Hawaii Wildlife Fund et al v. County of Maui

Filing 497

ORDER DENYING MOTION FOR RECONSIDERATION re 486 . Signed by JUDGE SUSAN OKI MOLLWAY on 10/20/2021. (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 DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
I.

INTRODUCTION.
Before this court is the County of Maui’s motion

seeking reconsideration of the order granting summary judgment.
This case is on remand following the Supreme Court’s decision
holding that the Clean Water Act requires a National Pollutant
Discharge Elimination System (“NPDES”) permit “when there is a
direct discharge [of a pollutant] from a point source into
navigable waters or when there is the functional equivalent of a
direct discharge.”

County of Maui v. Hawaii Wildlife Fund, et

al., 140 S. Ct. 1462, 1476 (2020).

In its summary judgment

ruling, this court agreed with Plaintiffs that the Lahaina
Wastewater Reclamation Facility (“LWRF”) was required to have an

NPDES permit because the LWRF’s discharge of a pollutant was the
functional equivalent of a direct discharge into the Pacific
Ocean.

See ECF No. 479 (July 26, 2021).

entered in Plaintiffs’ favor.

Judgment has been

See ECF No. 480 (July 26, 2021).

See ECF No. 486.
On August 19, 2021, the County of Maui filed the
present motion seeking reconsideration of the summary judgment
order and judgment.

See ECF No. 486.

The motion for

reconsideration is denied.
Some of the County’s arguments are based on statements
taken out of context.

Those arguments do not suffice to warrant

reconsideration.
Most of the County’s reconsideration motion is focused
on this court’s examination of the massive volume of treated
sewage (which this court referred to as wastewater) dumped every
day by the LWRF into injection wells.

In determining that the

LWRF’s discharge is the functional equivalent of a direct
discharge into navigable waters, this court examined each of the
seven factors enumerated by the Supreme Court, paying particular
attention to the time and distance factors, which the Supreme
Court noted would usually be the most important factors.

This

court found no genuine issue of fact with respect to whether the
discharge flowing through groundwater to the Pacific Ocean was
the functional equivalent of a direct discharge.

In the course

of its analysis, this court considered the volume of the
2

discharge, a factor not listed by the Supreme Court.

The massive

volume was relevant to and informed this court’s decision, but it
was not essential to this court’s determination.
The County disagrees with this court as to the weight
to be accorded the discharges that can indisputably be detected
at the seeps.

Those discharges represent a small percentage of

the total discharge that travels through groundwater.
Ultimately, all of it makes its way to the Pacific Ocean.

A

trial would have provided no greater certainty than is already in
the record about precisely when the rest of the discharges (i.e.,
the discharge not detected at those seeps) reaches the ocean, or
where the entry points are.

Given the congressional intent

behind requiring NPDES permits, it makes little sense to allow
the County to escape liability simply because the record does not
and probably could never establish the precise path of the bulk
of the wastewater.

At a minimum, the undisputed evidence

demonstrates that millions of gallons of wastewater are
discharged into the Pacific Ocean from a handful of seeps located
about half a mile from the LWRF and that this wastewater begins
to emerge into the ocean only 84 days after the LWRF dumps it
into the injection wells.

Under these circumstances, the County

does not persuade this court to reconsider its conclusion that
what is before the court is the functional equivalent of a direct
discharge.

3

Nor is the court persuaded by what appears to be the
County’s argument in its reconsideration papers that its treated
sewage should not be considered a pollutant.

At the hearing on

the motion, the County backtracked and conceded that what the
LWRF puts into the wells and what emerges in the Pacific Ocean
are pollutants for purposes of the Clean Water Act.

The County

then seemed to this court to switch back to arguing that the
wastewater is not a pollutant.

In any event, to the extent the

County is maintaining this argument, it has waived it, having
failed to raise it until after this court entered summary against
it earlier this year, about nine years after the Complaint in
this case was filed.
To the extent the County is arguing that no NPDES
permit is necessary because the LWRF’s treated sewage undergoes
changes before it reaches the ocean (i.e., nitrogen is removed
such that less than 100 percent of the nitrogen initially present
in the wastewater actually ends up being discharged into the
ocean), that argument amounts only to a disagreement with this
court’s balancing of the seven functional-equivalent factors,
which took the nitrogen issue into account.

It does not justify

reconsideration.
Finally, this court sees no reason to defer to an
agency position that has been withdrawn.

4

II.

RECONSIDERATION STANDARD.
Citing Rule 60(b) of the Federal Rules of Civil

Procedure1 and Local Rule 60.1,2 the County seeks reconsideration
of the order granting summary judgment to Plaintiffs and of the
judgment entered in Plaintiffs’ favor.

Given the timing of the

motion (filed 24 days after the entry of judgment), it may be
appropriate to treat the County’s motion as one under Rule 59(e)
of the Federal Rules of Civil Procedure, which allows a party to
ask this court to rectify its own mistakes within 28 days of a
final decision.3
(2020).

See Banister v. Davis, 140 S. Ct. 1698, 1703

Under Rules 4(a)(4)(A)(iv) and 4(a)(4)(A)(vi) of Federal

Rules of Appellate Procedure, the timely filing of a Rule 59(e)
motion or a Rule 60(b) motion filed no later than 28 days after
the judgment is entered suspends the finality of the original
order.

See id.
Here, it makes no difference whether the court examines

the County’s reconsideration motion under Rule 59(e) or Rule
60(b), as the motion was filed shortly after the entry of
judgment and this court may reconsider its grant of summary
1

To the extent reconsideration is sought based on Rule 60,
it appears to be based on an alleged “mistake” or on “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(1) and (6).
2

Local Rule 60.1 is inapplicable, as it pertains to
interlocutory orders.
3

Rule 59(e) states, “A motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the
judgment.”
5

judgment under either.

See Sch. Dist. No. 1J, Multnomah Cty.,

Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993); Ryan v.
United States, 2018 WL 4468403, at *1 (N.D. Cal. Sept. 18, 2018);
White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw. 2006).
A successful motion for reconsideration must accomplish
two goals.

First, it must demonstrate some reason that the court

should reconsider its prior decision.

Second, a motion for

reconsideration must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision.

See White, 424 F. Supp. 2d at 1274; Na Mamo O‘Aha ‘Ino

v. Galiher, 60 F. Supp. 2d 1058, 1059 (D. Haw. 1999).

Courts

have established three grounds justifying reconsideration under
Rule 59(e) and Rule 60(b): (1) an intervening change in
controlling law; (2) the availability of new evidence; and
(3) the need to correct clear error or prevent manifest
injustice.

See Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955

(9th Cir. 2013); Mustafa v. Clark County Sch. Dist., 157 F.3d
1169, 1178–79 (9th Cir. 1998); AcandS, Inc., 5 F.3d at 1263;
Galiher, 60 F. Supp. 2d at 1059.
Motions brought under Rule 59(e) and 60(b) are
committed to the discretion of the trial court.

See Casey v.

Albertson's Inc, 362 F.3d 1254, 1257 (9th Cir. 2004) (“Motions
for relief from judgment pursuant to Rule 60(b) are addressed to
the sound discretion of the district court and will not be

6

reversed absent an abuse of discretion.”); McDowell v. Calderon,
197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (noting that district
courts enjoy “considerable discretion” in granting or denying a
motion brought under Rule 59(e)); United States v. Hernandez,
2012 WL 3600295, *2 (D. Haw. Aug.20, 2012).

“Mere disagreement

with a previous order is an insufficient basis for
reconsideration.”

Comeaux v. State of Hawaii, 2007 WL 2300711,

at *1 (D. Haw. Aug. 8, 2007) (citing Leong v. Hilton Hotels
Corp., 689 F. Supp. 1572 (D. Haw. 1988)); see also Bryant v.
Farmer, 460 F. App’x 644, 645 (9th Cir. 2011) (holding that
reconsideration was not warranted when a prisoner simply
disagreed with the court’s ruling).
Furthermore, reconsideration may not be based on
evidence or legal arguments that a movant could have presented at
the time of the challenged decision.

See Kona Enter., Inc. v.

Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Haw.
Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D.
Haw. 2005); see also Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008) (“Rule 59(e) permits a court to alter or amend a
judgment, but it may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised
prior to the entry of judgment.” (quotation marks and citation
omitted)).

7

III.

ANALYSIS.
A.

On Remand, This Court Has Not Applied the “Conduit
Theory.”

In its first argument, the County states that this
court “expressly recognizes that the U.S. Supreme Court’s
functional equivalent analysis is applied to the transmission
path of groundwater from a point source.”
# 13660.

ECF No. 486-1, PageID

The County then accuses this court of “resurrect[ing]

the ‘conduit theory’ already vacated by the U.S. Supreme Court.”
Id., PageID # 13662.

The County is mistaken in accusing this

court of such a resurrection.
In the first place, it was the Ninth Circuit that
rejected the “conduit theory,” which was therefore not before the
Supreme Court except as part of the history of this case.
In the second place, the County is relying on out-ofcontext language.

In support of its accusation, it quotes the

following from the summary judgment order it seeks to have this
court reconsider:
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.” [Hawaii Wildlife Fund, et
al. v. County of Maui,] 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
8

to the ocean is clearly ascertainable, the
discharge is functionally one into navigable
water.” 24 F. Supp. 3d at 998.
ECF No. 486-1, PageID # 13660 (quoting page 27 of this court’s
amended order).

The quoted language was part of this court’s

summary of prior proceedings, not a resurrection of anything.
Indeed, the sentence immediately preceding that quotation stated,
“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.”

Viewed in

context, the language quoted by the County was clearly describing
this court’s 2014 ruling, before the Ninth Circuit issued the
decision that was reviewed by the Supreme Court.

Accordingly, to

the extent the County relies on this language in making its
“resurrection” argument, that reliance is misplaced.
The County also says that this court must be
resurrecting the “conduit theory” because the only way any raw
volume of pollutant could reach the ocean is by means of
groundwater acting as a conduit.

But even without considering

the raw volume, the County must admit that the Supreme Court
factors of time and distance similarly involve pollutants
traveling through groundwater in this case.

9

B.

This Court Did Not Err In Considering the Volume
of Wastewater Reaching Navigable Waters.

The Supreme Court held in this case 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.”
at 1476.

140 S. Ct.

The Supreme Court 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:
Consider, for example, just some of the
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
10

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.
In granting summary judgment to Plaintiffs, this court
examined each of those seven factors, ultimately determining that
the LWRF’s discharge was the functional equivalent of a direct
discharge.

See ECF No. 479, PageID #s 13577-89, 13596-98.

This

court determined that the minimum transit time of 84 days and the
average transit time of 14 to 16 months weighed in favor of
requiring an NPDES permit.

See id., PageID #s 13577-82.

The

court also determined that the relatively short distance the
pollutant traveled (about half a mile) weighed in favor of
requiring an NPDES permit, even if the pollutant traveled both
horizontally and vertically through the aquifer.
#s 13582-84.

See id., PageID

The court determined that the nature-of-material

and the extent-of-dilution or chemical-alteration factors weighed
in favor of not requiring an NPDES permit.
#s 13585-87.

See id., PageID

The court reasoned that the amount of pollutant

entering the ocean relative to the amount of pollutant leaving
the point source weighed in favor of requiring an NPDES permit,
as it was undisputed that 100 percent of the wastewater entered
the ocean.4

This included what was indisputably millions of

4

At the hearing on the reconsideration motion, the County
noted that pollutants placed into groundwater will always find
their way into navigable waters. Plaintiffs, on the other hand,
11

gallons per year entering the ocean just at the locations of a
handful of monitors used in the tracer dye study.
PageID # 13587.

See id.,

Under the circumstances of this case, the court

did not place much weight on the factor examining the manner by
which or area in which the pollutant entered navigable waters.
See id., PageID #s 13587-88.

However, the court did determine

that the factor examining the degree to which the pollutant
maintained its specific identity weighed in favor of requiring an
NPDES permit.

See id., PageID #s 13588-89.

In addition to the seven factors enumerated by the
Supreme Court, this court examined three other factors.

This

court determined that the EPA’s system-design-and-performance
factor (which has since been withdrawn) added little to the
analysis, as the court had already considered much of the
substance of the proposed factor in analyzing the original seven
factors.

See id., PageID #s 13590-92.

The court added its own

factor going to the raw volume of pollutant, determining that the
volume weighed in favor of requiring an NPDES permit.

The court

considered a potential additional factor relating to the impact
of the pollutant on the ecosystem but lacked a sufficient record
noted that 100 percent of some pollutants placed into groundwater
(e.g., rocks, sand, and heat, which are specifically mentioned in
the Clean Water Act’s definition of “pollutant”) may not travel
to the ocean. In either event, there is no dispute in this case
that 100 percent of the LWRF’s wastewater placed in the wells
reaches the ocean or that that wastewater qualifies as a
pollutant when it is placed in the wells and when it emerges into
the ocean.
12

indicating whether that weighed in favor of or against requiring
the permit.

See id., PageID #s 13592-96.

Balancing all the factors, this court ruled that an
NPDES permit was required, noting that the court would reach this
conclusion even if the court examined only the seven factors
enumerated by the Supreme Court.

See id., PageID #s 13597-98.

The County criticizes this court’s consideration of the
volume of pollutant emerging at the seeps.
PageID #s 13660-61.

See ECF No. 486-1,

However, when the Supreme Court referred to

“some of the factors that may prove relevant” before listing the
seven factors, the Supreme Court appeared to recognize that other
factors might influence a court’s decision as to whether there
was the “functional equivalent” of direct discharge.
Consideration of an additional factor along with consideration of
the seven other factors does not automatically create error.
The Supreme Court’s seven factors do not capture the
immensity of the wastewater volume flowing from the LWRF to the
Pacific Ocean.

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.”

This

court does not have before it any scientific study definitively
establishing the precise path of most of the pollutant coming
from the LWRF.

That is, the record only establishes with

specificity the amount of pollutant entering the Pacific Ocean on
particular dates at a handful of nearshore seeps.
13

This court

does not have details about what happens to close to 98 percent
of the wastewater.

But that does not mean that a question of

fact precludes summary judgment.

There is no dispute that 100

percent of the wastewater is discharged into the Pacific Ocean.
If a plaintiff had to prove at trial exactly where each drop of
wastewater reached the ocean, plaintiffs would be assigned an
impossible task.

No plaintiff would ever be able to prove a

violation of NPDES permit requirements in a groundwater case.

In

that event, the Supreme Court might as well have saved itself the
trouble of identifying the seven factors.
Even if this court restricts its consideration to the
undisputed amount of wastewater emerging at the monitored seeps,
the amount of wastewater remains enormous, about 28,000 gallons
per day from Wells 3 and 4 alone.

As this court noted, “[t]hat

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.”

ECF No. 479, PageID # 13593.

The County’s expert, Craig Levken, talks about a
hypothetical pipe running from the LWRF to the Pacific Ocean.
See Decl. of Craig Levken, ECF No. 440-6, PageID # 11120.
Imagine if that pipe was riddled with so many holes that 98
percent of the wastewater from the LWRF left the pipe and 2
percent or less reached the ocean through the pipe.

This court

would have little trouble ruling that the amount that managed to
14

flow through the pipe, or about 28,000 gallons per day, was
sufficient to trigger the NPDES permit requirement.

As the

Supreme Court noted, the Clean Water Act requires an NPDES permit
for the discharge of any pollutant to navigable waters from a
point source.

Hawaii Wildlife Fund, 140 S. Ct. at 1468.

The

County appears to be arguing that this court, in examining the
factor focusing on “the amount of pollutant entering the
navigable waters relative to the amount of the pollutant that
leaves the point source,” should consider only the 2 percent or
less of the pollutant measured at the seeps.

However, that does

not capture the entirety of the situation before this court.

All

of the wastewater ultimately reaches the ocean, and even the
volume of pollutant entering navigable waters at the seeps is so
large that it weighs in favor of requiring an NPDES permit.
The County correctly notes that the NPDES permit
requirement applies to any “person wishing to discharge any
pollution into navigable waters.” Hawaii Wildlife Fund, 140 S.
Ct. at 1468 (2020); Comm. To Save Mokelumne River, 13 F.3d at 309
(“the Act categorically prohibits any discharge of a pollutant
from a point source without a permit”).

But that does not mean

that this court must ignore the scope of the LWRF’s discharge.
In a way, this court’s examination of the raw volume of pollutant
reaching the Pacific Ocean helps to inform this court’s analysis
of the Supreme Court’s factor examining the amount of pollution

15

entering navigable waters compared to the amount of pollutant
leaving the LWRF.

Given the difficulty of determining exactly

where wastewater from the LWRF enters the Pacific Ocean, the
study presented to this court determined that only about 2
percent of the wastewater from Wells 3 and 4 enters the ocean
through a handful of monitored seeps.

The path of the other 98

percent of the wastewater to the ocean has not been traced, but
the 2 percent or less that we do know about is not simply a
thimbleful of pollutant.

That 2 percent or less still represents

about 28,000 gallons per day or millions of gallons per year
(28,000 gallons per day x 365 days per year = 10,220,000 gallons
per year).

So, even though the daily deposit of about 28,000

gallons represents only a small percentage of the total
wastewater dumped into the injection wells, that deposit
represents a huge amount of pollutant entering navigable waters.
That fact militates in favor of requiring an NPDES permit.
At the hearing on the present reconsideration motion,
the County criticized this court’s use of the 2 percent figure,
noting that the County’s expert, Ericson John List, had stated:
“The total mass of injected dye that would be recovered at the
two spring groups is less than 2% of the dye injected.

Where the

remaining 98% of the injected dye entered the ocean is unknown.”
Decl. of Ericson John List ¶ 10(a), ECF No. 440-2, PageID #
11065.

From this the County argued that, interpreting the

scientifically reliable facts in the light most favorable to it,
16

the amount of dye measured at the seeps could be any number less
than 2 percent, perhaps even 0.002 percent, and therefore would
not establish that millions of gallons of sewage are reaching the
ocean every year.

This argument is contradicted by the record.

Paragraph 12 of List’s declaration states that Exhibit
D-14 is an excerpt from his December 4, 2020, Supplemental
Report.

See ECF No. 440-2, PageID # 11066.

Table 2 of that

report estimates the percentage of tracer dye recovered from the
seeps, stating that 1.15 percent of the dye was recovered from
the North Seep Group and that 0.41 percent of the dye was
recovered from the South Seep Group.
# 11178.

See ECF No. 440-20, PageID

Adding those amounts, List estimates that 1.56 percent

of the tracer dye was recovered at the seeps.

This is

significantly more than the County’s 0.002 percent figure posited
during the hearing on this motion.

Even at 1.56 percent,

millions of gallons of LWRF’s sewage discharge into the sea every
year.

This court’s analysis is unaffected by a consideration of

1.56 percent instead of 2 percent.
Additionally, another County expert, Jeffrey Thompson,
Ph.D., similarly says that, based on Table 3-3 of the Tracer Dye
Study (ECF No. 440-10, PageID # 11176), the seeps “account for
only between 0.3% and 1.0% of total outflow at the SSG and 2.1%
to 7.5% of total outflow at the NSG. . . .

Applying this range

of percentage to 2013 Tracer Study’s seep outflow from the LWRF

17

results in estimates of no more than 1.6% of total injectate
entering the ocean through the 183 seeps in the NSG and the 106
seeps in the SSG.”

Decl. of Jeffrey Thompson, Ph.D., ¶ 18, ECF

No. 440-4, PageID # 11100.
The opinions of List and Thompson (the County’s own
experts) establish that much more than 0.002 percent of the dye
emerged at the seeps.

The County also is estopped from arguing

that the amount could be 0.002 percent, having previously
represented at the hearing on the counter motions for summary
judgment that the record establishes what happens with respect to
1.6 percent of the injectate.

See Transcript of Proceedings at

24 (May 24, 2021), ECF No. 462, PageID # 13293.

The County’s

latest argument that the figure might be 0.002 percent is
unsustainable.
Whether this court uses 2 percent or some figure closer
to 1.6 percent, millions of gallons of pollutant from the LWRF
are emerging at the seeps every year.

See Transcript of

Proceedings at 47 (May 24, 2021), ECF No. 462, PageID # 13316
(County admitting at hearing on counter motions for summary
judgment that tens of thousands of gallons of polluted wastewater
reach the ocean every day).

The County cannot credibly maintain

that the record is devoid of evidence establishing that millions
of gallons of the LWRF’s wastewater reach the Pacific Ocean every
year.

18

In footnote 4 of its reconsideration motion, the County
further criticizes this court’s reliance on the 2 percent figure.
The County says that this court, in its 2014 summary judgment
order, noted that 64 percent of LWRF’s wastewater from Wells 3
and 4 discharged in the submarine springs area.
1, PageID # 13662.

See ECF No. 486-

What this court actually stated was that the

injection well study estimated that 64 percent of the dye
injected into Wells 3 and 4 was discharged in the submarine
springs area.

See ECF No. 113, PageID # 3617.

Interpreting the

evidence in the light most favorable to the County with respect
to Plaintiffs’ motion for summary judgment, this court has now
focused on the undisputed fact that about 2 percent of the dye
from Wells 3 and 4 was detected at the monitored seeps located in
the submarine springs area.

This, of course, does not mean that

64 percent of the dye that was estimated to have been released in
the entire submarine springs area was not so released.

But, for

purposes of Plaintiffs’ motion for summary judgment, this court
did not take into account the estimated location where 64 percent
(or any percent more than 2 percent) of the wastewater entered
the ocean.

The court simply noted the difficulty any plaintiff

would have in establishing where groundwater was percolating into
the ocean.
That difficulty is precisely why taking into account
the massive scale of the discharge makes sense.

Even if the

record does not reflect the exact path taken by 98 percent of the
19

wastewater the LWRF dumps into its wells, the record clearly
establishes what happens with respect to about 2 percent (or
approximately 28,000 gallons per day).

This 2 percent is large

enough in volume to allow this court to determine that there is
the functional equivalent of a direct discharge such that the
LWRF is required to get an NPDES permit.
Notwithstanding the difficulty of establishing exactly
where and when the bulk of the wastewater enters the ocean, it
cannot be overstated that all of the wastewater does indeed enter
the ocean:
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”);5
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.

5

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.
20

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 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
effluent[] 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”).
ECF No. 479, PageID #s 13553-54.6

This circumstance also

supports this court’s determination that the millions of gallons
of wastewater that the LWRF dumps into its wells are the
functional equivalent of a direct discharge.
At the hearing on the present reconsideration motion,
the County took issue with this court’s statement that 100

6

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.
21

percent of the wastewater reaches the ocean, citing PageID
# 13592.

However, as detailed above, the record clearly supports

that statement.
At the heart of the County’s argument challenging this
court’s statement that 100 percent of the pollutant reaches the
ocean is the County’s focus on the lower toxicity of the
pollutant reaching the ocean as compared to the toxicity of the
wastewater before it leaves the injection wells and reaches the
groundwater.

But even if the pollutant reaching the ocean has a

lower toxicity, it remains a pollutant subject to the requirement
for an NPDES permit.
This court stated in its summary judgment order, “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.”
479, PageID # 13592.

See ECF No.

The County, far from arguing that less

wastewater enters the ocean than is placed into the injection
wells, is asking this court to consider the changes to the
wastewater before it enters the ocean as somehow rendering
inapposite the notion that 100 percent of the pollutant enters
the ocean.

This court’s summary judgment ruling has in fact

addressed the changes to the content of the wastewater in the
course of applying the dilution/chemical change and specific
identity factors.

See ECF No. 479, PageID #s 13585-87, 13588-89.

22

Moreover, even accepting the County’s proposition that 86 percent
of the nitrogen has been removed from the wastewater by the time
it reaches the ocean, what emerges from the seeps into the
Pacific Ocean is still a pollutant.
This court does not have before it evidence identifying
all the other toxins that may be in the LWRF’s sewage.

Any

number of chemicals or toxins may remain in that sewage when it
enters the ocean.

Because the Clean Water Act defines pollutants

broadly as including “sewage” and municipal waste, the discharge
from the wells remains a pollutant for purposes of that act even
if much of the nitrogen is removed before the wastewater reaches
the ocean.
The County additionally complains that this court’s
consideration of the amount of wastewater entering the Pacific
Ocean was improper as it does not pertain to the movement and
manner of transmission of pollutants.

However, the immensity of

the discharge into the Pacific Ocean gives context to this case.
Even without considering the massive discharge at issue, this
court would find that the functional equivalent test has been
satisfied.

The millions of gallons of wastewater from the LWRF

entering the Pacific Ocean every year simply bolster this court’s
determination that a permit is required.

23

C.

Reconsideration is Not Warranted by This Court’s
Statement About the Amount of Dye Emerging at the
Seeps.

The County says this court erred when it stated that 2
percent of the dye from the tracer dye study was “recovered” at
the two seeps.

The County says that this court did not take into

account that the 2 percent would only be recovered over a period
of time, with 50 percent of it remaining in the aquifer 300 days
after injection, 30 percent of it remaining in the aquifer 400
days after injection, and 10 percent of it remaining in the
aquifer 600 to 700 days after injection.7

The County’s argument

7

At the hearing on the present reconsideration motion, the
County argued that this court erred in its summary judgment order
in stating that “70 percent of the dye [in the 2013 tracer dye
study], according to the County’s expert, entered the ocean
within 400 days of being placed into Wells 3 and 4.” See ECF No.
479, PageID # 13563. The County contended that its expert was
talking about 70 percent of the dye in the less than 2 percent of
the wastewater measured at the seeps, rather than 70 percent of
all of the dye placed into Wells 3 and 4.
The County’s expert testified at his deposition: “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? A: You can infer that from what
I said. 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.” ECF No. 432-10, PageID
# 10480. This is consistent with the County’s own concise
statement, which states, “Statistical analysis shows that of the
FLT injected at wells 3 and 4, 50% was resident in the aquifer
for more than 300 days after the injection, 30% was resident for
more than 400 days, and 10% for more than 600-700 days.” ECF No.
440, PageID # 11054. The County is held to its representations
in its concise statement. See also Local Rule 56.1(b) and (g).
24

misses the mark by failing to account for the continuous nature
of the LWRF’s discharge.
The tracer dye study illustrates the connection between
LWRF’s daily dumping of 3 to 5 million gallons of wastewater into
its four injection wells (about 2.5 million of which was
deposited daily into Wells 3 and 4, which is where the tracer dye
was placed) and the emergence of the wastewater at the two
monitored seeps.

This court has examined the length of time it

takes for the wastewater to reach the ocean in its functional
equivalent analysis and does not reexamine that here.

The tracer

dye substitutes for the wastewater in terms of showing the path
taken by the pollutant; it provides a snapshot of the conditions
from which inferences can be made.

That is, the tracer dye was

placed into the injection wells on one day and was detected in
the nearby ocean over the course of a number of subsequent days.
Even if it took 3 years for all of the wastewater from a single

This court actually had sought clarification on how long it
took before more than half of the treated wastewater injected
into Wells 3 and 4 reached the Pacific Ocean. See ECF No. 456
Question 1(b), PageID # 11878. The County did not answer
directly, stating only, “Of 3.2 million gallons injected July 28,
2011, half of <2% emerging in the .327 m2 seep vent area takes
300 to 400 days.” ECF No. 459, PageID # 12510. The declaration
of the County’s expert, List, supports that statement. ECF No.
440-2, PageID 11068. This court referred to that List
declaration on the same page that it made the statement about 70
percent of the dye. See ECF No. 479, PageID # 13563. Without
addressing what may be a discrepancy between List’s deposition
testimony and his later declaration, this court states that, even
if the court only considers the percentage of dye recovered at
the seeps over time, this court’s analysis remains unchanged.
25

day to emerge at the seeps, because the LWRF dumps millions of
gallons every day into its wells, over time the cumulative effect
would be for 2 percent of the daily dump to emerge at the seeps.
Suppose 100 gallons of pollutant are put into a well
every day.

Further suppose that the pollutant travels at a

constant rate with 25 percent of it reaching the ocean on day 2,
25 percent of it reaching the ocean on day 3, 25 percent of it
reaching the ocean on day 4, and the final 25 percent of it
reaching the ocean on day 5.

If 100 gallons of pollutant are

added to the well every day, 50 gallons will reach the ocean on
Day 3 (25 from the first 100 gallons and 25 from the second 100
gallons), 75 gallons will reach the ocean on Day 4 (25 from the
first 100 gallons, 25 from the second 100 gallons, and 25 from
the third 100 gallons), and 100 gallons will reach the ocean on
Day 5 and every day thereafter (25 from the first 100 gallons, 25
from the second 100 gallons, 25 from the third 100 gallons, and
25 from the fourth 100 gallons).

In other words, over a period

of time, the cumulative effect will be for an equivalent amount
to emerge as was put in on any given day.

That same cumulative

effect applies to the 2 percent of the LWRF wastewater emerging
at the seeps.
This court admittedly does not know the precise
amount of pollutant being discharged every day into the ocean at
the seeps.

But no party has claimed that a trial would provide a

better record on that subject than the court now has.
26

What is

clear is that, whether that amount is a little more or a little
less on any given day, millions of gallons of pollutants are
entering the ocean every year at the seeps.
D.

The County Has Waived Any Argument That the
Treated Wastewater Is Not a Pollutant For Purposes
of the Clean Water Act.

The County’s position on whether the wastewater
entering the Pacific Ocean is a pollutant is not entirely clear.
In its reconsideration briefing, the County argued that this
court committed a manifest error when it stated on pages 30 and
31 of its amended order:
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.
ECF No. 486-1, PageID #s 13649, 13656, 13666 (arguing that this
court’s treatment of wastewater as a pollutant was in error and
did not meet the definition of a pollutant in 33 U.S.C.
§ 1362(6)).

Specifically, the County complained that this court

erred in determining that LWRF’s wastewater was a pollutant.
This, however, was not in dispute until the County said it was in
27

the present reconsideration motion.

In waiting to raise this

matter until the reconsideration phase, the County has waived
this argument.
At the hearing on the present reconsideration motion,
this court asked the County to point out where in the record it
might have raised this issue earlier.

At that point, the County

said it was not challenging the treatment of the wastewater as a
pollutant.

This should have ended the matter, but it did not.

The County complicated the discussion by then alternating between
referring to the wastewater as a pollutant and referring to the
components of the wastewater, like nitrogen, as the true
pollutants.

Because the County’s changing positions and

alternating uses of the term “pollutant” have created confusion,
this court proceeds to address all of the County’s assertions on
this score.
In footnote 3 of this court’s Amended Order, ECF No.
479, PageID # 13554, this court stated, “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.”

The Clean Water Act defines “pollutant” broadly,

including in its definition “dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,

28

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) (emphasis added).

It therefore

makes sense that the parties proceeded for years in this case
never disputing that the LWRF’s treated wastewater (treated
sewage) qualified as a “pollutant.”
In Plaintiffs’ motion for summary judgment, they
stated, “Here, Defendant has never disputed that (1) the LWRF’s
treated sewage is a ‘pollutant,’ (2) the nearshore ocean
receiving that pollution is a ‘navigable water,’ (3) the
injection wells are ‘point sources,’ and (4) Defendant lacks an
NPDES permit for discharges from the LWRF injection wells.”
ECF No. 431-1, PageID # 10337.

See

Plaintiffs were seeking a ruling

stating that the LWRF’s discharge of treated wastewater without
an NPDES permit violated the Clean Water Act.

In aid of

obtaining such a ruling they argued that the LWRF’s discharge of
treated wastewater was the functional equivalent of a direct
discharge of a pollutant into the Pacific Ocean.

In opposing

Plaintiffs’ motion for summary judgment, the County did not argue
that the LWRF’s treated sewage or wastewater failed to qualify as
a pollutant.

If the County had wanted to raise that argument, it

was incumbent on the County to do so before this court granted
summary judgment in favor of Plaintiffs.

29

The County’s opposition

never contested Plaintiffs’ statement that the LWRF’s treated
sewage or wastewater qualified as a pollutant for purposes of the
Clean Water Act.

See ECF No. 442-1.

Indeed, in its Brief for Petitioner to the Supreme
Court, the County had stated, “There is no disagreement that the
pollutants here reached navigable water only by way of
groundwater.”

2019 WL 2085683, *5 (2019).

Thus, the Supreme

Court proceeded with the understanding that the discharges
reaching the ocean were pollutants.
It is only after this court ruled and judgment was
entered that the County, for the first time, challenged the
description of the discharges as pollutants.
untimely.

This challenge is

See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &

Co., 571 F.3d 873, 880 (9th Cir. 2009) (“A motion for
reconsideration ‘may not be used to raise arguments or present
evidence for the first time when they could reasonably have been
raised earlier in the litigation.’” (quoting Kona Enters., Inc.
v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)); Soriano
v. Countrywide Home Loans, Inc., 2011 WL 2175603, at *3 (N.D.
Cal. June 2, 2011) (“when a party faces a burden in opposing a
motion for summary judgment, waiver can occur if the party fails
to carry that burden by making argument or introducing evidence,
loses summary judgment, and then moves for reconsideration on the
basis of information it had access to when opposing the summary

30

judgment motion”); see also Exxon Shipping, 554 U.S. at 485 n.5
(holding that Rule 59(e) may not be used to raise arguments or
present evidence that could have been raised prior to the entry
of judgment).

The County may not now seek to vacate the judgment

by making an argument that it could have made before summary
judgment was granted in Plaintiffs’ favor.
This court notes that the County also argues that this
court erred when it stated “that treated wastewater ‘as a whole
is [or can be] considered a pollutant.’”
PageID # 13667.
context.

See ECF No. 486-1,

The County takes the court’s language out of

This court’s full statement was as follows:
The Supreme Court’s seven factors discussed
above 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,
more than a million gallons of wastewater is
discharged from a single well every day, all
of it going to the sea.
31

ECF No. 479, PageID # 13592 (emphasis added).
The County’s use of quotation marks and brackets leaves
a misleading impression, although it is correct that this court
treated the LWRF’s sewage or wastewater as a pollutant given the
absence of any dispute about the matter.

Under these

circumstances, the County has waived any argument that the
wastewater as a whole, regardless of how much or how little it
contains of any particular toxin or

chemical, is not a

pollutant.
Even if the wastewater that reaches the sea has a
reduced amount of nitrogen in it, what reaches the sea is still a
pollutant for purposes of the Clean Water Act.

The Clean Water

Act’s definition of “pollutant” does not speak to individual
chemicals that might be contained in a substance like wastewater.
Instead, that definition refers to substances likely to contain a
multitude of chemicals, none of which is mentioned by the Clean
Water Act.
This court examined the diminished nitrogen in
balancing the seven functional-equivalent factors.

The County’s

present focus on the reduced amount of nitrogen in the wastewater
that enters the sea does not warrant reconsideration.

See ECF

No. 479, PageID #s 13585-87 (determining that the
dilution/chemical-change factor weighs in favor of not requiring
an NPDES permit).

The LWRF’s sewage or municipal waste, which

32

this court has called “wastewater,” is the relevant pollutant,
not nitrogen.
In any event, to the extent the County is arguing that
this court should be examining the individual toxins or chemicals
in the treated wastewater, the County’s argument results in a
distinction without a difference.

Under the Supreme Court’s

functional equivalent test, this court examines how the pollutant
has changed while going from the point source to navigable
waters.

Here, the only changes the County pointed to were the

mixing of the wastewater with groundwater and the lessening of
nitrogen.

See ECF No. 442-1, PageID #s 11362-62, 11364-65.

This

court has already examined both changes.
The court is also unpersuaded by the County’s slippery
slope argument.

The county postulates that, if the wastewater

itself is a pollutant, then there is a possibility that
landowners using reclaimed wastewater might have to get an NPDES
permit.

Any such possibility would require this court to examine

whether there was a point source discharging a pollutant into
navigable waters in a manner functionally equivalent to a direct
discharge.

While there is a possibility that treated wastewater

used to water land could find its way to the aquifer and then
into the ocean, whether that would trigger NPDES permitting
requirements depends on the circumstances and is not, in any
event, now before this court.

33

This court does not know whether the reclaimed
wastewater being supplied to landowners is the same as the
treated wastewater being dumped into the wells.

Nor is there

anything in the record establishing that the reclaimed wastewater
is actually flowing into the aquifer.
be inapposite.

The County’s analogy may

Certainly the present record is insufficient to

allow this court to apply the Supreme Court’s seven factors to
that purported analogy.
E.

This Court Committed No Error in Declining to Give
Deference to What is Now a Withdrawn Agency
Guidance.

On January 14, 2021, the EPA issued “guidance to the
regulated community and permitting authorities” regarding the
determination of whether a discharge of a pollutant into
groundwater that then travels to navigable water is or is not
subject to the NPDES permitting requirements.
(copy of Guidance Memorandum).

See ECF No. 473-2

The EPA itself noted that its

guidance “d[id] not have the force and effect of law and it does
not bind the public in any way.”

Id. n.1, PageID # 13491.

The

County argues that this court erred in failing to give the EPA’s
guidance deference or more weight despite this court’s
determination that the EPA’s proposed system-design-andperformance factor did not add anything to the analysis in this
case.

34

Since the filing of the County’s motion for
reconsideration, the EPA has withdrawn the guidance.
490-1.

See ECF No.

The EPA explained why it was withdrawing the guidance:
Although the guidance stated that it lacked
the force and effect of law, the Office of
Water is rescinding the guidance for two
primary reasons. First, the eighth factor
identified in the guidance as part of the
“functional equivalent” analysis and
described as “the design and performance of
the system or facility from which the
pollutant is released,” is not consistent
with the Clean Water Act or the Supreme Court
decision in County of Maui v. Hawaii Wildlife
Fund because, among other things, the
additional factor introduces an element of
intent that is not reflected in or consistent
with the County of Maui decision. 140 S. Ct.
1462 (2020) (County of Maui). Second, the
guidance was issued without proper
deliberation within EPA or with our federal
partners.

Id.
This court cannot be said to have erred in failing to
follow guidance that is no longer valid and that the federal
agency itself thinks was wrong and improperly issued.

35

IV.

CONCLUSION.
For the foregoing reasons, the motion for

reconsideration is denied.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 20, 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
DENYING MOTION FOR RECONSIDERATION

36