Hawaii Wildlife Fund et al v. County of Maui

Filing 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. "Plain tiffs' 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, ) CERTIFICATE OF SERVICEParticipants 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

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,

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

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

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

INTRODUCTION.
Before the court are cross-motions for partial summary

judgment filed by Plaintiffs Hawai`i Wildlife Fund, Sierra Club,
Surfrider Foundation, and West Maui Preservation Association
(collectively, “Plaintiffs”) and by Defendant County of Maui (the
“County”).

The cross-motions concern whether the County has

violated the Clean Water Act by discharging effluent without a
National Pollutant Discharge Elimination System (“NPDES”) permit
at two of four injection wells at the Lahaina Wastewater
Reclamation Facility (“LWRF”).

The court grants Plaintiffs’

motion and denies the County’s motion.

II.

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

treatment facility approximately three miles north of the town of
Lahaina on the island of Maui.
No. 139-10, PageID # 5029.

See ECF No. 41, PageID # 451; ECF

The facility receives approximately

four million gallons per day of sewage from a collection system
serving approximately 40,000 people.
# 5029.

See ECF No. 139-10, PageID

The facility filters and disinfects the sewage, then

releases the treated effluent (sometimes called “reclaimed water”
or “wastewater”) into four on-site injection wells.

See id.

The

effluent reaches a groundwater aquifer, the precise depth of
which “fluctuates somewhat, depending on water inputs and other
conditions.”

The aquifer contains “a sufficient quantity of

ground water to supply a public water system.”

See ECF No. 129-

13, PageID # 4230.
This court granted summary judgment to Plaintiffs as to
the County’s liability under the Clean Water Act for discharges
of effluent into two of the injection wells, wells 3 and 4, that
cause pollutants to make their way to the Pacific Ocean.
No. 113.

See ECF

Both parties now seek summary judgment on the issue of

whether the County has violated the Clean Water Act by
discharging effluent into the two remaining wells, wells 1 and 2.
The Environmental Protection Agency (“EPA”), the State
of Hawaii Department of Health (“DOH”), the U.S. Army Engineer

2

Research and Development Center, and researchers at the
University of Hawaii conducted a study “to provide critical data
about the possible existence of a hydraulic connection
between the injection of treated wastewater effluent at the
[LWRF]. . . and nearby coastal waters, confirm locations of
emerging injected effluent discharge in these coastal waters, and
determine a travel time from the LWRF injection wells to the
coastal waters.”

ECF No. 139-10, PageID # 5026.

The study

involved placing tracer dye into injection wells 2, 3, and 4, and
monitoring the submarine springs of Kahekili Beach on Maui’s west
shore.

See id.
Although dye introduced into wells 3 and 4 was detected

at the seeps (i.e., the areas where the groundwater reaches the
surface) eighty-four days after being placed in those wells, dye
introduced to well 2 was not detected.
5042.

Id., PageID #s 5028,

The study concluded that the presence of dye from wells 3

and 4 at the seeps “conclusively demonstrate[s] that a
hydrogeologic connection exists between LWRF Injection Wells 3
and 4 and the nearby coastal waters of West Maui.”
# 5028.

Id., PageID

No tracer study has been conducted on well 1.

See ECF

No. 127, PageID # 3733; ECF No. 139, PageID # 4889.
Irrespective of the tracer study’s results for well 2
and the lack of such a study for well 1, the parties do not
dispute that effluent pumped into wells 1 and 2 eventually finds

3

its way to the Pacific Ocean.
ECF No. 136, PageID # 4515.

See ECF No. 129, PageID # 3933;
Though the County contends that the

point of entry into the ocean of flow from wells 1 and 2 cannot
be identified, the County acknowledges that there is a
hydrogeologic connection between wells 1 and 2 and the ocean.
See ECF No. 136, PageID # 4515.

Indeed, this court repeatedly

confirmed at the hearing on the present cross-motions that the
County was expressly conceding that pollutants introduced by the
County into wells 1 and 2 were making their way to the ocean.
Plaintiffs contend that the County’s continued
discharge of effluent into wells 1 and 2 without an NPDES permit
violates the Clean Water Act.

See ECF No. 128-1, PageID # 3927.

The County contends that it is not subject to liability with
respect to wells 1 and 2.
III.

See ECF No. 125, PageID # 3708.

STATUTORY FRAMEWORK.
The Clean Water Act, passed in 1972, was intended by

Congress “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.”
§ 1251(a).

33 U.S.C.

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).

4

In relevant part,

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

33 U.S.C. § 1362(6).

The Clean Water

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

33 U.S.C. § 1362(7).

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

The Clean Water Act allows discharges of

pollutants when an NPDES permit is obtained and complied with.
See 33 U.S.C. § 1342.
Plaintiffs sued the County, seeking to compel it to
apply for and comply with the terms of an NPDES permit, and to
pay civil penalties for discharges Plaintiffs contend were
unlawful.
IV.

STANDARD.
Summary judgment shall be granted when “the movant

shows that there is no genuine dispute as to any material fact
5

and the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1134 (9th Cir. 2000).

The movant must support his or her

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

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

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

Summary

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

See id. at 323.

A moving party without the ultimate

burden of persuasion at trial--usually, but not always, the
defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to

6

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

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

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

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.

T.W. Elec.

At least some “‘significant

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

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

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

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

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587); accord Addisu, 198 F.3d at 1134 (“There must be enough

7

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.

T.W. Elec. Serv.,

Inferences may be drawn from underlying

facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
Id.

When “direct evidence” produced by the moving party

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

Id.

V.

ANALYSIS.
A.

Requests for Judicial Notice.

The County makes multiple requests for judicial notice.
See ECF Nos. 127-13, 137-13, 141-8.

There being no opposition

from Plaintiffs, the court grants those requests and takes
judicial notice of the documents as public records and government
documents.
B.

Plaintiffs are Entitled to Summary Judgment on the
County’s Liability Under the Clean Water Act for
Discharges into Wells 1 and 2 at the LWRF.

To establish the County’s liability under the Clean
Water Act, Plaintiffs must show that the County has discharged a
pollutant into navigable waters from a point source without an
8

NPDES permit.

See 33 U.S.C. §§ 1311(a), 1342, 1362(12); see also

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532
(9th Cir. 2001).
There is no dispute that the County is discharging a
pollutant into navigable waters without an NPDES permit.

See ECF

No. 136, PageID # 4515 (“The County does not dispute that
effluent injected into Wells 1 and 2 enters groundwater and
eventually flows to and enters the ocean.

In other words,

Plaintiffs meet three of the four elements of the ‘discharge of
any pollutant’ definition, i.e., ‘addition of any pollutant to
navigable waters.’”).1

The only area of dispute between the

parties is whether the discharge is from a point source.

See id.

The County contends that an indirect discharge of
pollutant to navigable waters requires “a series of sequential
point sources conveying [the] pollutant[] from the initial point
of discharge to navigable waters.”

ECF No. 125, PageID # 3710.

In other words, according to the County, when a single point
source does not discharge pollutant directly into navigable
waters, liability under the Clean Water Act does not arise unless
the pollutant passes through point sources along the entire

1

As this court has noted earlier in this order, the
County’s statement that, with respect to wells 1 and 2, there is
no tracer study data of the type available with respect to wells
3 and 4 concerns a meaningless distinction for purposes of the
present motions given the County’s concession that pollutants
from wells 1 and 2 reach the ocean. The County nowhere contends
that the amount of effluent is de minimis.
9

pathway it travels.

Because Plaintiffs do not offer evidence of

such multiple point sources, the County says that the effluent
injected into wells 1 and 2 cannot be said to be discharged into
navigable waters from a point source.

According to the County,

the groundwater though which the effluent travels cannot be a
point source under 33 U.S.C. § 1362(14) because groundwater is
not a “discernible, confined and discrete conveyance.”

Id.,

PageID # 3715.
The County acknowledges that, in making its present
argument, it is seeking to persuade this court to revisit its
earlier ruling granting Plaintiffs summary judgment as to wells 3
and 4.

In its earlier order, this court addressed the County’s

argument that groundwater could not be considered a conduit
because there is no “confinement or containment of the water,” as
required of a point source under the Clean Water Act.

ECF No.

97, PageID # 3504 (internal quotation marks omitted).

This court

stated:
This argument elides the distinction between
a point source and a conduit. A point source
is specifically defined in the Clean Water
Act as a “confined and discrete conveyance.”
While any conduit that is a “confined and
discrete conveyance” is a point source, that
does not mean that all conduits must be
“confined and discrete conveyances.” An
injection well itself is a point source, and
the groundwater acting as a conduit need not
also be “confined and discrete.”
ECF No. 113, PageID # 3654

10

Plaintiffs note that the County failed to file a timely
motion for reconsideration of this court’s earlier order, and
argue that the County cannot now challenge this court’s prior
decision given the law of the case doctrine.

Under that

doctrine, “a court is generally precluded from reconsidering an
issue that has already been decided by the same court, or a
higher court in the identical case.”

United States v. Cuddy, 147

F.3d 1111, 1114 (9th Cir. 1998) (internal quotation marks
omitted).

The County urges this court to depart from the law of

the case because the prior ruling was clearly erroneous and
results in a manifest injustice.

See id. (“[A] court may have

discretion to depart from the law of the case if: 1) the first
decision was clearly erroneous; 2) an intervening change in the
law has occurred; 3) the evidence on remand is substantially
different; 4) other changed circumstances exist; or 5) a manifest
injustice would otherwise result.”).
This court remains unpersuaded by the County’s reading
of what the Clean Water Act requires.

The authorities the County

refers to are neither binding authority for the County’s theory
nor analyses establishing error in this court’s prior ruling.

In

this court’s “Inclinations,” routinely issued by this judge in
advance of hearings, the County was asked to come to the hearing
on the present motions prepared to discuss authority specifically
requiring pollutants not directly discharged into navigable

11

waters to travel though “a series of sequential point sources
conveying pollutants from the initial point of discharge to
navigable waters.”
omitted).

ECF No. 156 (internal quotation marks

At the hearing, the County discussed: Rapanos v.

United States, 547 U.S. 715 (2006); South Florida Water
Management District v. Miccosukee Tribe of Indians, 541 U.S. 95
(2004); United States v. Ortiz, 427 F.3d 1278 (10th Cir. 2005);
Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir.
2005); Concerned Area Residents for Environment v. Southview
Farm, 34 F.3d 114 (2d Cir. 1994); Committee To Save Mokelumne
River v. East Bay Municipal Utility District, 13 F.3d 305 (9th
Cir. 1993); Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.
1991); Alaska Community Action on Toxics v. Aurora Energy
Services, LLC, 940 F. Supp. 2d 1005 (D. Alaska 2013); San
Francisco Baykeeper v. West Bay Sanitary District, 791 F. Supp.
2d 719 (N.D. Cal. 2011); and United States v. Velsicol Chemical
Corp., 438 F. Supp. 945 (W.D. Tenn. 1976).
These cases, many of which were cited in the County’s
papers, do not directly address the County’s point source theory.
Some of the cases involve sequential point sources, and some
consider whether groundwater itself constitutes a point source,
but none actually holds that a pollutant’s indirect journey to
navigable waters must be through a series of point sources.

12

At the hearing on this matter, the County articulated
its position by saying that it could only be liable under the
Clean Water Act if a pollutant from well 1 and/or well 2
ultimately reached navigable waters through a point source.

Even

assuming this particular articulation could be said to have been
included in what the County advanced in its papers, the County
fails to cite any binding authority for that proposition.
Additionally, exempting discharges of pollutants from a point
source merely because the polluter is lucky (or clever) enough to
have a nonpoint source at the tail end of a pathway to navigable
waters would undermine the very purpose of the Clean Water Act.
The County’s present expansion of arguments made during
earlier proceedings does not establish a basis for this court to
read the point source requirement for wells 1 and 2 differently
from the requirement for wells 3 and 4.

The statutory language

at issue includes no suggestion that a pollutant taking an
indirect path from a well to the ocean must pass through “a
series of sequential point sources.”
# 3710.

See ECF No. 125, PageID

The Clean Water Act prohibits “any addition of any

pollutant to navigable waters from any point source.”
§ 1362(12).

33 U.S.C.

Neither this language nor the statutory definition

of “point source” supports the County’s theory.
This court rests on the analysis set forth in its order
addressing wells 3 and 4.

Adopting the County’s interpretation

13

of the point source requirement would erode the Clean Water Act’s
prohibition on discharges of pollutants without an NPDES permit.
It would be nonsensical to regulate a polluter that discharges
effluent to the ocean through a series of sequential point
sources, while exempting a polluter that discharges the same
effluent through a combination of an initial point source and
subsequent nonpoint sources.

In both situations, pollutants are

discharged into navigable waters from point sources.

There is no

basis for distinguishing between the two.
This court’s rejection of the County’s interpretation
of the point source requirement by no means “nullifie[s] the
meaning of point source” or “read[s] the point source requirement
out of the statute,” as the County contends.

ECF No. 125, PageID

# 3713, 3714 (internal quotation marks omitted).
wells are indisputably point sources.

The injection

See ECF No. 125, PageID

# 3715 (“The LWRF injection wells are the only confined and
discrete conveyances here.
includes well).”).

33 U.S.C. § 1362(14) (point source

The County’s discharge of effluent into the

injection wells satisfies the point source requirement, the only
disputed issue before this court on the present motions.
The parties’ discussions concerning the location and
expanse of the pollutant’s entry into the ocean and the harm, or
lack thereof, resulting from discharge of the pollutants, are
irrelevant to the County’s liability.

14

See, e.g., Comm. To Save

Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th
Cir. 1993) (“[T]he Act categorically prohibits any discharge of a
pollutant from a point source without a permit.

Thus, the

factual issue raised by defendants concerning the historical
level of pollution compared to the current level of pollution is
not material to the resolution of the Committee’s claim, and
therefore does not preclude summary judgment on the issue of
liability.” (citations omitted)).

This court sees no need to

address those arguments on the present motions, which go solely
to the issue of whether the County is liable.
Because Plaintiffs meet the point source requirement,
and because there is no dispute regarding any of the other
elements necessary for liability under the Clean Water Act, this
court concludes that there is no genuine issue of material fact
precluding a finding that the County is liable for discharges
from wells 1 and 2 without an NPDES permit.
C.

Requests to Strike Evidence.

Both parties request that this court strike opposing
experts’ statements.

See ECF No. 138, PageID # 4851; ECF No.

140, PageID # 5322; ECF No. 145.

Whether this court considered

the challenged evidence or not, the court’s ruling would be
unchanged.

This court in actuality does not deem the challenged

material necessary to deciding the summary judgment motions
before it.

The requests to strike are denied on the ground that

15

parsing the assertions in those requests will have no impact on
the summary judgment motions.
VI.

CONCLUSION.
Plaintiffs’ motion for partial summary judgment is

granted and the County’s motion for partial summary judgment is
denied.
The requests for judicial notice are granted, and the
requests to strike evidence are denied.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 23, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

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

16