Hawaii Wildlife Fund et al v. County of Maui

Filing 468

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 431 , 439 - Signed by JUDGE SUSAN OKI MOLLWAY on 7/15/2021. Based on th e undisputed evidence that the County discharged tens of thousands of gallons of wastewater from the LWRF into the Pacific Ocean on a daily basis at a few monitored seep vents, and balancing the factors set forth by the Supreme Court, as well as the additional volume factor that this court added, this court concludes that the LWRF must have an NPDES permit. The discharge from the County's injection wells into the groundwater and ultimately into the ocean is the functional equivalent of a di rect discharge such that it triggers the NPDES permit requirement. The court would reach this same conclusion even if it did not consider the raw-volume-of-pollutant factor. Summary judgment is therefore granted in favor of Plaintiffs and against the County. This order does not address the remedies for the County's Clean Water Act violation. The parties earlier entered into a Settlement Agreement and Order re: Remedies. See ECF No. 256 . No later th an July 21, 2021, each side shall file a statement as to whether this or any other agreement regarding remedies is in effect or whether remedies for the County's violation of the Clean Water Act still need to be addressed. In the meantime, this case remains pending. Given this ruling, the court directs the Clerk of court to vacate the trial date and all pretrial deadlines, leaving only the remedies memorandum deadline for the parties to comply with at this time. (jo)

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

CIVIL NO. 12-00198 SOM/KJM
ORDER GRANTING PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT;
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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

INTRODUCTION.
The dueling summary judgment motions before this court

come with voluminous stacks of paper.

Within those stacks there

are, as one would expect, factual disputes.

But some of the

disputes pertain to matters that are immaterial to the present
order, and some of the disputes concern matters that no one could
establish, even in the most thorough of trials.

Under those

circumstances, a trial is not warranted.
This court, viewing all facts in the light most
favorable to Defendant County of Maui and drawing all reasonable
inferences in favor of the County, concludes that the County must
obtain a permit under the Clean Water Act consistent with the

analysis established by the Supreme Court.

The court grants the

summary judgment motion filed by Plaintiffs Hawaii Wildlife Fund,
Sierra Club, Surfrider Foundation, and West Maui Preservation
Association, and denies the summary judgment motion filed by the
County.
Anyone who proposed to stand at the shoreline and empty
directly into the ocean each day thousands of large drums filled
with pollutants would be required to get a National Pollutant
Discharge Elimination System (“NPDES”) permit under the Clean
Water Act.

The central question in this case is whether the

County is violating the Clean Water Act in having failed to
obtain an NPDES permit while releasing pollutants, not by pouring
them directly into the Pacific Ocean, but instead by introducing
the pollutants into injection wells at the Lahaina Wastewater
Reclamation Facility (“LWRF”) half a mile from the ocean.
The parties in this lawsuit agree that millions of
gallons of treated wastewater travel from those injection wells
through groundwater, and that 100 percent of that wastewater
finds its way into the ocean, although with certain components,
like nitrogen, being reduced before the wastewater reaches the
ocean.

Monitors at a handful of small locations near the

shoreline have detected less than 2 percent of the wastewater
from two of the four wells.

No scientific study conclusively

establishes the path of the other 98 percent of the wastewater
that the parties agree is reaching the ocean.
2

But even if this

court looks only at that less-than-2-percent, that is still tens
of thousands of gallons of pollutant-containing wastewater
entering the ocean every day.

Millions of gallons enter the

ocean every year at just the handful of monitored points.

While

the court cannot point to the exact path of the rest of the
wastewater or map every drop of that remaining 98 percent, it is
likely that that remainder is entering the Pacific Ocean within a
few miles at most of the LWRF.

That less-than-2-percent is still

an enormous amount of pollutant being put into the ocean in the
functional equivalent of a direct discharge.

An NPDES permit is

required.
Accordingly, the court grants the motion for summary
judgment filed by Plaintiffs, which seeks a determination that
the County of Maui, which owns and operates the LWRF, has
violated the Clean Water Act by failing to obtain an NPDES permit
for its discharge of wastewater into the Pacific Ocean.

The

court denies the County of Maui’s motion summary judgment, which
argues that Plaintiffs lack admissible evidence of such a
violation.
II.

BACKGROUND.
Since 2006, the County of Maui has owned and operated

the LWRF, a wastewater treatment facility on the island of Maui,
without an NPDES permit.

See Defendant County of Maui’s Answer

to First Amended Complaint, ECF No. 41, PageID #s 451-52; ECF No.
137, PageID # 4542 (admitting in connection with a previous
3

motion that the County does not have an NPDES permit for the
LWRF).

The LWRF is located approximately half a mile from the

Pacific Ocean.

See ECF No. 432-24, PageID # 10592; ECF No. 432-

37 (picture showing LWRF location relative to ocean).
The County puts 3 to 5 million gallons of treated and
disinfected wastewater per day into four injection wells at the
LWRF.

See ECF No. 41, PageID # 455; Consent Agreement, In re

County of Maui, ECF No. 432-3, PageID #s 10377-78.

The County

began discharging wastewater into Wells 1 and 2 in May 1982.
began discharging wastewater into Wells 3 and 4 in 1985.

It

It

discharges wastewater into some or all of the wells on a daily
basis.

See First Amended Complaint ¶ 43, ECF No. 36, PageID

# 374; Answer to First Amended Complaint ¶ 21, ECF No. 41, PageID
# 455 (admitting same).
According to the Final Report of June 2013 Lahaina
Groundwater Tracer Study, the LWRF serves the city of Lahaina,
receiving about 4 million gallons of sewage every day from
approximately 40,000 people, filtering and disinfecting it, and
then releasing the treated wastewater into the injection wells.
See ECF No. 432-24, PageID # 10595.

The June 2013 Tracer Dye

Study assumed that 2.5 million gallons of the total of 4 million
gallons went into Wells 3 and 4 every day.1
1

See id., PageID

On March 15, 2021, the County filed a motion seeking to
exclude parts of the 2013 Tracer Dye Study as unreliable and
seeking to exclude expert opinions relying on the challenged
parts of the study under Daubert v. Merrill Dow Pharmaceuticals,
4

# 10671.

This assumption matches the evidence this court has

regarding the period from 2011 to 2013.

See ECF No. 440-28,

PageID # 11213 (including Figure 1-5 with monthly averages for
all four wells for the period from April 2011 through March
2013).

According to daily usage logs, in January 2012, the LWRF

put an average of 1.248 and 1.506 million gallons of wastewater
into Wells 3 and 4, respectively, every day.
PageID # 2453.

See ECF No. 73-31,

Similarly, for a period in November and December

2014, the LWRF put an average of 1.555 and 2.904 million gallons
of wastewater into Wells 3 and 4, respectively, every day.

See

ECF No. 432-7.
In 2015, several years after this case was filed, the
LWRF decreased its use of Wells 3 and 4 and increased its use of
Wells 1 and 2.

See ECF No. 432-7, PageID # 10422 (in 2015, Wells

3 and 4 averaged 983,000 and 400,000 gallons per day,
respectively), PageID # 10429 (in 2016, Wells 3 and 4 averaged
636,000 and 91,000 gallons per day, respectively), PageID # 10436
(in 2017, Wells 3 and 4 averaged 651,000 and 111,000 gallons per
day, respectively), PageID # 10443 (in 2018, Wells 3 and 4

509 U.S. 579 (1993). See ECF No. 422. On April 7, 2021, this
court denied that motion. See ECF No. 438. In ruling on the
present motions, this court does not rely on any part of the
study to which the County has identified a challenge. Instead,
this court relies only on parts of the study to which no
challenge has been raised. The County has never suggested that
the study is entirely invalid. Indeed, in earlier proceedings
before this court, the County raised no challenge to any part of
the study.
5

averaged 468,000 and 145,000 gallons per day, respectively),
PageID # 10450 (in 2019, Wells 3 and 4 averaged 519,000 and
155,000 gallons per day, respectively), PageID # 10457 (in 2020,
Wells 3 and 4 averaged 89,000 and 118,000 gallons per day,
respectively).

The volume of wastewater placed into the

particular wells has thus varied significantly over time.

See

Decl. of Richard Kraft, PG, CEG, Chg (CA) (the County’s expert),
ECF No. 440-3, PageID # 11093.
Once placed in the wells, the wastewater travels
approximately 200 feet underground into a shallow groundwater
aquifer beneath the facility.

See 1993 Injection Well Report,

ECF No. 432-26, PageID # 10737; Consent Agreement, ECF No. 432-3,
PageID # 10379.

According to one of the County’s experts who is

a hydrologist and geologist, that aquifer is “a diverse
assemblage of volcanic rock below the freshwater aquifer lens.”
The wastewater in the aquifer encounters saline and brackish
water at depths of 88 to 258 feet.
3, PageID # 11080-81.

See Kraft Decl., ECF No. 440-

A Lahaina Wastewater Reclamation Status

Report dated July 2011 indicates that, from 0 to 30 feet below
the surface, the material is “Ewa silty clay loam.”

The status

report also says that, from 30 to 75 feet below the surface, the
material is limestone and that, for depths greater than 75 feet,
the material is “fractured layers of Wailuku lava basalt.”
ECF No. 432-25, PageID # 10724.

See

The treated wastewater mixes

with groundwater and then flows horizontally and vertically into
6

the ocean through the porous aquifer.

Id., PageID # 11081-82;

ECF No. 44027, PageID # 11212.
There is no dispute that the wastewater put into all
four injection wells finds its way to the Pacific Ocean.

See

Final Environmental Impact Statement for Construction of Sewage
Collection System and Waste Water Reclamation Plant, Lahaina,
Maui, Hawaii, ECF No. 432-4, PageID #10397 (noting that the LWRF
wastewater “will eventually reach the ocean”); ECF No. 137,
PageID # 4542 (County admitting in connection with a previous
motion that the “groundwater into which LWRF Injection Wells 1
and 2 discharge conveys wastewater to the Pacific Ocean”);2 Decl.
of Jean E. Moran (the Plaintiffs’ expert, a hydrologist and
geochemist), ECF No. 432-22, PageID # 10578 (“In my opinion, 100%
of wastewater injected into any of the LWRF wells will discharge
into the adjacent Pacific Ocean.”); Depo. of Richard Kraft (the
County’s hydrologist and geologist), ECF No. 432-9, PageID
# 10475 (agreeing with the statement that “100 percent of
wastewater injected into any of the LWRF wells will discharge in
the adjacent [P]acific [O]cean”); Remote Deposition by Videoconf.
of Ericson John List (the County’s expert, a civil engineer), ECF

2

In the County’s Reply Statement of Facts, the County says
that no study has established that wastewater from Wells 1 and 2
goes into the Pacific Ocean. See ECF No. 445, PageID # 11599.
But even if there is no such study, the County has admitted that
“groundwater into which LWRF Injection Wells 1 and 2 discharge
conveys wastewater to the Pacific Ocean.” ECF No. 137, PageID
# 4542. This court holds the County to that admission.
7

No. 432-10, PageID # 10483 (“If you’re on an island, everything
you put into the ground that doesn’t evaporate goes into the
ocean.

So if you’re injecting wastewater into – treated

wastewater into the aquifer, it’s all going to end up in the
ocean.

There’s no place else for it to go.”); Expert Report of

Ericson John List (the County’s expert), ECF No. 432-31, PageID
# 10829 (“All waters that infiltrate the soil on an island must
ultimately find their way to the sea either in the form of stream
flows or via SS and diffuse flow at the shoreline or within
adjacent coastal waters. . . .

The effluent3 injected into the

aquifer is no different in this respect; it must ultimately find
its way to the sea.”); Decl. of Adina Paytan (Plaintiffs’ expert,
an oceanographer), ECF No. 432-32, PageID # 10855 (“all of the
treated wastewater (100%) that is injected into any of the four
LWRF injection wells enters the Pacific Ocean”).
The June 2013 Tracer Dye Study conducted jointly by the
EPA, the Hawaii Department of Health, the U.S. Army Engineer
Research and Development Center, and researchers at the
University of Hawaii concluded that wastewater put into Wells 3
and 4 finds its way to the Pacific Ocean, emerging through
“submarine springs” in the waters off Kahekili Beach about half a

3

The record sometimes refers to “injectate” or “effluent”
that goes into the LWRF’s injection wells or into the ocean.
This court uses “wastewater” when referring to the treated sewage
that the LWRF puts into its injection wells or when describing
the discharge into the Pacific Ocean.
8

mile from the LWRF.

ECF No. 432-24, PageID # 10594; see also

Geosync Consultants Expert Report (prepared for the County), ECF
No. 432-29, PageID # 10781 (stating that the distance from Well 4
to the nearshore beach is approximately 0.3 miles); ECF No. 44045 (noting that it is 821 meters from the LWRF to the north seep
group and 932 meters from the LWRF to the south seep group, with
the north and south seep groups located in the nearshore ocean
waters); Decl. of Adina Paytan, Ph.D. (Plaintiffs’ expert), ECF
No. 432-32, PageID # 10842 (indicating that wastewater travels
0.85 kilometers (0.5 miles) from Wells 3 and 4 to the Pacific
Ocean and that wastewater from Wells 1 and 2 travels slightly
farther, as those wells are located slightly farther away from
the ocean than Wells 3 and 4).
The court recognizes that wastewater may flow
horizontally and vertically through the aquifer, not necessarily
in a straight line from the LWRF to the ocean.

Even so,

Plaintiffs’ expert says the distance does not exceed 1.5 miles.
See Decl. of Jean E. Moran, Ph.D., ECF No. 432-22, PageID
# 10566.

Another of Plaintiffs’ experts, Robert B. Whittier,

says that, because of its “buoyancy, the warm, non-saline LWRF
injectate rises from the brackish and saline zone into the
freshwater zone near to the injection well, long before the
injected effluent plume reaches the coast.”

See Decl. of Robert

B. Whittier, ECF No. 444-1, PageID # 11406.

Whittier opines

that, as a result, the wastewater is discharged “to the coastal
9

and submarine discharge zones” and not to “deeper layers of
saline and brackish water” that may emerge offshore at depths of
at least 30 to 50 feet.

Id.; see also Groundwater Availability

in the Lahaina Dist., W. Maui, Haw. Fig. 7, ECF No. 432-30,
PageID # 10826 (showing where freshwater, brackish water, and
saltwater are discharged into the ocean).

The County’s expert

says the wastewater travels from the LWRF to the ocean through
various paths with a minimum distance ranging from 0.3 to 1.3
miles.

See Geosync Consultants Expert Report, ECF No. 432-29,

PageID #s 10781, 10786.
The 2013 Tracer Dye Study involved placing Fluorescein
tracer dye into Wells 3 and 4 on July 28, 2011.
24, PageID # 10606.

See ECF No. 432-

According to that study, the “treated

wastewater discharges from the sea floor mixed with other marine
and fresh waters predominantly as diffuse flow (>90%), but also
through a patchwork of hundreds of very small (ca. 5 cm2)
submarine springs.”4

Id., PageID # 10594.

These submarine

springs were generally located in two areas--1) the north seep
group, which was approximately 3 to 5 meters offshore and 3,180
square meters in area; and 2) the south seep group, which was
approximately 25 meters offshore and 7,000 square meters in area.
The researchers placed small monitors, called piezometers, at

4

The 2013 Tracer Dye Study referred to diffuse flow or
diffuse seepage when “vents could not be identified.” ECF No.
432-24, PageID # 10602.
10

three to four locations in the north seep area and three to four
locations in the south seep area and monitored them for tracer
dye.

See id., PageID #s 10597, 10624-27; Decl. of Ericson John

List (the County’s expert, a civil engineer), ECF No. 440-1,
PageID #s 11063-64.

The monitors themselves only covered 0.327

square meters of the combined 10,180 square meters of the north
and south seep groups.

See List Decl., ECF No. 440-2, PageID

# 11064.
The 2013 Tracer Dye Study noted that more than 90
percent of the discharge within the two seep groups occurred
through diffuse flow.
10668.

See ECF No. 432-24, PageID #s 10602,

The County questions the accuracy of the 90 percent

figure, arguing that we cannot know what percentage of the
discharge within the two seep groups occurs through diffuse flow
because no measurements have been taken.

See List Decl., ECF No.

440-2, PageID # 11064 (stating that diffuse flow is not limited
to the seep groups and may “occur anywhere along the west-Maui
coast”).

One of the County’s experts says the treated wastewater

does not only seep into the Pacific Ocean in the locations
identified by the 2013 Tracer Dye Study, but also “flow[s]
diffusely along the length of the west-Maui coast near Kahekili
Beach, as well as farther offshore in deeper water,” encountering
different conditions on that journey.
3, PageID #s 11083-84, 11089-90.

11

Kraft Decl., ECF No. 440-

List concurs that “[d]iffuse

flow can occur anywhere along the west-Maui coast” and that it is
not limited to the north and south seep groups.

See Decl. of

Ericson John List, Ph.D., ECF No. 440-2, PageID # 11064.
The 2013 Tracer Dye Study also indicated that the
temperature of the water and the amount of sewage-derived
nitrogen isotope (ä15 N) are higher in and to the immediate south
of the seeps (“Seep Area”) than in the water surrounding the rest
of West Maui.

See Figure ES-6, ECF No. 432-24, PageID # 10626;

See also Paytan Decl., 432-32, PageID # 10857.

For example, the

temperature of the water in the Seep Area was 26.8 degrees
Celsius (80.24 degrees Fahrenheit), and the temperature of other
nearshore waters was 26.0 degrees Celsius (78.8 degrees
Fahrenheit).
Paytan, an oceanographer who is one of Plaintiffs’
experts, says the groundwater coming from the submarine springs
is warmer than the ambient seawater and that, in the usual case,
discharged water is cooler than the seawater.
ECF No. 432-32, PageID # 10856.

See Paytan Decl.,

Robert B. Whittier, another

expert for Plaintiffs, agrees: “The ocean is a large reservoir
relative to the groundwater, so it takes a large amount of
groundwater input to result in a change of sea surface
temperature and algal ä15 N composition.”
# 11414.

ECF No. 444-1, PageID

Accordingly, even though there is a dispute about how

much diffuse flow is occurring in the two seep areas, Plaintiffs

12

argue that the discharge is large enough to increase the
temperature of the water in the Seep Area by 0.8 degrees Celsius
(1.44 degrees Fahrenheit).
On the other hand, List, an engineer who is one of the
County’s experts, says that water samples at two seeps showed a
range of 29.2 to 34.9 degrees Celsius (84.56 to 94.82 degrees
Fahrenheit) during the week of September 10, 2011.

He says that

the average temperature of the wastewater was 27.5 degrees
Celsius (81.5 degrees Fahrenheit).

He opines that the increased

temperature in the Seep Area is caused by geothermal forces,
rather than the discharge of the LWRF wastewater.

See Expert

Report of Ericson John List, ECF No. 137-2, PageID #s 4599-4600.
The 2013 Tracer Dye Study also estimated that about 64
percent of wastewater from Wells 3 and 4 discharges in the
nearshore water at the north and south seep group locations,
although the County questions the 64 percent estimation.
No. 432-24, PageID # 10594; ECF No. 422-1, PageID # 9789.

See ECF
It

appears that one of the study’s authors now thinks the number
might be 54 percent.

See ECF No. 422-1, PageID # 9795; see also

Observations of Nearshore Groundwater Discharge: Kahekili Beach
Park Submarine Springs, Maui, Hawaii, ECF No. 444-11, PageID
# 11542 (“Dye tracer experiments and geochemical mixing models
suggest that up to 96% (mean 62%) of the discharging vent water
can be sourced back to the LWRF injectate . . . .”); 2013 Tracer

13

Dye Study, Table ES-8, ECF No. 444-6, PageID # 11489 (stating
that the range of the LWRF wastewater discharged in submarine
springs is 53 percent to 96 percent, with an average of 62
percent).
Ericson John List, an expert retained by the County,
notes the total amount of dye “recovered” at the two seep groups
represented less than 2 percent of the total dye injected into
the wells and that exactly what happened to the other 98 percent
of the dye remains unknown.

See ECF No. 440-2, PageID # 11065;

Supplemental Expert Report of Ericson John List, ECF No. 440-20,
PageID # 11178.

While the 2013 Tracer Dye Study took

measurements only at the piezometers, List concedes that the dyed
wastewater also could have traveled as diffuse flow anywhere
along the West Maui coast.

See List Decl., ECF No. 440-2, PageID

# 11064; see also Lahaina Groundwater Tracer Study, ECF No. 43224, ECF No. 10601 (“there is significant groundwater discharge
along the coastline north and south of the submarine springs”);
Interim Lahaina Groundwater Tracer Study, ECF No. 440, PageID
# 11220 (“groundwater discharge commonly occurs along this ~5-km
stretch of coastline”).

As one study put it, “a few submarine

springs are prominent enough to be readily noticeable, but
groundwater almost certainly discharges diffusely along the
entire shore in addition and is simply masked readily by seawater
mixing where it is not focused.”

14

See “A Multitracer Approach to

Detecting Wastewater Plumes from Municipal Injection Wells in
Nearshore Marine Waters at Kihei and Lahaina, Maui, Hawaii,” ECF
No. 432-28, PageID # 10768-69.

The recovery at the seeps of

about 2 percent of the dye put into the Wells 3 and 4 suggests
that about 2 percent of the wastewater put into Wells 3 and 4
makes its way to those seeps.
There is no dispute that the Fluorescein tracer dye
was first detected at the north seep group 84 days after being
put into Wells 3 and 4.

Although the peak concentration of the

dye was observed 9 to 10 months after it was placed in Wells 3
and 4, the average (mean) time for wastewater to go from Wells 3
and 4 to the north and south seep groups was 14 to 16 months.
See ECF No. 432-24, PageID # 10592 (“Fluorescein tracer dye (FLT)
added to LWRF injection Wells 3 and 4 arrived at coastal
submarine spring sites with a time of first arrival of 84
days.”), and # 10607 (stating, “The average time of travel
occurred 487 and 435 days after the FLT addition at the NSG and
SSG, respectively.”); Decl. of Jean E. Moran (Plaintiffs’
expert), ECF No. 432-22, PageID # 10559; Expert Report of Ericson
John List (the County’s expert), ECF No. 127-11, PageID # 3804
(stating that the average travel time is about 430 days).
2013 Tracer Dye Study included the following table that
illustrated detection times:

15

The

ECF No. 432-24, PageID # 10630.
List, a County expert, says that 50 percent of the dye
measured at the seeps entered the ocean within 300 days, that 70
percent of the dye entered the ocean within 400 days, and that 90
percent of the dye entered the ocean within 600 days.

See Remote

Depo. by Videoconf. of Ericson John List, ECF No. 432-10, PageID
#s 10479-80; see also Supp. Expert Rep. of Ericson John List, ECF
No. 432-14, PageID # 10516 (same); Decl. of Ericson John List,
16

ECF No. 440-2, PageID # 11068 (“of the 2% fraction of injectate
that was measured in the groundwater flow at the Kahekili spring
groups, 50% had been in the aquifer for more than 300 days”).
Thus, even if less than 2 percent of the tracer dye was measured
by the piezometers at the seeps, 70 percent of the dye, according
to the County’s expert, entered the ocean within 400 days of
being placed into Wells 3 and 4.

See, e.g., ECF No. 432-10,

PageID # 10480 (“Q: And your further testimony with respect to
the south seep group, again for measured tracer, is that 70
percent will have entered the ocean by 400 days; correct?
can infer that from what I said.

A: You

What I said is 30 percent

remained resident in the aquifer.

So 30 percent is still

resident; 70 percent has been released, yes.

Q: And then

finally, by 600 days, 90 percent of the injected tracer would
have entered the ocean; right?

A.

Yes.

You did your arithmetic

correctly.”).
Another expert for the County, Jeffrey Muir Thompson,
Ph.D., states that the estimates that 0.6 percent to 1.6 percent
of the wastewater entered the ocean refer to wastewater entering
from the identified seep vents, without regard to wastewater that
entered the ocean from the rest of the nearby seep group areas.
See Remote Depo. by Videoconf. of Jeffrey Muir Thompson, Ph.D.,
ECF No. 444-12, PageID # 11548.
Another County expert, Craig Lekven, a civil engineer,
notes that it takes much longer for the treated wastewater to
17

reach the ocean via groundwater than it would take via a direct
pipeline.

He says dye put into the ocean via a pipe going

straight from the LWRF to the ocean would reach the ocean in
about 90 to 108 minutes, rather than first arriving at the sea in
84 days.

See Decl. of Craig Lekven, ECF No. 440-6, PageID

# 11120.
The 2013 Tracer Dye 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.”
# 10594.

ECF No. 432-24, PageID

This court previously characterized the 2013 Tracer Dye

Study with respect to the Fluorescein tracer dye as “indisputably
demonstrat[ing] the relatively rapid flow of significant
quantities of pollutant from the LWRF to the ocean.”

24 F. Supp.

3d at 1003.
On August 11, 2011, a different tracer dye, SulphoRhodamine-B, was placed into Well 2, which is located slightly
northeast of Wells 3 and 4.

That dye was not detected as

emerging at the study’s monitors.

See ECF No. 432-24, PageID

# 10592; Decl. of Adina Paytan (Plaintiffs’ expert), ECF No. 43232, PageID # 10842 (describing the location of the wells); Decl.
of Richard Kraft (the County’s expert), ECF No. 440-3, PageID
# 11083 (stating that “[i]njectate from Wells 1 and 2 has never
been detected at the submarine springs offshore of Kahekili
Beach, or anywhere else in the Pacific Ocean”).
18

The 2013 Tracer Dye Study recognized that wastewater
from Well 2 might not be discharging in the nearshore waters and
might be instead discharging in deeper water farther from the
shore.

See id., PageID # 10689.

Moran, a hydrologist and

geochemist retained by Plaintiffs, opines that the lack of
Sulpho-Rhodamine-B tracer dye detected from Well 2 does not mean
that it fails to reach the ocean.

Moran notes that detection of

Sulpho-Rhodamine-B from Well 2 could have been affected by
degradation of Sulpho-Rhodamine-B, which degrades more readily
than Fluorescein tracer dye.

Detection could also have been

affected by the lesser amount of Sulpho-Rhodamine-B used and the
likely deflection of wastewater from Well 2 by mounds of pressure
created by wastewater from Wells 3 and 4 (which received more
wastewater during the study).

Decl. of Jean E. Moran, Ph.D.

(Plaintiffs’ expert), ECF No. 432-22, PageID # 10560; see also
ECF No. 432-24, PageID # 10689 (concluding in the 2013 Tracer Dye
Study that the lack of detection could have related to
displacement by wastewater from Wells 3 and 4, discharge in areas
that were not monitored, and/or decreases in the dye
concentration or degradation of the dye below detectable limits
over time as the wastewater traveled to the ocean).
In Moran’s opinion, the time required for wastewater
from Wells 1 and 2 to reach the nearshore ocean is similar to
that from Wells 3 and 4.

ECF No. 432-22, PageID # 10561.

noted that, during the 2013 Tracer Dye Study, Wells 3 and 4

Moran

19

received 80 percent of the effluent injected into the wells.
Moran opines that, when Wells 1 and 2 receive the majority of the
effluent, Wells 1 and 2 discharge at and near the North and South
Seep Groups.

Id., PageID # 10566.

Moran says that, because

wastewater from each of the LWRF’s four wells goes into the same
aquifer, flow times from all of the wells are similar.

See Decl.

of Jean E. Moran, ECF No. 432-22, PageID # 10561; Supp. Decl. of
Jean E. Moran, ECF No. 444-2, PageID #s 11417-18.
Another of Plaintiffs’ experts, Adina Paytan,
specializes in the relationship between submarine groundwater
discharge and marine chemistry and has been studying that
relationship in Hawaiian waters for 13 years.

She says that she

has been collaborating with the U.S. Geological Survey since
2014, studying the impacts of wastewater injected into the wells
at the LWRF on the nearby reef.
32, PageID #s 10832-33.

See Paytan Decl., ECF No. 432-

In 2019, she coauthored a peer-reviewed

article, “Coral Skeleton ä15 N as a Tracer of Historic Nutrient
Loading to a Coral Reef in Maui, Hawaii.”

See ECF No. 432-34.

Paytan studied ä15 N, a sewage-derived nitrogen isotope.
Paytan Decl., PageID # 10857.

See

Her 2019 article examined coral

skeletons cores corresponding to a 40-year period from the seeps
identified by the 2013 Tracer Dye Study, determining that there
was “a dramatic increase in coral ä15 N values after 1995,
corresponding with the implementation of biological nutrient

20

removal at the nearby Lahaina Wastewater Reclamation Facility.”
ECF No. 432-34, PageID #s 10898 and 10901; see also Paytan Decl.,
ECF No. 432-32, PageID #s 10834, 10900.
Paytan’s study says that “[h]igh ä15 N values are known
to be strongly indicative of denitrification and sewage
effluent.”

ECF No. 432-34, PageID # 10898; see also Paytan

Decl., ECF No. 432-32, PageID # 10834.

Her study “confirm[ed]

that corals living within the SGD seep area are impacted by
sewage-effluent injected at the LWRF.”
# 10903.

ECF No. 432-34, PageID

Paytan explains:
The links between fluctuations in the seepage
chemistry to changes in wastewater management
at the plant provide additional confirmation
that pollutants entering the ocean off
Kahekili Beach Park come from treated
effluent discharged from the LWRF injection
wells. As discussed above, the dramatic
increase in coral ä15 N values corresponds to
the denitrification upgrade at the LWRF.
There were also significant changes in
discharging water chemistry following the
implementation of chlorination disinfection
at the LWRF in 2011. Notably, the mean
salinity of the vent water was about 2.5
times higher in 2013 (7.4 ± 3.7) than in 2010
(the addition of chlorine to treat LWRF
effluent increases the salinity, which is the
sum of the concentrations of dissolved salts
like sodium chloride), and the mean dissolved
organic nitrogen (DON) (and not other
nutrients like silicon) was enriched about
9-fold during 2013 (due to lower microbial
activity, less DON is utilized and
mineralized by the microbial community,
while the major source of silicon is
from dissolution of the bedrock materials via
water rock interactions) likely due to the
impact of the chlorine on the
21

microbial community in groundwater (Fackrell
et al., 2016; Murray et al., 2019).
ECF No. 432-32, PageID # 10860.
Paytan says that studies completed before the 2013
Tracer Dye Study “supported the prevailing scientific view that
injected LWRF wastewater discharges into coastal waters near
Kahekili Beach.”
# 10836.

See Paytan Decl., ECF No. 432-32, PageID

For example, Paytan notes that a 2009 study by Charles

D. Hunt and Sarah N. Rosa concluded that there was an injection
plume caused by wastewater discharge from LWRF.

See id.; “A

Multitracer Approach to Detecting Wastewater Plumes from
Municipal Injection Wells in Nearshore Marine Waters at Kihei and
Lahaina, Maui, Hawaii,” ECF No. 432-28, PageID # 10774-75.
Another study prepared by the United States Geological
Survey in conjunction with the Hawaii State Department of Health,
Clean Water Branch, similarly concluded that “[t]reated
wastewater presence was confirmed” in the nearshore waters near
the LWRF “by multiple ‘inherent’ wastewater tracers, the most
conclusive being pharmaceuticals, organic waste indicator
compounds, and heavy ä15 N.”

ECF No. 432-28, PageID # 10776.

That study noted that “tribromomethane, two musk fragrances, a
fire retardant, and a plasticizer compound” were detected,
further confirming the presence of treated wastewater at the
submarine springs near LWRF.

Id.

22

Ryan Fimmen, Ph.D., a County expert, says that the LWRF
may not be the only source of these contaminants.

Reclaimed

water used for irrigation and landscaping near the ocean, along
with surface runoff, may add chemicals to nearshore waters.
Decl. of Ryan Fimmen, Ph.D., ECF No. 440-5, PageID # 11113.
Lekven, an engineer retained by the County, says that, between
July 1996 and December 2020, 7,593,683,519 gallons of recycled
water were provided to the Kaanapali Resort and Golf Club, Honua
Kai Resort, Hyatt Regency, Hyatt Timeshare, and Maui Land and
Pineapple Company.

Lekven estimates that between 1.5 and 2.3

billion gallons of that recycled water percolated into the
groundwater during that time frame.

See Decl. of Craig Lekven,

ECF No. 445-6, PageID # 11623-24; see also ECF No. 440-11 (aerial
photograph with overlays showing the LWRF, Kaanapali Resort and
Golf Club, Honua Kai Resort, Hyatt Regency, Hyatt Timeshare, and
Maui Land and Pineapple Company).
Paytan, Plaintiffs’ expert, also notes that dissolved
oxygen levels at the seeps near LWRF are lower than in other
ocean areas in West Maui.
PageID # 10858.

See Paytan Decl., ECF No. 432-32,

She opines that effluent with dissolved organic

matter consumes oxygen at the seeps, leading to elevated
phosphorous levels there.

Id., PageID # 10859.

Dye Study noted other differences.

23

The 2013 Tracer

When compared to surrounding

waters, the seeps generally had a lower pH, lower salinity, and
lower specific conductivity.

See ECF No. 432-24, PageID # 10647.

While there is no dispute that wastewater from the LWRF
ultimately finds its way to the Pacific Ocean, the County’s
expert, Kraft, says that, on its way to the ocean, the pollutants
in the wastewater become less of a problem because of
“attenuation mechanisms such as dispersion, mixing, dilution, and
chemical transformation.”

See Kraft Decl., ECF No. 440-3, PageID

#s 11079, 11082.
Another of the County’s experts, Ryan Fimmen, Ph.D.,
says that the wastewater combines with saline, brackish, and
fresh groundwater, then goes through and interacts with porous
volcanic rock, leading to “injectate that emerge[s] at the seeps
[that is] significantly mixed, diluted, chemically altered, and
geochemically transformed.”
440-5, PageID # 11106.

Decl. of Ryan Fimmen, Ph.D., ECF No.

According to Fimmen, “Microbial processes

such as denitrification ultimately result in the removal of an
average of 86% of total nitrogen.”

Decl. of Ryan Fimmen, Ph.D.,

ECF No. 440-5, PageID # 11106; Paytan Expert Report, ECF No. 44040, PageID # 11259 (stating that the average nitrogen removal was
86 percent, but the removal rate ranged from 30 percent to 90
percent).
It may be that some of the denitrification occurs at
the plant, rather than as the wastewater travels through
groundwater to the sea.

See Paytan Decl., ECF No. 432-32, PageID
24

# 10834.

However, Lekven, the County’s engineering expert,

opines that treated wastewater taken by a pipe to the ocean would
yield ocean outfall of nitrogen of about 190 pounds per day,
contrasting with only 31 pounds per day actually released into
the ocean.

He says the difference “is a result of the

denitrification process that occurs in the aquifer as the
groundwater flows from the injection wells into the ocean.”
Lekven Decl., ECF No. 440-6, PageID # 11125.

Lekven says this is

a “significant natural treatment” before the treated wastewater
reaches the ocean.
III.

Id.

SUMMARY JUDGMENT STANDARD.
This court set forth the summary judgment standard in

its order of May 30, 2014.
Haw. 2014.
IV.

See 24 F. Supp. 3d 980, 992-93 (D.

That standard is incorporated herein by reference.
ANALYSIS.
The Clean Water Act was enacted “to restore and

maintain the chemical, physical, and biological integrity of the
Nation’s waters.”

33 U.S.C. § 1251(a).

Toward that end, 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); see also 33 U.S.C. § 1362(12) (“The term
‘discharge of a pollutant’ and the term ‘discharge of pollutants’
each means (A) any addition of any pollutant to navigable waters
from any point source, (B) any addition of any pollutant to the

25

waters of the contiguous zone or the ocean from any point source
other than a vessel or other floating craft.”).
The Supreme Court has explained that “a person wishing
to discharge any pollution into navigable waters [must] first
obtain EPA’s permission to do so.”

Hawaii Wildlife Fund, et al.

v. County of Maui, 140 S. Ct. 1462, 1468 (2020).

In other words,

a person desiring to discharge any pollutant from a point source
into the navigable waters of the United States must get an NPDES
permit.

See 33 U.S.C. §§ 1311(a) and 1342; see also Comm. To

Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309
(9th Cir. 1993) (“the Act categorically prohibits any discharge
of a pollutant from a point source without a permit”).
The Clean Water Act defines “pollutant” broadly,
including in its definition “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).
Under the Clean Water Act, “navigable waters” are “the

waters of the United States, including the territorial seas.”
U.S.C. § 1362(7).
The Clean Water Act covers pollutants reaching
navigable waters from any point source.

26

A “point source” is

33

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).
In 2012, 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 discharge without a
permit.
On May 30, 2014, this court granted summary judgment to
Plaintiffs, ruling that the County’s failure to obtain an NPDES
permit was a violation of the Clean Water Act.

While recognizing

that the LWRF was not discharging wastewater directly into the
Pacific Ocean, this court ruled that an NPDES permit was
necessary because a “discharge into the groundwater below the
LWRF is functionally equivalent to a discharge into the ocean
itself.”

24 F. Supp. 3d 980, 994 (D. Haw. 2014).

This court

noted that the groundwater was the conduit by which the
wastewater went from the LWRF wells to the sea, explaining, “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.”

27

24 F. Supp. 3d at 998.

This court found “no genuine dispute that the discharge
at the LWRF significantly affects the physical, chemical, and
biological integrity of the ocean water.”
1003-04.

Id., 24 F. Supp. 3d at

While chemical and biological reactions occurred as the

wastewater traveled from the LWRF to the ocean that resulted in
lower levels of nitrogen and phosphorous, the court ruled that
the change to the wastewater “d[id] not mean that the water at
the seeps is not or does not contain a ‘pollutant’ within the
meaning of the [Clean Water] Act.”

Indeed, at the time, the

County had “explicitly disclaimed any such argument, conceding
that ‘pollutants’ were released at the seeps.”

Id., 24 F. Supp.

3d at 998.
On appeal, the Ninth Circuit affirmed the result but
articulated a different approach, concluding that an NPDES permit
was necessary because pollutants were “fairly traceable from the
point source to a navigable water.”

886 F.3d 737, 749 (2018).

The Supreme Court granted certiorari, and, on April 23,
2020, ruled that the Ninth Circuit’s “fairly traceable” test was
too broad.

That test, the court said, allowed for liability when

a pollutant was carried from a point source to navigable waters
on a bird’s feather, or when a pollutant took 100 years to go
from a point source to navigable waters, or when a pollutant had
gone 250 miles through groundwater on its way to navigable
waters.

See 140 S. Ct. 1462, 1470-71 (2020).

However, the

Supreme Court also rejected the County’s argument that the Clean
28

Water Act did not apply whenever a pollutant traveled through
groundwater on its way from a point source to navigable waters.
See 140 S. Ct. at 1473.

This argument was too expansive,

allowing for a “loophole” when someone discharging a pollutant
merely moved a pipe back a few yards from navigable water, so
that the resulting flow might not be a direct discharge into that
water.

Id.

The Supreme Court held “that the statute requires a

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.”

Id., 140 S. Ct. at 1476.

The Supreme Court then provided guidance as to when
there would be and when there might not be the “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 . . . 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
between those extremes the Supreme 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
29

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.
There is no dispute that the LWRF is a “point source,”
that the Pacific Ocean is a “navigable water,” or that the
wastewater discharged into the Pacific Ocean is a “pollutant.”
See id., Kavanaugh, J., concurring, 140 S. Ct. at 1478 (“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).”).

This case turns

on whether the LWRF’s placement of wastewater into injection
wells from which the wastewater flows to the Pacific Ocean is the
“functional equivalent of a direct discharge” from the LWRF into
the Pacific Ocean.

Id.

The present case falls between the two examples set
forth by the Supreme Court.

The LWRF’s injection wells are

neither located just a few feet from the ocean nor 50 miles from
shore.

See id. 140 S. Ct. at 1476.

half a mile from the ocean.

Instead, the wells are about

Even if the wastewater is diverted

off of a straight line to the sea, at least some of it appears to
30

travel between half a mile and a mile and a half.

Nor does the

pollutant routinely take “many years” to reach the sea.

Some of

it reaches the sea in 84 days, and much of it within 400 days.
This court looks to the factors set forth by the
Supreme Court in determining whether there has been the
functional equivalent to a direct discharge, paying particular
attention to the time and distance factors.
at 1476–77.

See id., 140 S. Ct.

Of course, this court recognizes that other factors

might also be relevant.
A.

Transit Time.

According to the 2013 Tracer Dye Study, dye placed into
Wells 3 and 4 of the LWRF reached the north seep in the nearshore
ocean waters in as little as 84 days, with peak concentration of
the dye occurring 9 to 10 months after placement in the wells.
Half of the dye measured at the seeps entered the ocean within
300 days.

The average (mean) time it took for the wastewater to

travel from the wells to the ocean was 14 to 16 months.

With

respect to transit time, this case falls between the seconds or
minutes it might take pollutants to reach the ocean from a pipe
ending a few yards from the ocean and the many years pollutants
might take to travel through 50 miles of groundwater to the
ocean.

Even in the latter situation, the Supreme Court did not

categorically rule out the need for an NPDES permit, saying only
that permitting requirements “likely do not apply.”
at 1476.
31

140 S. Ct.

This court has previously characterized the 2013 Tracer
Dye Study as “indisputably demonstrat[ing] the relatively rapid
flow of significant quantities of pollutant from the LWRF to the
ocean.”

24 F. Supp. 3d at 1003.

This court still believes that

the transit time favors a determination that the County must get
an NPDES permit.
The County’s argues that 84 days is a lot longer than
the 90 to 108 minutes that wastewater would take to travel the
half-mile in a hypothetical pipe running in a straight line from
the LWRF to the ocean.

But this court does not view that

hypothetical pipe as any kind of lodestar.

It is instead just

one of an immense number of examples one could imagine for
transporting wastewater half a mile.
One could imagine dozens of tanker trunks like those
used for transporting gasoline arriving at the LWRF and being
filled in a continuous rotation with wastewater before driving to
the shoreline, dumping their cargo into the ocean, and returning
to the LWRF to be refilled.

With such an example, the time to

fill the tanks, drive to the ocean, empty the tanks, and
repeatedly refill them might become a baseline.

Alternatively,

one could imagine creating an enormous concrete reservoir into
which wastewater flowed, only to be emptied and transported to
the ocean by trucks when the reservoir was filled, which could
take weeks or months.

It makes no sense to this court to use the

single example selected by the County as some kind of absolute
32

measuring point, especially when changing the dimensions of the
hypothetical pipe could easily alter travel times.
Indeed, the Supreme Court knew that it was dealing with
pollutants traveling through groundwater, not through a pipe.
The very nature of groundwater means that the pollutants will not
reach the ocean in a matter of minutes.

Had the Court intended

to say that anything taking more than 90 minutes or a day or a
week or a month was exempt from the NPDES permitting requirement,
it could easily have said that.

Instead, the Court recognized

examples at the extremes of a few seconds or minutes to many
years.

Because the Supreme Court knew it was dealing with

movement through groundwater, it makes sense to assume that the
Court expected the parties to be dealing with transport time
measured in months.

Notably, the Supreme Court set its extreme

at “many years,” not at “many months,” and not even at one year
or two years.
The County’s 90-minute transit time refers to when
wastewater first reached the ocean through a hypothetical pipe.
See Lekven Decl., ECF No. 440-6, PageID # (indicating that dye
from a hypothetical pipe would be expected to start emerging from
that pipe after 90 minutes).

If this court similarly looks at

when the wastewater, traveling through groundwater, first reaches
the seeps, the court has a time of 84 days.

Peak concentrations

of the dye take longer (9 to 10 months), and the average (mean)

33

time is 14 to 16 months.

Although the wastewater measured at the

seeps accounts for a very small amount of the total amount of
wastewater released by the LWRF, the parties have agreed that all
of the wastewater discharged from the wells makes its way to the
Pacific Ocean.

Some of it may take longer than the wastewater

observed at the seeps, but some of it may take shorter.
There is no dispute that much of it enters the ocean
through diffuse flow rather than by flowing or dripping through
seeps, which are holes in rocks.

It is impossible to track each

finger of water percolating through groundwater or sand or dirt.
Indeed, if a party could not prevail without establishing the
transit time for every trickle of liquid through groundwater,
then no challenge involving groundwater could ever be successful.
In fashioning a test, the Supreme Court was most assuredly not
saying that groundwater cases were per se unwinnable.

To the

contrary, the Supreme Court must have thought that a groundwater
case might require a permit.

In complaining that Plaintiffs have

not tracked all of the wastewater through groundwater, the County
is setting up an insurmountable barrier that would nullify the
application of the Clean Water Act’s permit requirement in all
groundwater cases.
This court has clearly in mind the concept that any
genuine issue of material fact should be left for trial rather
than resolved on a summary judgment motion.

34

But with respect to

the time aspect of the Supreme Court test, trial could not shed
more light on the subject.

There will be no proof beyond what is

already in the record about the time it takes for wastewater not
observed at the seeps to reach the ocean.

Instead, the court

will be faced with the certainty that all of the wastewater
discharged into groundwater from the wells eventually reaches the
ocean, some of it by 84 days, some of it within 9 to 10 months,
some of it within shorter or longer periods, much of it through
diffuse flow that cannot be precisely measured.

Even if this

court doubles the longest time measured at the seeps and assumes
that some of the wastewater took that doubled time to reach the
ocean, this court is still far from the extreme of “many years.”
Considering that this case involves what the Supreme Court knew
would be transport through the uneven course of groundwater, this
court concludes that the time factor weighs in favor of requiring
an NPDES permit.
B.

Distance Traveled.

It is undisputed that the LWRF is located about onehalf mile from the Pacific Ocean.

The distance the wastewater

flows from the LWRF to the ocean cannot be measured with
precision.

The wastewater may move vertically and horizontally

through the aquifer, rather than in a straight path to the sea.
Plaintiffs’ expert says the distance the wastewater travels does
not exceed 1.5 miles.

See Decl. of Jean E. Moran, Ph.D., ECF No.

35

432-22, PageID # 10566.

The County’s expert, on the other hand,

says the wastewater travels from the LWRF to the ocean a minimum
distance ranging from 0.3 to 1.3 miles.

See Geosync Consultants

Expert Report, ECF No. 432-29, PageID #s 10781, 10786.

Another

of the County’s experts opines that wastewater being discharged
in to the ocean as diffuse flow may “occur anywhere along the
west-Maui coast.”

List Decl., ECF No. 440-2, PageID # 11064.

Plaintiffs and the County’s experts are fairly close to each
other in terms of the minimum distance the wastewater travels,
but there is no consensus on the maximum distance it travels.
While there is a question of fact as to the maximum distance the
wastewater travels, the undisputed minimum distance range (0.3 to
1.3 miles) does not come close to the Supreme Court’s reference
to the 50-mile extreme.

See 140 S. Ct. at 1476.

The County argues that because most of the wastewater
is being discharged into the ocean as diffuse flow, this court
cannot discern the exact distance that most of the wastewater is
traveling.

This court agrees that a precise measurement is

impossible because, with diffuse flow, it is not even clear where
the wastewater is entering the ocean.

The 2013 Tracer Dye Study

concluded that over 90 percent of the discharge within the two
seep groups was occurring as diffuse flow.
PageID # 10602.

See ECF No. 432-24,

While the County argues that the evidence does

not demonstrate exactly where the diffuse flow occurs, it

36

concedes that diffuse flow occurs north and south of Kahekili
beach and deeper offshore.
49.

See ECF No. 439-1, PageID #s 11048-

We therefore know a little about where that diffuse flow

entered the sea.

In any event, we can tell where the monitored

seeps are located in the nearshore waters about a half a mile
from the LWRF.

See 2013 Tracer Dye Study, Figure 4-1 (Location

and arrangement of monitoring points), ECF No. 432-24, PageID
# 10699.
Additionally, Plaintiffs argue that the increase in
nearshore water temperature and algal ä15 N concentration is
indicative of diffuse flow near the monitored vents, although
Defendants contend that other causes are at play.

Viewing

disputed facts in the light most favorable to the County while
considering Plaintiffs’ motion, this court, in examining the
distance involved, disregards Plaintiffs’ reasoning on the causes
of higher temperatures and nitrogen isotope concentration.

What

the court does not disregard is the evidence that the wastewater
travels a minimum distance of between 0.3 and 1.5 miles to the
sea.

Even if the average distance were double the high end of

that minimum (i.e., three miles), this case would be far from the
Supreme Court’s 50-mile example.

Indeed, if the average distance

were triple that high end, that distance would still be less than
a tenth of the 50-mile extreme.

37

It is hard to see how trial would lead to a more
precise figure.

Certainly the parties have not suggested how a

trial might yield better data.

This court concludes that the

available data indicates that, even with diffuse flow, the
wastewater likely travels a relatively short distance through
groundwater.

Such a distance weighs in favor of requiring an

NPDES permit.
C.

The Nature of the Material Through Which the
Pollutant Travels.

Once placed in the wells, the wastewater travels
approximately 200 feet underground into a shallow groundwater
aquifer beneath the facility.

Kraft, a County expert, says this

aquifer is “a diverse assemblage of volcanic rock below the
freshwater aquifer lens.”

He says that the wastewater in the

aquifer encounters saline and brackish water at depths of 88 to
258 feet.5

See Kraft Decl., ECF No. 440-3, PageID # 11080-81.

The treated wastewater mixes with groundwater and then flows
horizontally and vertically into the ocean through the porous
aquifer.

See Kraft Decl., ECF No. 440-3, PageID # 11081-82; ECF

No. 44027, PageID # 11212.

In short, unlike water flowing

through a pipe, the wastewater is mixing with other waters and is

5

Schoolchildren in Hawaii have long been taught about the
freshwater lenses that are the sources of Hawaii’s drinking
water. This senior judge can still recall learning in elementary
school about such lenses and about the filtering of the water
through volcanic rock.
38

flowing through rock and other substances.

The nature-of-

material factor appears to favor a determination that an NPDES
permit is not necessary in this case, for reasons also discussed
in connection with the next factor.
D.

The Extent to Which the Pollutant Is Diluted or
Chemically Changed as it Travels.

There is no dispute that wastewater that is put into
the wells at the LWRF “undergoes attenuation mechanisms such as
dispersion, mixing, dilution, and chemical transformation.”

See

Kraft Decl., ECF No. 440-3, PageID #s 11079, 11082; Paytan Decl.,
ECF No. 432-32, PageID #s 10855-56 (recognizing that the
wastewater undergoes “partial transformation along the flow-oath
in the groundwater”).
and fresh groundwater.

Wastewater combines with saline, brackish,
It then goes through and interacts with

porous volcanic rock, leading to “injectate that emerge[s] at the
seeps [that is] significantly mixed, diluted, chemically altered,
and geochemically transformed.”
No. 440-5, PageID # 11106.

Decl. of Ryan Fimmen, Ph.D., ECF

“Microbial processes such as

denitrification ultimately result in the removal of an average of
86% of total nitrogen.”

Decl. of Ryan Fimmen, Ph.D., ECF No.

440-5, PageID # 11106; Paytan Expert Report, ECF No. 440-40,
PageID # 11259 (noting that average nitrogen removal was 86
percent, but with a range from 30 percent to 90 percent).
be that some of the denitrification occurs at the plant.
Paytan Decl.,

ECF No. 432-32, PageID # 10834.
39

It may
See

Lekven, the County’s expert, opines that 31 pounds of
nitrogen per day (over 11,000 pounds per year) are actually
released into the ocean at the north and south seep groups, a
significant reduction from what would be expected without the
filtering mechanism.
# 11125.

See Lekven Decl., ECF No. 440-6, PageID

Even if much of the pollutant has been diluted or

otherwise removed, a significant amount of pollutant nevertheless
enters the ocean.

This court, however, draws all inferences in

the County’s favor in considering Plaintiff’s motion for summary
judgment and therefore views the significant reduction as
indicating that this factor weighs in the County’s favor (i.e.,
against requiring an NPDES permit).
E.

The Amount of Pollutant Entering the Navigable
Waters Relative to the Amount of the Pollutant
That Leaves the Point Source.

There is no dispute that 100 percent of the wastewater
from the LWRF is discharged somewhere in the Pacific Ocean.

The

2013 Tracer Dye Study measured only 2 percent or less of the
wastewater discharged at the monitors at the seeps.

But of

course the rest of the wastewater does reach the ocean.
Notwithstanding any dilution or chemical change in the wastewater
as it travels through groundwater, no party has suggested that
the wastewater thereby rids itself of all pollutants.

That is,

the resulting wastewater indisputably remains polluted, even if,
as the County argues, it ends up being less polluted, and all of

40

the wastewater goes into the ocean.

This factor therefore weighs

in favor of requiring an NPDES permit.
F.

The Manner By or Area in Which the Pollutant
Enters the Navigable Waters.

The County correctly notes that the precise manner by
which all of the wastewater enters the ocean is unclear.

The

parties agree that some of the wastewater enters the ocean via
identified seeps, with the remainder of the wastewater entering
the water through other means, including diffuse flow.
Similarly, the precise area in which the wastewater enters the
ocean is not entirely discernible.

Clearly, some of the

wastewater enters at the seeps, and some of the wastewater likely
enters the ocean near the seeps.

Some of the wastewater may

enter the ocean elsewhere, but, given the parties’ experts’
statements concerning the distance traveled by the wastewater,
those other entry areas are likely reasonably close to the seeps.
This factor may not add much to the other factors in the
circumstances of this case, and this court gives no additional
weight to this factor.
G.

The Degree to Which the Pollution Maintains its
Specific Identity.

As noted above, there is no dispute that the wastewater
undergoes some changes as it flows from the LWRF to the ocean.
The County asserts, for example, that 86 percent of the nitrogen
is removed as the wastewater travels to the sea.

41

(As previously

noted, some of the denitrification process may occur at the LWRF.
See Paytan Decl., ECF No. 432-32, PageID # 10834.)
Studies have found “wastewater tracers” in the ocean-pharmaceuticals, organic waste indicator compounds, and heavy
ä15 N, a sewage-derived nitrogen isotope.

Tribromomethane, two

musk fragrances, a fire retardant, and a plasticizer compound
were detected, tending to show the presence of treated wastewater
at the submarine springs near the LWRF.

ECF No. 432-28, PageID

# 10776; Figure ES-6, ECF No. 432-24, PageID # 10626; Paytan
Decl., 432-32, PageID # 10857.

Whether the LWRF is the sole

source of those substances is unclear; reclaimed water used for
irrigation and landscaping near the ocean and surface runoff may
contribute chemicals that enter the nearshore waters.

See Decl.

of Ryan Fimmen, Ph.D., ECF No. 440-5, PageID # 11113.
Interpreting the facts in the light most favorable to the County
with respect to Plaintiffs’ motion, this court assumes for
purposes of deciding Plaintiffs’ motion for summary judgment that
the source of the “wastewater tracers” is irrigation using
reclaimed water from the LWRF that was not discharged from the
wells that are the point sources in this case.
But no party has ever contended that the wastewater
that reaches the ocean from the wells is devoid of pollutants.
The 2013 Tracer Dye Study, whatever challenges the County raises
to parts of it, indisputably establishes that the wastewater from

42

the wells can still be identified.

Even if the wastewater that

reaches the ocean from the wells contains lesser levels of
pollutants than at the start of the wastewater’s journey from the
wells, that wastewater maintains its specific identity as
polluted water emanating from the wells.

This factor therefore

weighs in favor of requiring an NPDES permit.
H.

The Volume of Wastewater Reaching Navigable
Waters.

The seven factors discussed above and included in the
Supreme Court’s list are not necessarily the only factors
relevant to a determination of whether the wastewater from the
wells is the functional equivalent of a direct discharge into
navigable waters.

The Supreme Court identified those factors as

circumstances “that may prove relevant (depending on the
circumstances of a particular case).”

Something not captured in

those seven factors is the immensity of the wastewater volume.
At most, one of those factors looks at “the amount of pollutant
entering navigable waters relative to the amount of the pollutant
that leaves the point source.”

If the wastewater as a whole is

considered the pollutant, rather than each toxin or chemical
contributing to that polluted status, then 100 percent of the
pollutant reaches the sea.

But just referring to 100 percent

does not fully capture how much wastewater is traveling from the
wells to the Pacific Ocean.

As noted at the start of this order,

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more than a million gallons of wastewater is discharged from a
single well every day, all of it going to the sea.
Even if this court restricted its consideration to the
wastewater that emerges at the monitored seeps, the amount of
wastewater is enormous.

If those seeps account for less than 2

percent of the wastewater discharged from the LWRF’s wells, that
percentage on its own is mind-boggling.

In 2015, an average of

nearly a million gallons of wastewater was put into Well 3 every
day, and about 400,000 gallons a day was put into Well 4 every
day.

ECF No. 432-7, PageID # 10422.

If this court considers

only 2 percent or less of that amount, then the court is dealing
with 20,000 gallons or less a day from Well 3 and 8000 gallons or
less a day from Well 4.

If about 28,000 gallons a day reaches

the seeps from those two wells, then over the course of a few
months, 2 percent would amount to millions of gallons of
wastewater just at the seeps.

That raw volume is so high that it

is difficult to imagine why it should be allowed to continue
without an NPDES permit just because the other 98 percent of
wastewater from the wells has not been precisely tracked.
An analogy unrelated to gallons of water may also prove
helpful.

This country has a population of over 300 million.

See

https://www.census.gov/popclock/ (indicating that the United
States population was over 332,517,000 on July 13, 2021) (last
visited July 13, 2021).

If 2 percent of the population died from

44

COVID-19, that would represent more than 6 million individuals.
Just because 98 percent of the population survived would not mean
that the federal government should leave entirely unregulated all
matters relating to COVID-19.

As it is, more than 600,000 people

in this country have died from COVID-19.

See

https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/in
dex.html (“As of July 7, a total of 603,958 COVID-19 deaths have
been reported.”) (last visited July 13, 2021).

That is less than

1 percent of the population, but it is still an enormous number
that has understandably generated a concerted effort to address
the problem.

In short, raw numbers matter without regard to the

percentage of the total.
The Clean Water Act requires an NPDES permit for the
discharge of any pollutant to navigable waters from a point
source.

The permit requirement does not refer to some minimum

amount.

Still, in much the same way that the Supreme Court

thought a percentage might be a factor, this court considers the
absolute volume relevant here.

That volume is so large that it

weighs in favor of requiring an NPDES permit.
I.

Impact on the Ecosystem.

The Clean Water Act was enacted “to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters.”

33 U.S.C. § 1251(a).

Toward that end, the

Clean Water Act prohibits the “discharge of any pollutant” unless

45

certain provisions of the Clean Water Act are complied with.
33 U.S.C. § 1311(a); see also 33 U.S.C. § 1362(12).

See

In other

words, the Clean Water Act was designed to prevent pollutants
from harming navigable waters and their ecosystems or, at least,
to limit that harm by limiting the amount of pollutant being
discharged pursuant to a permit.
This court has concerns with respect to whether the
wastewater from the LWRF is harming the nearby ocean’s ecosystem.
This court previously found “no genuine dispute that the
discharge at the LWRF significantly affects the physical,
chemical, and biological integrity of the ocean water.”
F. Supp. 3d at 1003-04.

Id., 24

Plaintiffs’ expert, Paytan, co-authored

a study that “confirm[ed] that corals living withing the SGD seep
area are impacted by sewage-effluent injected at the LWRF.”

ECF

No. 432-34, PageID # 10903.
Although the nature of the damage to the environment
might conceivably be a factor in an analysis of whether a
discharge is the functional equivalent of a direct discharge,
this court does not rely on that issue in the present motion.
There is an issue of fact as to whether and to what
extent the wastewater from the wells is affecting the nearby
ecosystem.

See Decl. of Ryan Fimmen, Ph.D., ECF No. 440-5,

PageID # 11113 (noting that possible causes of contaminants in
the ocean may include reclaimed water used for irrigation and

46

landscaping near the ocean, rather than wastewater from the
wells).

This court recognizes that resolving that dispute might

best be left to a trial.
the present order.

However, that dispute is immaterial to

While the court cannot here resolve the

issue, this court presumes here that Plaintiffs could not
establish by a preponderance of the evidence that the observed
damage is traceable to the wastewater from the injection wells.
This hypothetical factor is not weighed in either side’s favor
here.
J.

Balancing of Factors.

It is undisputed that the LWRF has, at times, dumped 3
to 5 million gallons of treated wastewater into its four
injection wells every day.

It is also undisputed that the

treated wastewater then mixes with groundwater and flows
relatively quickly and a short distance to the Pacific Ocean
through the porous aquifer.

While the record does not show where

98 percent of the wastewater discharges into the ocean, it does
show that tens of thousands of gallons of wastewater were
detected at monitors in the nearshore ocean seeps on a daily
basis.

The difficulty of detecting and measuring what may be the

diffuse discharge of much of the remaining wastewater that
reaches the ocean does not nullify the Clean Water Act’s NPDES
permit requirements.

It is likely that much of that remaining

wastewater discharges near the monitored seeps in this case, but

47

even if this court relies only on the evidence from the monitored
seeps, the County was required to get an NPDES permit.
The undisputed evidence from the monitored seeps
establishes that the LWRF is discharging a pollutant into the
navigable waters of the United States on a massive scale.

There

is no dispute that, at times, tens of thousands of gallons of
wastewater have been discharged from the monitored seeps on a
daily basis.
The Supreme Court has provided guidance as to how to
determine whether a discharge is the functional equivalent of a
direct discharge.

The time and distance factors, which are the

most important factors, as well as the relative-amount-ofpollution-entering-the-water and the specific-identity factors
weigh in favor of applying the NPDES permit requirements.

On the

other hand, the nature-of-material and dilution/chemical-change
factors favor not requiring a permit.

The manner-by-or-area-in-

which-the-pollutant-enters-the-water factor is neutral.

This

court has added to the mix its own raw-volume-of-pollutant
factor, which weighs in favor of requiring a permit.
Balancing these factors, this court grants Plaintiffs’
motion for summary judgment and denies the County’s motion for
summary judgment, ruling that the County is and was required to
have an NPDES permit.

The court would reach this same conclusion

even if it did not consider the raw-volume-of-pollutant factor.

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V.

CONCLUSION.
Based on the undisputed evidence that the County

discharged tens of thousands of gallons of wastewater from the
LWRF into the Pacific Ocean on a daily basis at a few monitored
seep vents, and balancing the factors set forth by the Supreme
Court, as well as the additional volume factor that this court
added, this court concludes that the LWRF must have an NPDES
permit.

The discharge from the County’s injection wells into the

groundwater and ultimately into the ocean is the functional
equivalent of a direct discharge such that it triggers the NPDES
permit requirement.

The court would reach this same conclusion

even if it did not consider the raw-volume-of-pollutant factor.
Summary judgment is therefore granted in favor of Plaintiffs and
against the County.
This order does not address the remedies for the
County’s Clean Water Act violation.

The parties earlier entered

into a Settlement Agreement and Order re: Remedies.

See ECF No.

256. No later than July 21, 2021, each side shall file a
statement as to whether this or any other agreement regarding
remedies is in effect or whether remedies for the County’s
violation of the Clean Water Act still need to be addressed.

In

the meantime, this case remains pending.
Given this ruling, the court directs the Clerk of court
to vacate the trial date and all pretrial deadlines, leaving only

49

the remedies memorandum deadline for the parties to comply with
at this time.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 15, 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
GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT

50