dissolved oxygen, nitrogen, and
phosphorous--flows from the injection wells into the ocean.

See

LWRF Environmental Assessment, ECF No. 73-33.
In 2007, the University of Hawaii at Manoa conducted a
study that showed an elevated level of a nitrogen isotope in
algae growing in nearshore waters south of the LWRF.
Declaration of Jennifer E. Smith ¶ 8-9, ECF No. 72-2.
concluded that the nitrogen came from the LWRF.

Id.

See
The study
The United

States Geological Survey also did a study that found “wastewater
presence” in the ocean and elevated levels of a nitrogen isotope
in ocean water samples.

See A Multitracer Approach to Detecting

Wastewater Plumes from Municipal Injection Wells in Nearshore
Marine Waters at Kihei and Lahaina, ECF No. 73-13.
In 2010, the EPA responded to the County’s request to
renew its Underground Injection Control (“UIC”) permit for the
LWRF by informing the County that recent studies “strongly
suggest that effluent from the facility’s injection wells is
discharging into the near shore coastal zone of the Pacific
Ocean.”

EPA Letter, ECF No. 73-34.
Plaintiffs’ experts contend that the water emerging

from the submarine seeps near Kahekili beach is significantly
affecting the chemical, physical, and biological integrity of the

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nearshore water.

See generally Declaration of Adina Paytan, ECF

No. 73-1; Smith Decl.

In particular, Plaintiffs’ experts

conclude that the water near the seeps has elevated levels of
inorganic nitrogen and phosphorus, low salinity, low pH, and high
temperature.

See Paytan Decl. ¶¶ 5, 23-36; Smith Decl. ¶¶ 13-40.

The County’s experts admit that the water directly above the
seeps bears this properties, but argues that when the water mixes
with ocean water these effects rapidly diminish.

Declaration of

Steven Dollar ¶¶ 9-14, ECF No. 79-2; Declaration of Susan C.
Paulsen ¶¶ 19, 21-23, ECF No. 79-3.

The County’s experts

conclude that the effect on nearshore water is not significant.
Id.
Plaintiffs argue that the impact of the effluent on
Kahekili’s nearshore waters is “more than theoretical.”
Decl. ¶ 22.

Smith

Plaintiffs’ experts state that, because of the

additional nitrogen and phosphorus, the coral reefs at Kahekili
have been repeatedly subjected to algal blooms, which have
contributed to a dramatic decline in coral cover.

Id. ¶ 13.

Plaintiffs’ experts also say that the effluent flowing into the
ocean has substantially lower pH levels and oxygen concentration
than the receiving water.
¶¶ 31, 34.

Smith Decl. ¶¶ 29, 35; Paytan Decl.

The low pH, Plaintiffs’ experts say, is causing some

species of reef-building corals and coralline algae to dissolve

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and die, and the low level of oxygen is suffocating coral,
leading to loss of coral tissue and coral death.
¶¶ 30, 34.

Smith Decl.

In addition, Plaintiffs experts say that the effluent

has lower salinity and higher temperature than the receiving
water, properties that can also endanger and kill coral.

See

Paytan Decl. ¶¶ 25-29, 34; Smith Decl. ¶¶ 31-33, 37-38.
The County’s expert argues, on the other hand, that
visual inspection of the coral reveals that “all reef areas
appeared essentially pristine,” and that he “observed [no]
bleached, diseased, or otherwise stressed corals.”
¶ 44.

Dollar Decl.

The County points to photographs of the reef close to the

seeps, which appear to have healthy coral.

Defendants’ Exhs. 6

to 11, ECF Nos. 79-9, 79-10, 79-11, 79-12, 79-13 and 79-14.
In August 2001, the County of Maui and the EPA entered
into a consent decree regarding the injection wells and
compliance with the Safe Drinking Water Act, 42 U.S.C.
§§ 300h-2(c), 200j-4(a).

See ECF No. 8-3.

This consent decree

did not discuss whether an NPDES permit was needed for the
injection wells under the Clean Water Act, although it required
the County to obtain a water quality certification under section
401 of the Clean Water Act, 33 U.S.C. § 1341, from the State of
Hawaii.

The County has applied for that certification, but, as

of March 6, 2014, not even a preliminary determination had been

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made as to whether the County will receive such certification.
See DOH letter dated March 6, 2014, ECF No. 71-4.
The County has also applied for an NPDES permit.

Id.

Despite maintaining that such a permit is not required, the
County submitted its application for the permit to the State’s
DOH on November 14, 2012, which was after this lawsuit was filed.
The application was forwarded to the EPA on November 20, 2012.
Id.

As of March 6, 2014, the DOH had “not made a tentative or

preliminary determination” on the application, nor received any
comments from EPA.

Id.

However, after the hearing on the

present motions, the County received a draft permit and was
invited to comment on the draft by June 9, 2014.
106.

See ECF No.

The DOH says that, after receiving comments from

Plaintiffs’ counsel, the County, and the EPA, it will revise the
draft permit if appropriate and proceed to notice and a thirtyday public comment period and public hearing.

Depending on the

public comments it receives, DOH intends to issue a final permit
within a few months thereafter.

Id.

Plaintiffs contend that the County’s continued
discharge of wastewater without an NPDES permit violates the
Clean Water Act.
The Clean Water Act, passed in 1972, was intended by
Congress “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.”

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33 U.S.C.

§ 1251(a).

To further that objective, the Clean Water Act

prohibits the “discharge of any pollutant” unless certain
provisions of the Clean Water Act are complied with.
U.S.C. § 1311(a).

See 33

The Clean Water Act defines “discharge of a

pollutant” as “any addition of any pollutant to navigable waters
from any point source.”

33 U.S.C. § 1362(12).

In relevant part,

the Clean Water Act defines "pollutant" as "dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural waste
discharged into water."

33 U.S.C. § 1362(6).

The Clean Water

Act defines "navigable waters" as "the waters of the United
States, including the territorial seas."

33 U.S.C. § 1362(7).

The Clean Water Act defines "point source" as
any discernible, confined and discrete
conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock,
concentrated animal feeding operation, or
vessel or other floating craft, from which
pollutants are or may be discharged. This
term does not include agricultural stormwater
discharges and return flows from irrigated
agriculture.
33 U.S.C. § 1362(14).

The Clean Water Act allows discharges of

pollutants when an NPDES permit is obtained and complied with.
See 33 U.S.C. § 1342.

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The Clean Water Act is enforced by state and federal
authorities working together.

Under the Act, a state may apply

for a transfer of permitting authority to state officials.

See

33 U.S.C. § 1342.

Hawaii obtained permitting authority in 1974.

48 F.R. 15662-01.

Once “authority is transferred, then state

officials—-not the federal EPA—-have the primary responsibility
for reviewing and approving NPDES discharge permits, albeit with
continuing EPA oversight.”

Nat'l Ass'n of Home Builders v.

Defenders of Wildlife, 551 U.S. 644, 650 (2007).

The state must

advise the EPA of each permit it proposes to issue, and the EPA
may object to any permit. 33 U.S.C. §§ 1342(d)(1), (2).

If the

state does not adequately address EPA’s concerns, authority over
the permit reverts to the EPA.

Id. § 1342(d)(4).

Plaintiffs sued the County, seeking to compel it to
apply for and comply with the terms of an NPDES permit, and to
pay civil penalties for its earlier allegedly unlawful discharge.
The County moved to dismiss on various grounds.

Among other

things, the County contended that the court should defer acting
until the DOH and the EPA had first reviewed what was then only a
future NPDES permit application.

On August 08, 2012, this court

denied the County’s motion to dismiss.

See ECF No. 34.

As noted

above, subsequent to that dismissal, the County applied for an
NPDES permit.

It now renews its argument that this action should

be dismissed or stayed until the DOH and the EPA have ruled on

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the permit application.

The County also moves to strike several

of the declarations introduced into evidence by Plaintiffs,
including portions of the declarations of experts Jennifer Smith
and Adina Paytan, and asks this court to take judicial notice of
several documents.
Plaintiffs move for summary judgment, arguing that, in
light of the findings of the tracer study, the undisputed
evidence demonstrates that the County has violated the Clean
Water Act.
III.

ANALYSIS
A.

Requests that the Court Strike Evidence and Take
Judicial Notice.

Recognizing that the County’s motion to strike evidence
may bear on the contents of the record that the court will
consult to resolve the parties’ substantive motions, the court
addresses that motion first.
The County first challenges the declarations of Hannah
Bernard, Lauren Campbell, Antoinette Lucienne de Naie, Sharyn
Matin, and Gary Savage, all of whom are representatives of the
various organizations bringing suit.

The County argues that

certain statements in these declarations constitute hearsay
and/or impermissible legal or scientific opinion that the
declarants are not qualified to give.

Plaintiffs respond that

all of these declarations simply support the various Plaintiff
organizations' standing, and that none of the opinions is
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intended to bear on the question of the County’s liability.
County has not challenged any Plaintiff's standing.

The

There is

therefore no reason to strike the declarations.
More significantly, the County challenges the
declarations of both of Plaintiffs’ experts, Adina Paytan and
Jennifer Smith.
First, the County argues that Paytan’s only
qualification is in chemical oceanography and that she therefore
has no expertise regarding the effects of the ocean’s chemistry
on marine biology and on coastal ecosystems.

Plaintiffs

introduce a supplementary declaration by Paytan, which notes that
chemical oceanography is an interdisciplinary field that includes
the study of the effects of the ocean’s chemistry on marine
biology, and that Paytan runs a biogeochemistry laboratory at the
University of California, Santa Cruz.
ECF No. 92-1.

Paytan Opp. Decl. ¶¶ 2, 3,

According to the declaration, biogeochemists study

how chemical cycles affect biological activity, and the research
Paytan has directly conducted or overseen at the laboratory has
been published in numerous peer-reviewed journals that focus on
biogeochemistry and marine biology, including peer-reviewed
articles specifically addressing effects on coral reefs.

Id.

The County's argument appears largely dependent on Paytan's own
characterization of herself as qualified in "chemical

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oceanography" and the County’s assertion that such a
qualification is inadequate.
The County has not asked for an evidentiary hearing
under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993), regarding Paytan’s alleged lack of expert qualification.
The assertions in the County’s motion do not, without more,
establish that Paytan is not qualified as an expert.

This court

therefore declines to strike any part of her statements.
Second, the County challenges statements made by both
Paytan and Smith regarding the theoretical effects of elevated
levels of nitrogen, phosphorus, and oxygen on marine life.

The

County describes Paytan and Smith’s testimony as “speculation”
and therefore inadmissible.

However, the theoretical contentions

made by both Smith and Paytan are not speculative.

Rather, they

appear to be based on “the expert[s’] scientific, technical, or
other specialized knowledge.”

Fed. R. Evid. 702.

The

declarations directly relate to the potential effects effluent
may have on ocean water, and therefore go to whether there is a
significant nexus between the aquifer and the ocean.

Even if

such statements were insufficient to establish such a nexus in
themselves, the County does not show that they are either
irrelevant or prejudicial with respect to the matters that are to
be decided on the present motions.

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Third, the County objects to the term "wastewater,"
used in both the Paytan and Smith declarations and in a
declaration submitted by Plaintiffs’ attorney, David Henkin.

The

County believes the material discharged from the LWRF should be
described as "reclaimed water" or "effluent."

“Wastewater” is a

term that has been used throughout this litigation to refer to
treated sewage that emerges from the LWRF and is the term used by
the independently produced Tracer Dye Study.

It is also what the

“W” stands for in “LWRF,” the acronym the County itself uses to
describe the Lahaina facility.

The court understands that the

treatment of sewage at LWRF may eliminate various toxins from the
water, and even make it safe for drinking.

Whether this treated

water is referred to as "wastewater," “effluent,” or "reclaimed
water" has no bearing on any of the County’s arguments.

The

court understands the terms being used, and there is no prejudice
to any party flowing from the use of the term “wastewater.”
Finally, with regard to Plaintiffs’ experts, the County
objects that Smith's algal bloom study–-Smith Decl. ¶ 9--is
prejudicial because it analyzes the impact of water taken
directly from the LWRF, without taking into account the diffusion
and mixing that the effluent undergoes as it travels through
groundwater and ocean water.

The court recognizes that Smith's

study does not account for these diffusion and mixing effects,
but nevertheless finds the study's analysis probative as to the

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potential effect that effluent has on marine life.

This is a

matter going to the weight of the evidence, not its
admissibility.

Defendant was free to seek its own analysis or

expert testimony showing that the diffusive effects of the
effluent's journey undermine Smith's analysis.

The impact of the

alleged diffusion is a matter in dispute between the experts, not
a reason to strike one side’s expert testimony.
The County also challenges parts of the declaration of
David Henkin.

The County argues that various statements

describing data in the Henkin declaration should be stricken
because Henkin is not an expert.

The County asks that the court

consider the data without his interpretation.

Henkin’s

statements do no more than point to other evidence in the record,
but, in any event, the court does not rely on the Henkin
declaration in interpreting any study in the record.

The County

further suggests that it is incorrect for Henkin to call the LWRF
discharges "unpermitted" because the County held various permits
other than a NPDES permit.

There is no prejudice caused by the

use of the word “unpermitted,” which the court construes as
referring specifically to an NPDES permit and not all permits.
Finally, Plaintiffs admit that the Henkin declaration's
description of Defendant's NPDES application as "incomplete" is
better suited to a legal brief than a declaration.

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The court

does not rely on this statement in paragraph 29 of Henkin’s
declaration.
For the reasons stated above, this court denies the
County’s motion to strike evidence.

Plaintiffs do not oppose

either of the County’s two requests for judicial notice.
Nos. 80, 89.
B.

ECF

Those requests are therefore granted.
Primary Jurisdiction.

The Ninth Circuit has stated that a defendant must
obtain an NPDES permit when it "(1) discharge[s] (2) a pollutant
(3) to navigable waters (4) from a point source."

Headwaters,

Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir.
2001).

It is not disputed that the effluent being discharged at

the LWRF constitutes a pollutant that is being discharged from a
point source.

The only area of dispute between the parties is

whether the discharge into the aquifer beneath the facility
constitutes a discharge into “navigable waters.”
The County argues that for the aquifer itself to be
considered “navigable water” under the Clean Water Act, it must
have both “a direct and immediate hydrological connection” to the
ocean and “significantly affect the chemical, physical, and
biological integrity” of the ocean waters.

The County argues

that this is a fact-sensitive inquiry best left to the DOH and
the EPA.

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The County therefore moves for judgment on the
pleadings, or, in the alternative, for a stay, asking this court
to rule that the DOH and the EPA have primary jurisdiction to
decide whether the County requires an NPDES permit to discharge
effluent at the Lahaina facility.

Even if this court were to

conclude that the agencies have primary jurisdiction, the court
would not enter judgment on the pleadings in the County’s favor.
“The rule in this Circuit is that where a court
suspends proceedings in order to give preliminary deference to an
independent adjudicating body . . . jurisdiction should be
retained by a stay of proceedings, not relinquished by a
dismissal.”

United States v. Henri, 828 F.2d 526, 528 (9th Cir.

1987) (internal quotation omitted).

Therefore, the court denies

the County’s motion for judgment on the pleadings and considers
only its request for a stay.
The doctrine of primary jurisdiction “is a prudential
doctrine under which courts may, under appropriate circumstances,
determine that the initial decisionmaking responsibility should
be performed by the relevant agency rather than the courts.”
Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d
775, 780 (9th Cir. 2002).

Primary jurisdiction “is not a

doctrine that implicates the subject matter jurisdiction of the
federal courts,” and it is left “to the sound discretion of the

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court” whether to stay a case pending resolution of an agency
proceeding.

Id. at 780-81.

“No fixed formula exists for applying the [primary
jurisdiction] doctrine.”

Davel Commc'ns, Inc. v. Qwest Corp.,

460 F.3d 1075, 1086 (9th Cir. 2006) (internal quotation marks and
citation omitted).

However, the Ninth Circuit has stated that

the doctrine “should be used ‘if a claim requires resolution of
an issue of first impression, or of a particularly complicated
issue that Congress has committed to a regulatory agency, and if
protection of the integrity of a regulatory scheme dictates
preliminary resort to the agency which administers the scheme.’”
Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1075 (9th Cir.
2010) (quoting Clark v. Time Warner Cable, 523 F.3d 1110, 1115
(9th Cir. 2008)).
The County argues that the primary objective of this
lawsuit is to compel the County to apply for an NPDES permit, and
that, because that application has been made, this court should
allow the DOH and the EPA to decide whether a permit is required.
The County further contends that this case involves “highly
technical fact-specific inquiries” that require “the specialized
expertise typically possessed by the agencies.”

Memo. in Support

of Primary Jurisdiction Motion at 10-11, ECF No. 71-1.
The decision as to whether the County requires an NPDES
permit is certainly within the jurisdiction and competence of the

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DOH and the EPA.

However, “while competence of an agency to pass

on an issue is a necessary condition to the application of the
[primary jurisdiction] doctrine, competence alone is not
sufficient.”

United States v. Culliton, 328 F.3d 1074, 1082 (9th

Cir. 2003) (internal quotation marks omitted).

Given the

"virtually unflagging obligation of the federal courts to
exercise the jurisdiction given them," Colorado River Water
Conservation District v. United States, 424 U.S. 800, 817–18
(1976), the primary jurisdiction doctrine should not be invoked
unless “it would be inconsistent with the statutory scheme to
deny the agency's power to resolve the issues in question.”
Culliton, 328 F.3d at 1082.

See also Golden Hill Paugussett

Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir. 1994)
("Whether there should be judicial forbearance hinges . . . on
the authority Congress delegated to the agency in the legislative
scheme.").
It would not be inconsistent with the Clean Water Act’s
legislative scheme for this court to decide the question of
whether the County requires an NPDES permit for its discharge at
the LWRF.

The citizen suit provision in the Clean Water Act was

specifically designed to allow courts to ensure direct compliance
with the Act’s requirements.

The presence of the citizen suit

provision demonstrates that Congress believed courts were
competent to make fact-sensitive determinations over whether a

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particular discharge requires a permit.

Congress could easily

have committed that judgment to the sole discretion of an agency,
or, at the very least, limited citizen suits to situations in
which an agency had taken no action.

Congress did not do that.

The Clean Water Act contains other express limitations
on citizen suits.

For example, it bars suits undertaken prior to

the giving of notice to the agency and suits initiated during the
pendency of any government-initiated court action.
§ 1365(b).

See 33 U.S.C.

The absence of any textual limitation on citizen

suits initiated during agency review is a strong indication that
Congress intended such suits to proceed.

See Apalachicola

Riverkeeper v. Taylor Energy Co., LLC, 954 F. Supp. 2d 448, 460
(E.D. La. 2013) (“If Congress had intended for the primary
jurisdiction doctrine to bar citizen suits, it would have
included the doctrine among the specifically delineated
circumstances under which citizen suits are barred.”).

See also

Ass'n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res.,
Inc., 299 F.3d 1007, 1012 (9th Cir. 2002) (allowing citizen suit
despite prior agency determination of no NPDES permit
requirement, because "Congress [has] empowered citizens to pursue
enforcement of the Clean Water Act when all procedural
requirements [are] satisfied”).
Moreover, courts are plainly competent to address the
types of questions raised by the present citizen suit, such as

20

whether there is a hydrologic connection and significant nexus
between two bodies of water.

Indeed, those are precisely the

types of determinations that the Supreme Court made in Rapanos v.
United States, 547 U.S. 715 (2006), and that the Ninth Circuit
made in Northern California River Watch v. City of Healdsburg,
496 F.3d 993 (9th Cir. 2007).

The very existence of the citizen

suit provision in the Clean Water Act indicates that Congress
expected courts to make such judgments.
The County’s references to Montgomery Environmental
Coalition Citizens Coordinating Committee of Friendship Heights
v. Washington Suburban Sanitary Commission, 607 F.2d 378 (D.C.
Cir. 1979), and Friends of Santa Fe County v. LAC Minerals, Inc.,
892 F. Supp. 1333 (D.N.M. 1995), are unpersuasive.

Those cases

“concerned the contents of a NPDES permit . . . and not whether a
permit should be issued in the first place.”

Nat'l Wildlife

Fed'n v. Consumers Power Co., 657 F. Supp. 989, 1001 (W.D. Mich.
1987), rev’d on other grounds, 862 F.2d 580 (6th Cir. 1988).
Here, by contrast, “[r]esolution of plaintiffs' claim[s] does not
require the court to set effluent standards or to write a permit
for the defendant.”

Sierra Club v. El Paso Gold Mines, Inc., 198

F. Supp. 2d 1265, 1271 (D. Colo. 2002), rev’d on other grounds,
421 F.3d 1133 (10th Cir. 2005).

Instead, all that is required of

this court is a determination as to whether the County is
discharging a pollutant from a point source into the navigable

21

waters of the United States.

Such a judgment is within the

conventional expertise of courts and does not require the type of
complex technical judgment at issue in Montgomery and LAC
Minerals.
The County argues, “Given that the administrative
process is underway, an agency decision may make a court order
moot, or, should this litigation proceed, a court order could
subject the County to conflicting obligations.”
of Primary Jurisdiction Motion at 17.

Memo. in Support

However, even if the DOH

and the EPA were to render a decision during the pendency of this
suit, or shortly afterwards, that would neither make the case
moot nor create conflicting obligations.

“[A] court may, in

entertaining a citizen suit, decide whether a discharge of
particular matter into navigable waters violates the CWA even
though the regulating agency determined that the discharge was
not subject to the requirement of a permit.”

San Francisco

Baykeeper v. Cargill Salt Div., 481 F.3d 700, 706 (9th Cir.
2007).

If this court requires a permit, the DOH and the EPA

cannot supersede a decision by this court by determining that an
NPDES permit is not required.

See Hammersley, 299 F.3d at 1012.

And if the agencies require an NPDES permit, that does not render
this entire case moot, because the County could still be liable
for the payment of civil penalties.

See Chafin v. Chafin, 133 S.

Ct. 1017, 1023 (2013) (“[A] case becomes moot only when it is

22

impossible for a court to grant any effectual relief whatever to
the prevailing party.”) (internal quotation marks omitted).

In

other words, there is no discernible harm in proceeding with this
litigation while the agencies consider the County’s application.
By contrast, further delay in this case will result in
the continued alleged discharge of pollutants into the ocean.
See Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005)
(noting that in assessing whether to issue a stay, a court must
consider “the possible damage which may result from the granting
of [the] stay”).

Over a year and a half has passed since the

County submitted its permit application.
The recent issuance of a draft permit suggests that the
DOH has concluded that some permit is indeed required.

That is,

the County may not presently argue that it expects the DOH to
announce that no permit is needed.

While not privy to the

content of the draft permit, this court assumes that its details
remain to be resolved.
set.

No firm deadline for resolution has been

At most, the DOH has set a deadline for comments by the

EPA, the County, and Plaintiffs’ counsel.

Revisions may follow,

then an opportunity for the public to comment.

The best the DOH

can predict is the issuance of a final permit “a few months”
after it reacts to public comment.

The County is therefore

asking for the disfavored remedy of an “indefinite, and
potentially lengthy” stay for as long as administrative

23

proceedings may continue.

See Yong v. I.N.S., 208 F.3d 1116,

1121 (9th Cir. 2000).1
It is well settled that “a stay should not be granted
unless it appears likely the other proceedings will be concluded
within a reasonable time.”

Dependable Highway Exp., Inc. v.

Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007).

If a

court were to grant an indefinite stay in circumstances such as
those now before this court, a defendant would be able to buy
itself potentially years of further pollution through last-minute
applications for an NPDES permit.

Indeed, a polluting entity

would be able to spend years in litigation prior to even applying
for an NPDES permit, then seek to stay proceedings for several
more years during the pendency of a belatedly submitted
application, all the while continuing to release pollutants in
violation of the Clean Water Act.

An application for an NPDES

permit, without more, cannot justify a lengthy or indefinite
stay.
Congress placed no restrictions on citizen suits
during the pendency of administrative proceedings, and the County

1

At the hearing on the present motion, the County
suggested, as an alternative to an indefinite stay, a stay of
three to six months, based on its suggestion that the DOH was
concluding a relevant study in July. The County provides no
evidence, however, that the DOH and the EPA are likely to render
a decision soon after this alleged study. Nor does it show why
this court cannot or should not address the need for an NPDES
permit absent this study.
24

can identify no particular harm associated with allowing this
particular suit to proceed.

“The proponent of a stay bears the

burden of establishing its need.”
681, 708 (1997).

Clinton v. Jones, 520 U.S.

The County has failed to meet its burden and,

as a result, no stay is ordered.
C.

Summary Judgment.
1.

Legal standard.

Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

1134 (9th Cir. 2000).

The movants must support their position

that a material fact is or is not genuinely disputed by either
“citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory
answers, or other materials”; or “showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of

the principal purposes of summary judgment is to identify and
dispose of factually unsupported claims and defenses.
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

25

Celotex

Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

The burden initially falls on

the moving party to identify for the court those “portions of the
materials on file that it believes demonstrate the absence of any
genuine issue of material fact.”

T.W. Elec. Serv., Inc. v. Pac.

Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(citing Celotex Corp., 477 U.S. at 323).

“When the moving party

has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to
the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.

T.W.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show

26

that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).

Accord Addisu, 198 F.3d at 1134 (“There must be enough

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

When “direct evidence”

produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
2.

Id.

A party is liable under the Clean Water Act
if, without an NPDES permit, it indirectly
discharges a pollutant into the ocean through
a groundwater conduit.

The County contends that, to prevail, Plaintiffs must
show that the aquifer beneath the LWRF is “navigable water” under
the jurisdiction of the Clean Water Act.
It has long been settled “that the meaning of
‘navigable waters’ in the CWA is broader than the traditional
understanding of that term.”

Rapanos, 547 U.S. at 731 (2006).
27

“[T]he term ‘navigable’ is of ‘limited import’ and . . . Congress
[has] evidenced its intent to ‘regulate at least some waters that
would not be deemed ‘navigable’ under the classical understanding
of that term.’”

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Engineers, 531 U.S. 159, 167 (2001) (quoting United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133
(1985)).
The framework for understanding what waters are
regulable under the Clean Water Act beyond such “navigable-infact” water comes from the Supreme Court’s decision in Rapanos.
Rapanos presented the Court with the question of whether wetlands
adjacent to tributaries of navigable-in-fact water could be
described as regulable “waters of the United States.”

The Court

split 4-4-1, with the four Justices in the plurality limiting the
definition of “navigable water” under the Act to “those
relatively permanent, standing or continuously flowing bodies of
water ‘forming geographic features’ that are described in
ordinary parlance as ‘streams[,] . . . oceans, rivers, [and]
lakes.’”

Rapanos, 547 U.S. at 739 (quoting Webster's New

International Dictionary 2882 (2d ed.)).

The four Justices in

the dissent viewed all wetlands adjacent to tributaries of
navigable waters as protected under the Act.

Id. at 797.

Justice Kennedy, concurring with the plurality,
examined whether there was a hydrologic connection sufficient to

28

establish a “significant nexus.” See id. at 786.

Under Justice

Kennedy's view, a “significant nexus” exists “if . . . wetlands,
either alone or in combination with similarly situated lands in
the region, significantly affect the chemical, physical, and
biological integrity of other covered waters more readily
understood as ‘navigable.’”

Id. at 780.

Justice Kennedy opined

that this nexus is not satisfied by a “hydrologic linkage” that
is “speculative or insubstantial,” but wetlands adjacent to
navigable waterways are covered by the Act given “the reasonable
inference of ecologic interconnnection” with navigable-in-fact
water.

Id.
In Healdsburg, the Ninth Circuit read Justice Kennedy’s

concurrence as providing the controlling rule.
999-1000.

496 F.3d at

Healdsburg involved a waste treatment plant that

discharged sewage into a body of water known as “Basalt Pond,” a
rock quarry pit that was filled with water from a surrounding
aquifer located next to the Russian River.

See id. at 995.

The

Russian River and Basalt Pond were situated on top of a gravel
bed saturated with water such that there was “a continuous
passage of water between Basalt Pond and the Russian River.” Id.
at 997.

The Ninth Circuit deemed the unpermitted discharge of

pollutants into Basalt Pond to be a violation of the Clean Water
Act.

Noting that “water from the Pond seeps into the river

through both the surface wetlands and the underground aquifer”

29

and that “this hydrological connection . . . [had] a significant
effect on the chemical, physical, and biological integrity of the
Russian River,” the Ninth Circuit held that the relationship
between the two bodies of water was “sufficient to confer
jurisdiction under the Act pursuant to Justice Kennedy's
substantial nexus test.”

Id. at 1000.

Although neither Rapanos nor Healdsburg addressed the
context of groundwater, the County argues that, in Healdsburg the
Ninth Circuit established a two-part test for determining whether
there is a significant nexus between bodies of water, including
groundwater.

The County says that, given this test, Plaintiffs

must show both that a “hydrological connection exists between the
Lahaina Facility’s UIC groundwater discharges and coastal waters”
and that “there are significant physical, chemical and biological
impacts as a result of the connection to warrant issuance of an
NPDES permit.”
11.

See Defendant’s Primary Jurisdiction brief at 10-

Whether or not this reading of Healdsburg is correct, the

parties appear to agree that such a two-part test is a reasonable
interpretation of the standard Plaintiffs must meet to show that
the aquifer under LWRF is itself “navigable water” under the Act.
However, this court concludes that such a showing is
not necessarily the only way in which Plaintiffs may prevail.
Under this court’s reading of the Clean Water Act and the court’s
extrapolation from appellate law, Plaintiffs may also prevail if

30

they show that the discharge into the groundwater below the LWRF
is functionally equivalent to a discharge into the ocean itself.
That is, liability arises even if the groundwater under the LWRF
is not itself protected by the Clean Water Act, as long as the
groundwater is a conduit through which pollutants are reaching
navigable-in-fact water.
The plurality in Rapanos made clear that the
prohibition in the Clean Water Act is not limited to “the
addition of any pollutant directly to navigable waters from any
point source,” but rather extends to “the addition of any
pollutant to navigable waters.”

Rapanos, 547 U.S. at 743

(emphasis in original) (internal quotation marks omitted).
“Thus, . . . lower courts have held that the discharge into
intermittent channels of any pollutant that naturally washes
downstream likely violates § 1311(a), even if the pollutants
discharged from a point source do not emit directly into covered
waters, but pass through conveyances in between.”

Id. (internal

quotation marks omitted).
The Rapanos plurality also approvingly noted that "many
courts have held that . . . upstream, intermittently flowing
channels themselves constitute "point sources" under the Act."
Rapanos, 547 U.S. at 743.

The definition of "point source" under

the Clean Water Act includes "any discernible, confined and
discrete conveyance, including . . . but not limited to any

31

conduit . . . from which pollutants are or may be discharged."
33 U.S.C. § 1362(14).

The Act specifically excludes from the

definition of a point source "agricultural stormwater discharges
and return flows from irrigated agriculture."

Id.

It may be

inferred from this narrow list of exclusions that Congress sought
to include sufficiently "confined and discrete" groundwater
conduits as "point sources" under the Act.

See Tang v. Reno, 77

F.3d 1194, 1197 (9th Cir. 1996) ("An item which is omitted from a
list of exclusions is presumed not to be excluded.") (internal
quotation marks omitted).
There is nothing inherent about groundwater conveyances
and surface water conveyances that requires distinguishing
between these conduits under the Clean Water Act.

When either

type of waterway is a conduit through which pollutants reach the
ocean, then there has been the “addition of [a] pollutant to
navigable waters.”

33 U.S.C. § 1362(12)(A).

“It would, of course, make a mockery of [the Clean
Water Act’s regulatory scheme] if [the] authority to control
pollution was limited to the bed of the navigable stream itself.
The tributaries which join to form the river could then be used
as open sewers as far as federal regulation was concerned.”
United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1326
(6th Cir. 1974).

No less can be said for groundwater flowing

directly into the ocean.

See Williams Pipe Line Co. v. Bayer

32

Corp., 964 F. Supp. 1300, 1319-20 (S.D. Iowa 1997) (“Because the
CWA's goal is to protect the quality of surface waters, the NPDES
permit system regulates any pollutants that enter such waters
either directly or through groundwater.”); Washington Wilderness
Coal. v. Hecla Min. Co., 870 F. Supp. 983, 990 (E.D. Wash. 1994)
(“[S]ince the goal of the CWA is to protect the quality of
surface waters, any pollutant which enters such waters, whether
directly or through groundwater, is subject to regulation by
NPDES permit.”).

See also Mary Christina Wood, Regulating

Discharges into Groundwater: The Crucial Link in Pollution
Control Under the Clean Water Act, 12 HARV. ENVTL. L. REV. 569, 596
(1988) (“To forbid pollution of a surface stream, but to permit
the stream to be polluted by a nearby waste injection well is a
manifest absurdity.”).
This view is consistent with the EPA’s pronouncements.
“As a legal and factual matter, EPA has made a determination
that, in general, collected or channeled pollutants conveyed to
surface waters via ground water can constitute a discharge
subject to the Clean Water Act.”

National Pollutant Discharge

Elimination System Permit Regulation and Effluent Limitations
Guidelines and Standards for Concentrated Animal Feeding
Operations, Proposed Rule, 66 FR 2960-01, 3017 (Jan. 12, 2001);
see also Amendments to the Water Quality Standards Regulations
that Pertain to Standards on Indian Reservations, Final Rule, 56

33

FR 64876, 64892 (Dec. 12, 1991) (“[T]he affected ground waters
are not considered ‘waters of the United States’ but discharges
to them are regulated because such discharges are effectively
discharges to the directly connected surface waters.”).

Cf. Wis.

Dep't of Health & Family Servs. v. Blumer, 534 U.S. 473, 497,
(2002) (noting that an agency’s proposed rule “warrants
respectful consideration”).
This does not mean that groundwater is always and
necessarily itself part of the navigable waters of the United
States.

See 66 FR 2960-01 at 3017 (“EPA does not argue that the

CWA directly regulates ground water quality.”); Definition of
"Waters of the United States" Under the Clean Water Act, 79 FR
22188-01, 22218 (Apr. 21, 2014) (“The agencies have never
interpreted ‘waters of the United States’ to include
groundwater.”).

An unpermitted discharge into the groundwater,

without more, does not constitute a violation of the Clean Water
Act.

It is the migration of the pollutant into navigable-in-fact

water that brings groundwater under the Clean Water Act.

In

other words, if a party were only releasing rocks or other fill
material that did not cause pollutants to migrate through
groundwater, this court would not be talking about this “conduit”
theory for liability under the Clean Water Act.

This theory

applies only when pollutants find their way to navigable-in-fact
waters.

In that event, a permit is required.

34

See Hecla Mining,

870 F.Supp. at 990 (“[P]ollutants must be traced from their
source to surface waters, in order to come within the purview of
the CWA.”).
While there appears to be a split in authority over
whether groundwater pollution violates the Clean Water Act, this
split may largely flow from a lack of clarity by courts as to
whether they are determining that groundwater itself may or may
not be regulated under the Clean Water Act or are determining
that groundwater may or may not be regulated when it serves as a
conduit to water that is indeed regulated.

Almost every court

that has allowed unpermitted discharges into groundwater has done
so under the theory that the groundwater is not itself “water of
the United States.”

That is, those courts were not determining

whether discharging pollutants into groundwater conduits required
a permit.

See, e.g., Vill. of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d 962, 965 (7th Cir. 1994); Umatilla Waterquality
Protective Ass'n, Inc. v. Smith Frozen Foods, Inc., 962 F. Supp.
1312, 1318 (D. Or. 1997).
While it makes sense to regulate groundwater under the
conduit theory, this court acknowledges that it cannot point to
controlling appellate law or statutory text expressly allowing
this theory in the present context.2

2

The Supreme Court in

In deciding that Justice Kennedy’s concurrence in Rapanos
is the controlling rule of law in the Ninth Circuit, the majority
in Healdsburg was addressing only the question in that case,
35

Rapanos dealt only with wetlands that the EPA argued had
ecological value in and of themselves.

The value of the wetlands

in question was not necessarily that they were conduits into
navigable-in-fact water, but that they had independent ecological
worth because of such functions as “providing critical habitat
for aquatic animal species.”

547 U.S. at 766.

Even when the

wetlands in question required protection because of their
“critical functions related to the integrity of other waters,”
those functions, “such as pollutant trapping, flood control, and
runoff storage” went beyond the simple transmission of
pollutants.

Id. at 779.

For those reasons the wetlands at issue

in Rapanos may have required protection even if there was no
possibility that the pollutants would migrate into navigable-infact water.

Id. at 744 (noting that the case involved “dredged

or fill material, which is typically deposited for the sole
purpose of staying put, does not normally wash downstream, and
thus does not normally constitute an addition . . . to navigable
waters when deposited in upstream isolated wetlands”).
By contrast, Plaintiffs here do not appear to be
arguing that the County would necessarily require an NPDES permit
if it deposited material in the aquifer that did not find its way

which, as in Rapanos, involved whether particular wetlands were
themselves navigable waters of the United States. Admittedly,
neither Healdsburg nor Justice Kennedy’s concurrence in Rapanos
applied the conduit theory discussed here to groundwater.
36

to the ocean.

Instead, the harm alleged appears to be based on

the migration of the effluent to the ocean.

That is, Plaintiffs

do not appear to be arguing that the groundwater requires
protection for its own independent ecological value.

Instead,

the concern is that the County should not be allowed to pollute
the ocean through that groundwater.
The test articulated by the Ninth Circuit in Healdsburg
is not a good fit when groundwater is involved.

If the

Healdsburg test is the only way through which a discharge into
groundwater could be determined to come under the Clean Water
Act, Healdsburg poses enormous barriers to the regulation of
groundwater–-barriers that even the plurality in Rapanos would
likely not endorse.

Under a strict application of Healdsburg,

even with definitive proof that 100% of all pollutants discharged
from a point source into groundwater rapidly reach the ocean, a
permit would not be required unless there are also significant
effects on the physical, biological, and chemical integrity of
the ocean.
The Clean Water Act creates a strict liability scheme
that “categorically prohibits any discharge of a pollutant from a
point source without a permit," irrespective of whether that
discharge affects the receiving water.

Comm. To Save Mokelumne

River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir.
1993).

Applying Healdsburg to cases of groundwater pollution

37

could undermine the Clean Water Act’s strict liability scheme, as
it would require plaintiffs to show both that pollutants are
being discharged into navigable water and that those pollutants
are affecting the receiving water.

Congress intended to bar all

unpermitted discharges, without regard to their effects on
protected waters; Congress did not intend a scheme whereby
certain citizen suit plaintiffs were subject to entirely
different proof requirements based solely on the manner in which
pollutants reach the ocean.

Drawing such a distinction is not

only illogical, it runs counter to the structure and intent of
the Act.
This court is not reading Healdsburg as requiring such
a distinction.

Healdsburg does not sub silentio create novel and

significant barriers to groundwater regulation.

Instead, this

court reads Healdsburg as limited to situations in which, as in
Rapanos, a plaintiff seeks to protect a particular wetland in and
of itself.

Healdsburg does not require that a plaintiff who

shows that pollutants indirectly reach navigable-in-fact water
must make a further showing that those pollutants have
significantly affected the receiving water.
Of course, a plaintiff must demonstrate more than “a
general hydrological connection between all waters.”
Co., 870 F. Supp. at 990.

Hecla Min.

Plaintiffs in the present case must

show that pollutants can be directly traced from the injection

38

wells to the ocean such that the discharge at the LWRF is a de
facto discharge into the ocean.

Further, Plaintiffs must show

that the level of pollutants emerging into navigable-in-fact
water is more than de minimis.

If they make these showings, it

would make no sense to exempt a polluter from regulation simply
because its pollution passes through a conduit.

If the point of

emission is readily identified, and the transmission path to the
ocean is clearly ascertainable, the discharge is functionally one
into navigable water.
That is not to say that groundwater can never be
regulated under the Healdsburg test.

An aquifer with a

substantial nexus with navigable-in-fact water may itself be
protected under the Clean Water Act even if it is not necessarily
a conduit for pollutants.

But when it is established that

groundwater is a conduit for pollutants, liability may attach to
a discharge into that groundwater even if the groundwater is not
itself protected under the Act.
3.

It is undisputed that the County has
discharged pollutants into the ocean through
the conduit of the groundwater below the
LWRF.

Applying the above analysis to the present case, the
court first addresses whether the groundwater under the LWRF
constitutes a conduit to the ocean.
The central finding of the Tracer Dye Study–-and the
centerpiece of Plaintiffs’ case–-is that "64% of the treated
39

wastewater injected into wells [3 and 4] currently discharges
from the submarine spring areas" and into the ocean.
Study at ES-2,3; Paytan Decl. ¶ 18.

Tracer Dye

Because wells 3 and 4

“receive more than 80 percent of the treated wastewater,” see
Tracer Dye Study ES-21, it appears that over 50% of the
wastewater discharged at the LWRF emerges into the ocean.

At the

hearing on the present motions, the County admitted that
pollutants discharged at the LWRF are reaching the ocean, but
disputed the specific quantities stated in the Trace Dye Study.
What the County failed to do was explain why it believed the
quantities cited in the Study were incorrect.

Nor did the County

point to any evidence in the record disputing the Study’s precise
findings.
The County’s expert, Paulsen, maintains that, “as
groundwater moves through the subsurface, various chemical and
biological reactions can occur that alter the characteristics of
the groundwater.”

Paulsen Decl. ¶ 17.

However, neither that

statement nor the rest of Paulsen’s declaration indicates that
the chemical and biological reactions that occur as the effluent
travels through the groundwater to the ocean transform the
effluent into something other than a “pollutant.”

In other

words, even if, for example, the levels of nitrogen and
phosphorus in the water being released at the seeps are less than
in the effluent injected at the wells, that does not mean that

40

the water at the seeps is not or does not contain a “pollutant”
within the meaning of the Act.

Indeed, at the hearing on the

present motion, the County explicitly disclaimed any such
argument, conceding that “pollutants” were released at the seeps.
The County appeared to be arguing at the hearing that
deep groundwater could not, as a matter of law, be viewed as a
“conduit” because of these diffusive effects.

That is, the

County appeared to be arguing that any channel or conveyance to
the ocean may be considered a conduit only if it “confine[s] or
contain[s] the water.”

This argument elides the distinction

between a point source and a conduit.

A point source is

specifically defined in the Clean Water Act as a “confined and
discrete conveyance.”

While any conduit that is a “confined and

discrete conveyance” is a point source, that does not mean that
all conduits must be “confined and discrete conveyances.”

An

injection well itself is a point source, and the groundwater
acting as a conduit need not also be “confined and discrete.”
Courts have adopted “the ‘indirect discharge’ rationale and the
‘point source’ rationale in the alternative.”
at 744 (emphasis added).

Rapanos, 547 U.S.

It would be anomalous for those

alternative rationales to merge into a single rationale.
In any event, nothing in the record suggests that the
groundwater is not itself a “confined and discrete conveyance.”
See United States v. Earth Sciences, Inc., 599 F.2d 368, 373

41

(10th Cir. 1979) (“The concept of a point source was designed to
further this scheme by embracing the broadest possible definition
of any identifiable conveyance from which pollutants might enter
the waters of the United States.”).

The definition of “point

source” is limited to “confined and discrete conveyances” to
minimize the difficulty of discerning the source of pollutants.
See Trustees for Alaska v. E.P.A., 749 F.2d 549, 558 (9th Cir.
1984).

The finding of the Tracer Dye Study is that more than 50%

of the effluent originating at the LWRF is finding its way into
the ocean.

Any conveyance that transmits such a high proportion

of a pollutant from one place to another is consistent with being
“confined and discrete,” irrespective of its other geologic
properties.
The County’s theory that groundwater cannot be
considered a conduit because it is not “confined and discrete”
would lead to the radical conclusion that all conveyances through
groundwater into the ocean are permissible under the Act, even if
100% of the pollutants find their way into the ocean.
Recognizing that such a contention conflicts with the numerous
cases holding that the Act prohibits indirect pollution through
groundwater, the County carves out an exception to its theory for
transmission through “shallow subsurface” water.

Neither logic

nor case law supports distinguishing between “shallow” and “deep”
groundwater.

The key factor is not the depth of the groundwater,

42

but the existence of a pollutant that eventually reaches the
ocean.

It would make no sense to conclude that the release of

pollutants into “shallow subsurface water” surrounded by
impermeable rock requires a permit, but the release of pollutants
into “deep” groundwater does not require a permit even if the
latter involves far greater transmission of pollutants into the
ocean.

And neither case authorities nor statutory or regulatory

language provides any clue as to the precise measurement that
might render groundwater deep.
Of course, releasing water deeper underground may
correlate to diffusion of a pollutant before it reaches the
ocean.

That diffusion may sometimes be so great that it is no

longer reasonable to conclude that any pollutant is reaching the
ocean.

But depth is not the only consideration in determining

whether pollutants are reaching navigable-in-fact water.

Other

factors, such as the permeability of the rock, may be equally
important.

There is no support, therefore, for creating a

categorical exclusion for “deep” groundwater.

The core inquiry

must be a case-by-case determination of whether pollutants are
reaching navigable-in-fact water.

That determination is

immensely simplified in the present case by the presence of an
independently produced report that traces pollutants from the
LWRF to the ocean.

43

At the hearing, the County also suggested that the
effluent was diffused as it spread through the groundwater, and
that such diffusion precluded a finding that the groundwater was
a conduit to navigable water.

But liability under the Clean

Water Act is triggered when pollutants reach navigable water,
regardless of how they get there.

As with a “deep” conduit, a

diffused conduit is no less covered under the Act if it actually
conveys pollutants to navigable-in-fact water.
Under the County's "diffusion" theory, for example, a
single pipe taking effluent to the ocean would be covered under
the Clean Water Act, but 50 smaller pipes, taking the same
quantity of pollutant into the ocean, might not.

Nothing in the

Act supports relying on the manner in which the pollutants travel
to determine liability.
Similarly, at the hearing, the County argued that the
injection wells were “too far” from the ocean to qualify as
conduits.

Counsel for the County admitted, however, that if the

pollutant traveled in a half-mile-long lava tube that confined
the water, it would constitute a “direct” discharge into the
ocean.

To the County therefore, distance appeared to be a proxy

for the degree of diffusion.

Because diffusion is itself only

relevant to the extent it may prevent the water from reaching the
ocean, there is no support for a categorical rule that allows any

44

discharge of pollutants through groundwater so long as the
discharge originates a certain distance from the ocean.
This court recognizes that, in the absence of a tracer
dye study, depth, diffusion, and distance might serve as proxies
to help a court determine how much, if any, pollutant is reaching
navigable-in-fact water.

But such approximations are unnecessary

when pollutants have been precisely traced from the point of
discharge to the ocean.
Liability under the Clean Water Act is triggered as
soon as pollutants are discharged into navigable water from a
point source.

See Headwaters, 243 F.3d at 532.

The core

undisputed fact of this case is that pollutants discharged by the
County at the LWRF injection wells migrate to the ocean.

Having

no NPDES permit allowing this discharge, the County is violating
the Clean Water Act.
4.

Even under Healdsburg’s two-part test, Plaintiffs
are entitled to summary judgment on the issue of
whether the County has violated the Clean Water
Act.

As discussed in Section III(C)(2) of this order, the
Healdsburg test may present significant obstacles to the
regulation of groundwater by requiring plaintiffs who are able to
clearly show pollutants flowing into protected water to also
demonstrate that the flow of those pollutants has “significant
effects.”

In many cases, “significant effects” may not be

discernable until considerable pollution has already occurred.
45

In other cases, plaintiffs may not have the resources to identify
such effects.

The present case does not present those

difficulties.

The record before this court is exceptionally

extensive.

The discharges from the LWRF have been the subject of

investigation and scrutiny by scientists and federal and state
authorities for over a decade.

The consensus of the numerous

studies and reports placed before the court appears to be that
effluent from the LWRF is reaching the ocean and is significantly
affecting the water near the submarine seeps where it is being
discharged.

This record allows this court to conclude, even

under the Healdsburg test, that the County is violating the Clean
Water Act.
In referring to the Healdsburg test, this court notes
that the parties appear to agree that, under Healdsburg,
Plaintiffs must show that there is both a “hydrologic connection”
between the aquifer under the LWRF and the ocean, and that the
aquifer “either alone or in combination with similarly situated
[wet]lands in the region, significantly affect[s] the chemical,
physical, and biological integrity of [the ocean].”

Healdsburg,

496 F.3d at 1000 (internal quotation marks omitted).
Healdsburg itself does not actually speak of a
"two-part" test.

Instead it simply states that "wetlands are

regulable under the CWA only if there is a significant nexus
between the wetlands at issue and the navigable waterway."

46

496

F.3d at 1000.

Healdsburg notes that "mere hydrologic connection

should not suffice in all cases [because] the connection may be
too insubstantial for the hydrologic linkage to establish the
required nexus with navigable waters as traditionally
understood."

Id. (internal quotation marks omitted).

Instead of

expressly articulating a "two-part" test, this statement
recognizes that a hydrologic connection does not alone meet the
significant nexus test.

In other words, if there are two bodies

of water with no hydrologic connection that affect one another's
"chemical, physical or biological integrity," they may still be
regulable under the Act.

Because the aquifer under the LWRF and

the ocean have a clear hydrological connection, the court is not
faced with such a circumstance.

However, given the parties’

agreement that Healdsburg creates a two-part test, the court
applies their framework for the purposes of deciding this part of
the motion, although the court is not thereby ruling that the
parties’ agreement is necessarily the correct application of
Healdsburg.
As a threshold matter, the County argues that
groundwater categorically cannot be considered a “water of the
United States,” irrespective of any nexus it may have with
navigable-in-fact water.

The County’s primary basis for this

assertion is a recently proposed rule by the EPA and the Army
Corps of Engineers stating, “Groundwater, including groundwater

47

drained through subsurface drainage systems . . . [is] expressly
not ‘water[] of the United States’ by rule.”
22218.

79 FR 22188-01 at

If this rule were to become final, it would be entitled

to deference by this court under Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), and would likely
mean that the groundwater under the LWRF could not itself be
considered “water of the United States.”

It is important to note

that, even if this rule does become final, it need not affect the
indirect discharge theory discussed in Section III(C)(2) of this
order.

In keeping with the agencies’ pronouncements, the

indirect discharge theory does not treat groundwater as itself
“water of the United States,” but as a conduit to such water.

If

adopted, the proposed rule would, however, affect whether
Plaintiffs may prevail on the alternative theory that the
discharge at the LWRF meets the Healdsburg test.
In the Ninth Circuit, “proposed regulations carry no
more weight than a position advanced on brief.”

Tedori v. United

States, 211 F.3d 488, 492 (9th Cir. 2000) (citation omitted).
The proposed rule purports to interpret the statutory language of
the Clean Water Act.

When agencies have asserted new

interpretations of statutory language in legal briefs, the Ninth
Circuit has consistently declined to give controlling weight to
the agency’s pronouncements.

See, e.g., Christopher v.

SmithKline Beecham Corp., 635 F.3d 383, 395 (9th Cir. 2011); N.

48

Cal. River Watch v. Wilcox, 633 F.3d 766, 780 (9th Cir. 2011).
Because proposed rules are not entitled to more respect than
positions advocated in briefs, the proposed groundwater rule is
similarly not owed deference here.

To hold otherwise would give

similar force in the courts to an agency’s proposed and final
rules.

Such a result would, to some degree, allow agencies to

circumvent the very notice and comment process that the Supreme
Court has found to be highly relevant in determining the
deference owed to an agency interpretation.

United States v.

Mead Corp., 533 U.S. 218, 230 (2001)
Therefore, while the court gives “respectful
consideration,” Blumer, 534 U.S. at 497, to the agencies’
proposed categorical exclusion of groundwater from the definition
of the “waters of the United States,” the agencies’ view does not
control.

Instead, the court must make a determination based on

the unique facts present here regarding whether the aquifer under
the LWRF is regulable under the Clean Water Act.

This court now

applies the parties’ two-part test to that subject.
The County argues that, to meet the first part of its
reading of the Healdsburg test, Plaintiffs must demonstrate a
hydrologic connection between the aquifer and the ocean that is
“direct and immediate.”

The County cites almost no authority to

support its novel “direct and immediate” requirement and does not
articulate what constitutes a sufficiently “direct” or

49

“immediate” connection.

The cases the County relies on in

describing its “direct and immediate” requirement actually
support the conclusion that the hydrologic connection between the
aquifer and ocean here is sufficiently “direct and immediate.”
For example, in Greater Yellowstone Coalition v.
Larson, 641 F. Supp. 2d 1120, 1139 (D. Idaho 2009), the court
held that it was not arbitrary and capricious for the EPA to
decide that there was no hydrologic connection when pollutants
traveled “between one to four miles until reaching the surface
water,” and “would take between 60 and 420 years for peak
concentrations . . . to arrive at surface water.”

Here, the

effluent travels for less than half a mile and reaches the ocean
within three months of discharge.

The Larson court considered

the degree of hydrologic connection to involve a close question
despite the much longer distance and vastly slower speed the
pollutants traveled in that case.

Larson therefore supports the

conclusion that the discharge at the LWRF has a “direct and
immediate” hydrologic connection with the ocean.
Similarly, the court in Association Concerned Over
Resources And Nature, Inc. v. Tennessee Aluminum Processors, Inc.
2011 WL 1357690 at *18 (M.D. Tenn. Apr. 11, 2011), required the
plaintiffs to show only “a link between contaminated ground
waters and navigable waters.”

Nothing in that case suggests that

50

the link between the aquifer under the LWRF and the ocean is
insufficiently direct.
The County further argues that the “direct and
immediate” requirement is consistent with Healdsburg because the
court in that case found “a hydrological connection between a
pond and nearby river where ‘a change in the water level in one
immediately affect[ed] the water level in the other.’”

Opp. at 7

(emphasis in original) (quoting Healdsburg, 496 F.3d at 1000).
But that language in Healdsburg relates to the “physical
connection” between the Basalt Pond and the Russian River under
the second prong of the test, not to the degree of hydrologic
connection under the first prong.

In any event, Healdsburg does

not purport to set the outer bounds of the Clean Water Act’s
applicability.

The County fails to establish that any hydrologic

connection less than the one at issue in Healdsburg is
insufficient to trigger liability under the Clean Water Act.
Unlike the courts in the cases discussed above, this
court has before it the Tracer Dye Study, which indisputably
demonstrates the relatively rapid flow of significant quantities
of pollutant from the LWRF to the ocean.

In these circumstances,

it would be anomalous for the court to read Healdsburg, or any
other case, as requiring a finding of no hydrologic connection.
Plaintiffs clearly meet the first prong of the Healdsburg test.

51

This court turns to the second part of the test defined
by the parties--whether the water in the aquifer “significantly
affects the [ocean’s] physical, biological and chemical
integrity.”

See Healdsburg, 496 F.3d at 1001.

Plaintiffs

contend that the ocean water close to the submarine seeps has
been affected in five separate ways.
First, Plaintiffs contend that water near the seeps has
“exceptionally elevated” levels of nitrogen and phosphorus.
Smith Decl. 11, 17-19.

See

In particular, the area near the seeps

apparently has the highest levels of sewage-derived nitrogen
“ever reported in the scientific literature.”

Id. ¶ 8.

Elevated

levels of such nutrients can accelerate the growth of fleshy
seaweed and algae, which can compete with, outgrow, and kill
coral.

Id. ¶ 20.

In keeping with this conclusion, the coral

reefs near the submarine seeps have been subject to algal blooms
that have led to a decline in coral cover from 55% to 33% between
1994 and 2006.

Id. ¶ 25.

Second, Plaintiffs show that the water near the
submarine seeps is substantially more acidic than the rest of the
ocean’s nearshore water.

Id. ¶ 29; Tracer Dye Study at 2-12, 2-

13. This ocean acidification reduces the amount of carbonate ions
available for species such as corals, mussels, and limpets, and
promotes the growth of seaweed that competes with coral.
Decl. ¶ 27.

52

Smith

Third, Plaintiffs demonstrate that the emerging water
has lower salinity than the ocean water, see Tracer Dye Study at
2-12, 2-13, and this low salinity can be harmful to coral that
has evolved to live in seawater rather than freshwater.

Smith

Decl. ¶ 33.
Fourth, Plaintiffs show that oxygen concentrations from
the water emerging from the seeps is substantially lower than in
the marine water elsewhere in West Maui.
Paytan Decl. ¶ 34.

Smith Decl. ¶ 35;

The lack of oxygen can suffocate coral and

promote the growth of seaweed.

Smith Decl. ¶¶ 34-36; Paytan

Decl. ¶¶ 34-35.
Fifth, Plaintiffs show that the water temperature is
substantially elevated near the seeps.
2-12, 2-13.

See Tracer Dye Study at

The Tracer Dye Study found that these higher

temperatures extended over more than 167 acres around the seeps.
See Paytan Decl. ¶¶ 26-29.

These higher temperatures can lead to

bleaching and death of the coral in the affected area.

See Smith

Decl. ¶ 37.
Neither the County nor their experts dispute that the
water directly emerging from the seeps bears these properties.
Nor do they dispute that the theoretical effect of such
alterations to ocean water would be to damage coral in the ways
described above.

Rather, the County argues that “measurements at

the seeps fail to account for mixing of the seep discharge with

53

ocean water.”

Memo. in Opp. to Motion for Summary Judgment at

16; see also Paulsen Dec., ¶¶ 23, 38; Dollar Dec., ¶ 12-13.

The

County and their experts note that, as the water emerging from
the seeps moves through the water column, the effects of the
effluent dissipate.

Id.

As the County puts it, “[a]ny effects

of the seep discharge are . . . attenuated, particularly given
the small area of the seeps compared to the entire reef.”
in Opp. at 17-18.

Memo

The County’s experts contend that, given this

dispersion of effluent, the reef in the nearshore area is not
being harmed by the discharge at the LWRF.

See, e.g., Dollar

Dec., ¶ 44. (“[A]ll reef areas appeared essentially pristine,
i.e., no observed bleached, diseased, or otherwise stressed
corals.”).
Even accepting these statements by the County’s
experts, the court finds that there is no genuine dispute that
the discharge at the LWRF significantly affects the physical,
chemical, and biological integrity of the ocean water.

There is

no dispute that water is flowing from the aquifer into the ocean,
and that the properties of the aquifer water can and are altering
the properties of water near the seeps.

Of course, given the

vastness of the ocean, these effects will dissipate as the
aquifer water is dispersed into ocean water.

To hold that an

“effect” is “insignificant” merely because of such dispersion
would license unfettered discharge into any body of water

54

voluminous enough to rapidly diffuse the effects of the effluent.
Ocean water near the seeps is, indisputably, being significantly
affected.

The County provides no basis for the contention that

these effects must be felt throughout all the nearshore waters to
meet the “significant effects” test.
Notably absent from the County’s analysis is any
framework for determining when such dispersion renders an effect
“insignificant.”

The effects of any amount of pollutant will

eventually disperse as the pollutant travels through the ocean,
but the County does not articulate how great a distance from the
discharge an “effect” must be felt for it to be deemed
“significant.”
The crux of the “significant effects” test is
determining whether the aquifer’s “effects on water quality are
speculative or insubstantial, [such that] they fall outside the
zone fairly encompassed by the statutory term ‘navigable
waters.’”

Healdsburg, 496 F.3d at 1000 (quoting Rapanos, 547

U.S. at 717 (Kennedy, J., concurring in judgment)).

Here, the

effect is indisputably neither speculative nor insubstantial.
The LWRF releases three to five million gallons of effluent a
day; an independent EPA study has determined that at least 50% of
this effluent makes its way relatively rapidly into the ocean;
this effluent has properties that can radically alter the
properties of the water it is introduced into; and such radical

55

effects have been observed and measured at the point of discharge
into the ocean.

If such a relationship is considered

“speculative” and “insubstantial,” it is hard to imagine any
groundwater connection meeting what the parties construe as the
Healdsburg test.
Finally, the County’s assertion that coral is not being
damaged and is “pristine,” even if true, is irrelevant for
determining a significant nexus.

An “effect” on the ocean is not

coextensive with “harm” to the ocean.

Comm. To Save Mokelumne

River, 13 F.3d at 309 (noting that the CWA "does not impose
liability only where a point source discharge creates a net
increase in the level of pollution” but instead creates a strict
liability scheme that "categorically prohibits any discharge of a
pollutant from a point source without a permit”).

The undisputed

physical, chemical and biological changes observed in the water
near the seeps are sufficient to establish that the aquifer and
the ocean have the required nexus.

To establish the County’s

liability, Plaintiffs need not show that coral or other marine
life has been damaged or harmed.
The only reasonable inference that the undisputed
evidence permits is that the discharge into the aquifer
significantly affects the physical, chemical and biological
integrity of the receiving waters.

Both prongs of the Healdsburg

test defined by the parties are met here.

56

Therefore, the

County’s discharge of pollutants into the aquifer beneath the
LWRF without an NPDES permit is a violation of the Clean Water
Act.
In concluding that Plaintiffs in this case prevail even
under the Healdsburg two-part test they have defined, this court
is not suggesting that Healdsburg must be applied to all cases
involving groundwater pollution.

This case does not require this

court to address, for example, whether Healdsburg bars the
introduction of pollutants into groundwater that do not migrate
to navigable-in-fact water.

This court holds only that, given

the undisputed evidence in the record showing that pollutants
rapidly flow from the aquifer into the ocean and cause
significant change to the ocean water near the submarine seeps,
the County is liable under both the Healdsburg framework
articulated by the parties and the indirect discharge (or
“conduit”) framework.

The Healdsburg test, which developed in

the context of wetlands that plaintiffs sought to protect for the
wetlands’ own ecological value, may not always provide a good fit
for cases involving groundwater.

If Healdsburg, rather than the

“conduit” theory, is to govern groundwater cases, it may require
further clarification and elaboration in cases with fact patterns
different from the one before this court.

In the present case,

however, the Healdsburg test relied on by the parties leads
ineluctably to the same conclusion as the “conduit” theory: the

57

County’s release of pollutants at the LWRF without an NPDES
permit violates the Clean Water Act.
IV.

CONCLUSION.
The court denies Defendant’s motion for judgment on the

pleadings or, in the alternative, a stay.

The court grants

Plaintiffs’ motion for partial summary judgment as to the
County’s liability under the Clean Water Act.

The court makes no

determination at this stage regarding any civil penalties.
The court grants the County’s two requests for judicial
notice and denies the county’s motion to strike expert
declarations.

58

Because Plaintiffs are prevailing on the substantive
motions before this court, the court sees no need to address the
merits of their Motion to Strike Defendant’s Second May 23, 2014
Letter.

That motion is denied.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 30, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Hawaii Wildlife Fund, et al. v. County of Maui; Civil No. 12-00198 SOM/BMK; ORDER
DENYING DEFENDANT’S MOTION FOR STAY AND GRANTING PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT

59