Hawaii Wildlife Fund et al v. County of Maui
ORDER DENYING MOTION TO DISMISS 8 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/8/12. -- "The court denies the motion to dismiss and the motion to strike exhibits.", re 8 ; 16 (emt, )CERTI FICATE 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
SIERRA CLUB-MAUI GROUP, a
SURFRIDER FOUNDATION, a nonprofit corporation; and
WEST MAUI PRESERVATION
ASSOCIATION, a Hawaii nonprofit corporation,
COUNTY OF MAUI,
CIVIL NO. 12-00198 SOM/BMK
ORDER DENYING MOTION TO
ORDER DENYING MOTION TO DISMISS
This is a citizen-suit enforcement action under the
Clean Water Act.
Plaintiffs Hawai`i Wildlife Fund, Sierra
Club-Maui Group, Surfrider Foundation, and West Maui Preservation
Association seek to require Defendant County of Maui to apply for
and comply with the terms of a Clean Water Act National Pollutant
Discharge Elimination System (“NPDES”) permit for injection wells
at the Lahaina Wastewater Reclamation Facility (“LWRF”).
wells allegedly discharge wastewater that migrates into the
The County of Maui has moved to dismiss this action.
See ECF No. 8.
As part of their response, Plaintiffs filed a
motion to strike Exhibits C and D.
See ECF No. 16.
have stipulated to the dismissal of the Second Claim for Relief
asserted in the Complaint.
See ECF No. 30.
The court denies the
motion to strike and denies the motion to dismiss.
The County of Maui operates the LWRF, which uses
injection wells to dispose of wastewater.
See Complaint ¶ 1; see
40 C.F.R. § 144.3 (an “injection well” is a “‘well’ into which
‘fluids’ are being injected”).
Plaintiffs allege that the LWRF
puts 3 to 5 million gallons of wastewater into four injection
wells on a daily basis.
Plaintiffs further allege that there are
subsurface pipes at the bottom of the wells that allow the
wastewater to mix with groundwater that flows into the ocean.
Id. ¶¶ 3, 43, 44.
According to Plaintiffs, the County of Maui
needs an NPDES permit for that discharge but has not even applied
for such a permit.
Id. ¶ 5.
Plaintiffs allege that the County of Maui acknowledged
in public hearings in 1973 that wastewater from the LWRF would be
discharged into the ocean.
Id. ¶ 45.
In an environmental
assessment done in 1991, the County of Maui allegedly agreed that
treated effluent (suspended solids, dissolved oxygen, nitrogen,
phosphorous) flows from the injection wells into the ocean.
In 2007, the University of Hawaii at Manoa allegedly
conducted a study that indicated an elevated level of a nitrogen
isotope in algae growing in nearshore waters south of the LWRF.
Plaintiffs say that the study concluded that the
nitrogen came from the LWRF.
Id. ¶ 49.
The United States Geological Survey also allegedly did
a study that determined that “wastewater injection plumes were
successfully detected in the ocean by nearshore wading surveys at
. . . Lahaina, Maui.”
Id. ¶ 51.
That study also allegedly found
elevated levels of a nitrogen isotope in ocean water samples,
which, according to Plaintiffs, is further evidence that
wastewater from the LWRF is reaching the ocean.
Id. ¶ 53.
Plaintiffs allege that in 2011 the Environmental
Protection Agency (“EPA”) put tracer dye into the injection wells
as part of a test.
Plaintiffs say that the dye was then found in
nearshore waters, confirming that wastewater from the LWRF was
reaching the ocean.
Id. ¶ 58.
The court takes judicial notice of a consent agreement
entered into by the County of Maui and the EPA in August 2011
regarding the injection wells and compliance with the Safe
Drinking Water Act, 42 U.S.C. §§ 300h-2(c), 200j-4(a).
This consent agreement did not discuss whether an NPDES
permit was needed for the injection wells under the Clean Water
Act, although the consent agreement required the County of Maui
to obtain a water quality certification under section 401 of the
Clean Water Act from the State of Hawaii.
Id. ¶ 25.
to the settlement agreement, the County of Maui applied for that
certification, and the State of Hawaii is currently processing
Id. ¶ 26.
Clean Water Act Framework.
The Clean Water Act was intended by Congress “to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.”
33 U.S.C. § 1251(a).
further that objective, the Clean Water Act prohibits the
“discharge of any pollutant” unless certain provisions of the
Clean Water Act are complied with.
See 33 U.S.C. § 1311(a);
Natural Res. Defense Council, Inc. v. County of Los Angeles, 673
F.3d 880, 885 (9th Cir. 2011), cert. granted on other grounds, __
S. Ct. __, 2012 WL 2368688 (June 25, 2012).
The Clean Water Act
defines “discharge of a pollutant” as “any addition of any
pollutant to navigable waters from any point source.”1
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.”
U.S.C. § 1362(7). The Supreme Court says:
The Clean Water Act allows discharges of pollutants
when an NPDES permit is obtained and complied with.
U.S.C. § 1342.
Given this statutory framework, 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).
The Complaint’s First Claim for Relief asserts that the
County of Maui was required to obtain an NPDES permit for the
wastewater it puts into the injection wells at the LWRF.
motion, the County of Maui is not contesting whether its disposal
of wastewater into the injection wells at LWRF qualifies as a
discharge of pollutants from a point source.
The County of Maui
the phrase “the waters of the United States” includes
only 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.” See Webster’s Second 2882. The phrase does
not include channels through which water flows
intermittently or ephemerally, or channels that
periodically provide drainage for rainfall.
Rapanos v. United States, 547 U.S. 715, 739 (2006).
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).
instead argues that it is not discharging pollutants into
Whether a discharge of wastewater into an
injection well qualifies as a discharge of pollutants into
navigable waters depends on the circumstances.
The Ninth Circuit faced a similar issue in Northern
California River Watch v. City of Healdsburg, 496 F.3d 993 (9th
In that case, a waste treatment plant 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 Ninth Circuit
stated that 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
Id. at 997.
The Ninth Circuit examined various Supreme Court
precedents in determining whether Basalt Pond qualified as
Citing Solid Waste Agency of Northern Cook
County v. United States Corps of Engineers, 531 U.S. 159 (2001),
the Ninth Circuit noted that isolated ponds and mudflats that
lack a “significant nexus” to navigable waters are not subject to
the Clean Water Act.
See Healdsburg, 496 F.3d at 998.
The Ninth Circuit then examined Rapanos v. United
States, 547 U.S. 715 (2006).
In that 4-4-1 plurality opinion,
the plurality stated that only wetlands with a continuous surface
connection to bodies of water are “waters of the United States”
protected under the Clean Water Act.
Rapanos, 547 U.S. at 742.
The dissent would have ruled that even wetlands not directly
adjacent to navigable waters, but adjacent to tributaries of
navigable waters, are protected under the Clean Water Act because
they have the requisite “significant nexus”.
Id. at 797.
Justice Kennedy, concurring with the plurality, examined whether
there was a hydrologic connection sufficient to establish a
See id. at 786.
The Ninth Circuit read
Justice Kennedy’s concurrence as providing the controlling rule.
Healdsburg, 496 F.3d at 999-1000.
The Ninth Circuit noted that a
“mere hydrological connection” could be too insubstantial to
provide the required nexus.
Id. at 1000.
Focusing on the need
for a “significant nexus,” the Ninth Circuit noted that any
connection had to be evaluated in light of the Clean Water Act’s
goals of restoring and maintaining the chemical, physical, and
biological integrity of the nation’s waters.
Circuit concluded that Basalt Pond had a “significant nexus” to
navigable waters, “not only because the Pond waters seep into the
navigable Russian River, but also because they significantly
affect the physical, biological, and chemical integrity of the
Id. at 995.
The County of Maui argues that this court should
refrain from adjudicating Plaintiffs’ claim under the primary
Because the EPA and the State of Hawaii
Department of Health are allegedly assessing whether an NPDES
permit is required, the County of Maui seeks dismissal of or a
stay of this case.
Under the primary jurisdiction doctrine, courts may
stay proceedings when issues involved in the proceedings are
within the jurisdiction of and under consideration by an
administrative agency with extensive regulatory powers over the
matter and the parties involved.
See Indus. Commc’n Sys. v. Pac.
Tel. & Tel. Co., 505 F.2d 152, 156 (9th Cir. 1974).2
the issue to the administrative agency does not deprive the court
of jurisdiction; it has discretion either to retain jurisdiction
or, if the parties would not be unfairly disadvantaged, to
dismiss the case without prejudice.”
U.S. 258, 269-69 (1993).
See Reiter v. Cooper, 507
Accord Suntek v. Semiconductor Co. v.
A stay may also be ordered under the court’s inherent power
to control its own docket See Landis v. North Am. Co., 299 U.S.
248, 254-55 (1936) (“the power to stay proceedings is incidental
to the power inherent in every court to control the disposition
of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants. How this can best be
done calls for the exercise of judgment, which must weigh
competing interests and maintain an even balance”); Mediterranean
Enter. v. Ssyangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983)
(the “trial court possesses the inherent power to control its own
docket and calendar”).
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.
Rather, it 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.”).
In support of its primary jurisdiction doctrine
argument, the County of Maui submits a nonprofit organization’s
May 2012 newsletter called “Environment Hawaii.”
represented that, according to David Albright, manager of the
groundwater and underground injection control program for the
EPA, it was too soon to determine whether the LWRF dye tests
would trigger an NPDES permit requirement.
See ECF No. 8-6.
Albright was also quoted in an Associated Press article on April
17, 2012, as saying that the EPA was cooperating with others “to
collect the best science we can to make whatever further
decisions need to be made.”
See ECF No. 8-5.
For purposes of
deciding the present motion, the court is not treating these
hearsay statements as indicating the EPA’s position.
the court is not admitting those statements as evidence.
court therefore sees no need to grant Plaintiffs’ motion to
strike the exhibits containing Albright’s alleged statements.
Even if the court did consider Albright’s statements,
the court would conclude that the County of Maui fails to show
that the primary jurisdiction doctrine applies here.
Allbright supposedly said was that the EPA was waiting for
further information before determining what might be required.
Albright does not indicate that the EPA will indeed decide any
issue that is before this court.
At most, even if considered,
Albright’s statements suggest a possible decision relating to an
Thus, the statements do not demonstrate that the
issues involved in this proceeding are within the jurisdiction of
and presently under consideration by the EPA.
On the present
record, the court cannot conclude that the primary jurisdiction
See Indus. Commc’n Sys., 505 F.2d at 156.
In rejecting the primary jurisdiction doctrine argument
as raised in this motion, the court is not foreclosing the
possibility that it may deem the doctrine applicable on a
The County of Maui also asserts that Plaintiffs’ claim
that it should seek an NPDES permit is not ripe.
The County of
Maui says that, as demonstrated by the consent agreement, it is
currently going through a Safe Drinking Water Act permitting
process and that, once that process is completed, new permits
with possible new terms and conditions might allay Plaintiffs’
The ripeness doctrine prevents courts, through
avoidance of premature adjudication, from becoming entangled in
Oklevueha Native Am. Church of Hawaii,
Inc. v. Holder, 676 F.3d 829, 835 (9th Cir. 2012).
both a constitutional and a prudential component.
constitutional component mandates that, prior to exercising
jurisdiction, a court have before it a case or controversy that
makes the issues presented definite and concrete, not
hypothetical or abstract.
The prudential component requires
a court to consider the fitness of the issues for judicial review
along with the hardship to the parties of withholding court
Id. at 837.
The County of Maui argues that Plaintiffs’ Clean Water
Act claims are not ripe because the EPA and the State of Hawaii
are examining the injection wells under the Safe Drinking Water
This court disagrees with the County.
contend that the County of Maui is violating the Clean Water Act
by failing to have an NPDES permit.
This court is not persuaded
by the County of Maui’s argument that, because the EPA is already
supervising the injection wells under the Safe Drinking Water
Act, “the Court can be reassured that . . . the County is
protecting the public from any potential harmful contact with
The Clean Water Act is concerned with more than
assuring that the public has safe drinking water.
It aims “to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.”
33 U.S.C. § 1251(a).
if, as the County of Maui contends, compliance with the Clean
Water Act will be expensive and impractical, compliance is not
excused by compliance with a separate federal law.
River Fisherman’s Ass’n v. City of New York, 751 F. Supp. 1088,
1100 (S.D.N.Y. 1990) (“Clearly, the Safe Drinking Water Act does
not provide adequate justification for ignoring the express and
unambiguous directive of the previously adopted Clean Water Act.
The objective of the Clean Water Act is to preserve the
environmental integrity of navigable waters, while the objective
of the Safe Drinking Water Act is to prescribe minimum national
standards concerning the purity of drinking water for the
protection of the public health.
[is] mutually exclusive.”).
Neither of these objectives
Accord Bath Petroleum Storage, Inc.
v. Sovas, 309 F. Supp. 2d 357, 369 (N.D.N.Y. 2004) (stating that
the Safe Drinking Water Act does not preempt the Clean Water Act
and noting that compliance with a Safe Drinking Water Act
Underground Injection Control permit does not excuse compliance
with other acts).
Nor does this case lack ripeness because the County of
Maui has applied for a Clean Water Act section 401 water quality
On the present motion, the County of Maui fails
to demonstrate the meaning of such an application.
That is, the
County of Maui fails to demonstrate that, if it receives the
requested water quality certification, it need not obtain an
Finally, the County of Maui is unpersuasive in arguing
that further studies might reveal that an NPDES permit is
Plaintiffs have alleged that the County of Maui’s
discharge of wastewater into the injection wells causes
pollutants to flow into the ocean.
Plaintiffs have further
alleged that this is shown by several studies.
For purposes of
this facial challenge to jurisdiction, the court assumes the
facts alleged in the Complaint to be true.
See Fed’n of African
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996) (when a motion to dismiss attacks the allegations of the
complaint as insufficient to confer subject matter jurisdiction,
all allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.); St. Clair
v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (whether a
case is ripe goes to the court’s subject matter jurisdiction).
For purposes of this motion, Plaintiffs have sufficiently alleged
a significant nexus between the County of Maui’s discharge of
pollutants and the ocean such that this action survives the
present motion to dismiss.
It may well be that studies will show
no such significant nexus.
However, any such ongoing or future
study does not render this action unripe.
The County of Maui seeks dismissal of the Complaint
under Rule 12(b)(7) of the Federal Rules of Civil Procedure,
arguing that Plaintiffs have failed “to join a party under Rule
19” of the Federal Rules of Civil Procedure, which governs
compulsory joinder in federal district courts.
EEOC v. Peabody
W. Coal Co., 400 F.3d 774, 778 (9th Cir. 2005).
part, Rule 19(a) provides:
A person who is subject to service of process
and whose joinder will not deprive the court
of subject-matter jurisdiction must be joined
as a party if:
(A) in that person’s absence, the court
cannot accord complete relief among existing
(B) that person claims an interest relating
to the subject of the action and is so
situated that disposing of the action in the
person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
The County of Maui argues that both the EPA and the
Department of Health (“DOH”), the state agency that administers
the Clean Water Act’s NPDES program, must be joined as parties.
However, the Ninth Circuit has already rejected that argument.
See Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor
Res., Inc., 299 F.3d 1007, 1014 (2002) (ruling in a Clean Water
Act case involving a citizen suit regarding an NPDES permit that
“federal and state agencies administering federal environmental
laws are not necessary parties in citizen suits to enforce the
federal environmental laws”).
The County of Maui argues that complete relief cannot
be afforded without the presence of the EPA or the DOH.
Plaintiffs are successful, this court could order the County of
Maui to apply for and obtain an NPDES permit.
The court does not
view itself as limited to issuing an order permanently shutting
down the injection wells in the absence of a permit.
fines requested in the Complaint have not been shown by the
County of Maui to be unavailable as an additional remedy.
has the County of Maui shown that this court lacks the power to
hold it in contempt if it were to violate a court order.
short, dismissal is not required just because the EPA and DOH are
Citizen suits under the Clean Water Act are allowed
pursuant to 33 U.S.C. § 1365(a).
However, no such citizen suit
“may be commenced . . . if the Administrator or State has
commenced and is diligently prosecuting a civil or criminal
action in a court of the United States, or a State to require
compliance with the standard, limitation, or order, but in any
such action in a court of the United States any citizen may
intervene as a matter of right.”
33 U.S.C. § 1365(b)(1)(B).
The County of Maui points to the consent agreement
between the EPA and the County of Maui as triggering the
protection of § 1365(b)(1)(B) and requiring dismissal of the
What the County of Maui fails to show is that either
the EPA or the State of Hawaii has commenced a court action to
require compliance with an effluent limitation of the Clean Water
Nothing in the record indicates that any entity is
diligently prosecuting the County of Maui for a Clean Water Act
It may well be that there is some overlap between the
standards required by the Safe Drinking Water Act consent
agreement and the effluent limitations under the Clean Water Act,
but the County of Maui fails to show that § 1365(b)(1)(B) applies
in the absence of an ongoing Clean Water Act court case by either
the EPA or the State of Hawai.
The court denies the motion to dismiss and the motion
to strike exhibits.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 8, 2012.
/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 MOTION TO DISMISS
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