Hawaii Wildlife Fund et al v. County of Maui

Filing 456

ORDER REGARDING COUNTER MOTIONS FOR SUMMARY JUDGMENT re 431 , 439 . Signed by JUDGE SUSAN OKI MOLLWAY on 5/26/2021. (cib)

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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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/KJM
ORDER REGARDING COUNTER
MOTIONS FOR SUMMARY JUDGMENT

ORDER REGARDING COUNTER MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs Hawaii Wildlife Fund, Sierra Club, Surfrider
Foundation, and West Maui Preservation Association move for
summary judgment, arguing that the undisputed evidence
demonstrates that the County has violated the Clean Water Act by
discharging effluent, without a National Pollutant Discharge
Elimination System (“NPDES”) permit, at four injection wells at
the Lahaina Wastewater Reclamation Facility (“LWRF”).

Defendant

County of Maui also moves for summary judgment, arguing that
Plaintiffs lack admissible evidence of such a violation.
In adjudicating these motions, this court is guided by
the Supreme Court’s holding that the Clean Water Act requires an
NPDES “permit when there is a direct discharge from a point

source into navigable waters or when there is the functional
equivalent of a direct discharge.”

Hawaii Wildlife Fund, et al.

v. County of Maui, 140 S. Ct. 1462, 1476 (2020).

The Supreme

Court provided examples of when there would be and when there
would not be a “functional equivalent of a direct discharge,”
explaining that time and distance are important:
Where a pipe ends a few feet from navigable
waters and the pipe emits pollutants that
travel those few feet through groundwater (or
over the beach), the permitting requirement
clearly applies. If the pipe ends 50 miles
from navigable waters and the pipe emits
pollutants that travel with groundwater, mix
with much other material, and end up in
navigable waters only many years later, the
permitting requirements likely do not apply.
140 S. Ct. at 1476.
To provide guidance with respect to factual situations
that fall between the two examples, the court stated:
factors that may prove relevant (depending
upon the circumstances of a particular case):
(1) transit time, (2) distance traveled,
(3) the nature of the material through which
the pollutant travels, (4) the extent to
which the pollutant is diluted or chemically
changed as it travels, (5) the amount of
pollutant entering the navigable waters
relative to the amount of the pollutant that
leaves the point source, (6) the manner by or
area in which the pollutant enters the
navigable waters, (7) the degree to which the
pollution (at that point) has maintained its
specific identity. Time and distance will be
the most important factors in most cases, but
not necessarily every case.
Id., 140 S. Ct. at 1476–77.

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There appears to be no dispute that LWRF is a “point
source” or that the Pacific Ocean is a “navigable water.”

See

id. at 1478, Kavanaugh, J., concurring (“No one disputes that
pollutants originated at Maui’s wastewater facility (a point
source), and no one disputes that the pollutants ended up in the
Pacific Ocean (a navigable water).”).

The present motions

therefore turn on whether the LWRF’s discharge of treated
wastewater into its injection wells that then makes its way to
the Pacific Ocean is the “functional equivalent of a direct
discharge” from the LWRF into the Pacific Ocean.

Id.

To aid the court in deciding these motions, the parties
shall file answers to the following questions, using 25 words or
less for each answer, no later than June 9, 2021.

If a party

does not know or cannot provide the exact answer to a question,
the party shall provide the most accurate answer it can in light
of the record currently before the court.

Answers should

directly respond to the questions, rather than viewing the
questions as inviting discussion of related matters.

This court

will hold the parties to their answers.
In answering each question, the parties shall provide
the title or name of material relied on, along with the ECF No.
and the PageID # of evidence currently in the record that
supports each answer.

Parties are invited to provide record

citations to every piece of evidence in the record supporting any

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fact.
record.

Parties shall not cite anything not currently in the
Parties shall then attach a copy of the cited evidence

with the record citation (existing ECF No. and PageID #) visible
and legible under a corresponding tab (that is, not obscured at
the top of the page).

The record evidence shall be tabbed with

the tab label corresponding to the question number.

Only the

relevant page(s) cited (preferably limited to two pages per
citation) should be attached.
A Word version of the attached questions will be
emailed to the parties so that they may use such space as is
necessary to provide record citations.

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Question

Answer in 25 words or
less

1. Transit time:
1a. What is the
minimum documented
time (in days) for
treated wastewater
to move from LWRF
Wells 3 and 4 to
the Pacific Ocean?
1b. How long does
it take before
more than half of
the treated
wastewater
injected into LWRF
Wells 3 and 4 on a
particular day
reaches the
Pacific Ocean?
1c. What is the
minimum time that
it takes for
treated wastewater
to move from LWRF
Wells 1 and 2 to
the Pacific Ocean?
1d. How long does
it take before
more than half of
the treated
wastewater
injected into LWRF
Wells 1 and 2 on a
particular day
reaches the
Pacific Ocean?

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Title of
material

ECF No. and
PageID #

1e. Jean E. Moran,
Ph.D., opines that
the time required
for effluent from
Wells 1 and 2 to
reach the
nearshore ocean is
similar to that
from Wells 3 and
4. See Decl. of
Jean E. Moran,
Ph.D., ECF No.
432-22, PageID
# 10561. Is there
anything in the
record indicating
that this opinion
is correct or
incorrect?
2. Distance
traveled:
2a. What is the
minimum distance
that treated
wastewater flows
from LWRF Wells 1,
2, 3, and 4 to the
Pacific Ocean?
2b. What
percentage of
treated wastewater
from the LWRF
flows the minimum
distance to reach
the Pacific Ocean?
2c. What is the
approximate
distance traveled
by at least half
of the wastewater
flowing from LWRF
Wells 1, 2, 3, and
4 to the Pacific
Ocean?

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2d. What
percentage of
treated wastewater
from the LWRF
emerges from
submarine springs
at the North and
South Group Seeps?
2e. Is there any
dispute that more
than half of the
effluent from
Wells 3 and 4
emerges at the
seeps (even if
there is a dispute
about how much
more than half)?
2f. What
percentage of
treated wastewater
from the LWRF
emerges as diffuse
flow in the North
and South Group
Seep areas?
2g. What
percentage of
treated wastewater
from the LWRF
emerges within 1/2
mile of the North
and South Group
Seep areas?
2h. What
percentage of
treated wastewater
from the LWRF
emerges within 3/4
mile (straight
line) of the LWRF?
The percentage
should include any
percentage listed
in the response to
2g.
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2i. What
percentage of
treated wastewater
from the LWRF
emerges within
within 1 mile
(straight line) of
the LWRF?
2j. What
percentage of
treated wastewater
from the LWRF
emerges within
within 1.5 miles
(straight line)
of the LWRF?
2k. What
percentage of
treated wastewater
from the LWRF
emerges within
within 2 miles
(straight line)
of the LWRF?
3. Nature of the
material through
which the treated
wastewater
travels:
What is the nature
of the material
through which the
treated wastewater
travels from the
LWRF to the
Pacific Ocean?

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4. Dilution or
chemical change of
pollutant:
4a. To what extent
has the treated
wastewater been
diluted as it
travels from the
LWRF to the
Pacific Ocean?
4b. Leaving aside
any chemical
change occurring
at the injection
wells themselves
(e.g., by
treatment at the
wells), to what
extent has the
treated wastewater
been chemically
changed as it
travels from the
LWRF to the
Pacific Ocean?
What is the nature
of the change?
5. Amount of
pollutant entering
the Pacific Ocean:
5a. What is the
amount of treated
wastewater
entering the
Pacific Ocean
relative to the
amount of treated
wastewater leaving
the LWRF?

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5b. What is the
minimum number of
gallons of treated
wastewater from
the LWRF that
emerges every day
in the nearshore
water in and
around the North
and South Seep
groups?
6. Manner by or
areas in which
pollutant enters
the Pacific Ocean:
Describe the
manner by or areas
in which the
treated wastewater
from LWRF enters
the Pacific Ocean.
7. Degree
pollutant
maintains its
specific identity:
Describe the
degree to which
the treated
wastewater from
the LWRF emerging
in the Pacific
Ocean has
maintained its
specific identity.

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8. Is there any
dispute that there
are elevated water
temperatures near
the North and
South Seep
locations compared
to the nearshore
water further
north and south of
the seeps? If
there is no
dispute, is there
anything in the
record indicating
that the elevated
temperature could
have been caused
by something other
than the treated
wastewater finding
its way into the
Pacific Ocean?
9. Is there any
dispute that dye
running through a
hypothetical pipe
from the LWRF to
the Pacific Ocean
would take about
90 minutes to go
from LWRF to the
ocean?
10. Could surface
runoff and
reclaimed water
used at nearby
properties account
for some of the
chemicals detected
in the seeps?

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11. Each party may
add no more than
two other issues
that only that
party discusses,
but the party’s
position must be
stated in 25 words
or less per issue.

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

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

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

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