Haw. Wildlife Fund, Non-Profit Corp. v. Cnty. of Maui

HAWAI`I WILDLIFE FUND, a Hawaii non-profit corporation;SIERRA CLUB-MAUI GROUP, a non-profit corporation;SURFRIDER FOUNDATION, a non-profit corporation; andWEST MAUI PRESERVATION ASSOCIATION, a Hawaii non-profit corporation, Plaintiffs, v. COUNTY OF MAUI, Defendant.

CIVIL NO. 12-00198 SOM/BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

January 23, 2015

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION.

Before the court are cross-motions for partial summary judgment filed by Plaintiffs Hawai`i Wildlife Fund, Sierra Club, Surfrider Foundation, and West Maui Preservation Association (collectively, "Plaintiffs") and by Defendant County of Maui (the "County"). The cross-motions concern whether the County has violated the Clean Water Act by discharging effluent without a National Pollutant Discharge Elimination System ("NPDES") permit at two of four injection wells at the Lahaina Wastewater Reclamation Facility ("LWRF"). The court grants Plaintiffs' motion and denies the County's motion.

II. FACTUAL BACKGROUND.

The County of Maui operates the LWRF, a wastewater treatment facility approximately three miles north of the town of Lahaina on the island of Maui. See ECF No. 41, PageID # 451; ECF No. 139-10, PageID # 5029. The facility receives approximately four million gallons per day of sewage from a collection system serving approximately 40,000 people. See ECF No. 139-10, PageID # 5029. The facility filters and disinfects the sewage, then releases the treated effluent (sometimes called "reclaimed water" or "wastewater") into four on-site injection wells. See id. The effluent reaches a groundwater aquifer, the precise depth of which "fluctuates somewhat, depending on water inputs and other conditions." The aquifer contains "a sufficient quantity of ground water to supply a public water system." See ECF No. 129-13, PageID # 4230.

This court granted summary judgment to Plaintiffs as to the County's liability under the Clean Water Act for discharges of effluent into two of the injection wells, wells 3 and 4, that cause pollutants to make their way to the Pacific Ocean. See ECF No. 113. Both parties now seek summary judgment on the issue of whether the County has violated the Clean Water Act by discharging effluent into the two remaining wells, wells 1 and 2.

The Environmental Protection Agency ("EPA"), the State of Hawaii Department of Health ("DOH"), the U.S. Army Engineer

Research and Development Center, and researchers at the University of Hawaii conducted a study "to provide critical data about the possible existence of a hydraulic connection between the injection of treated wastewater effluent at the [LWRF]. . . and nearby coastal waters, confirm locations of emerging injected effluent discharge in these coastal waters, and determine a travel time from the LWRF injection wells to the coastal waters." ECF No. 139-10, PageID # 5026. The study involved placing tracer dye into injection wells 2, 3, and 4, and monitoring the submarine springs of Kahekili Beach on Maui's west shore. See id.

Although dye introduced into wells 3 and 4 was detected at the seeps (i.e., the areas where the groundwater reaches the surface) eighty-four days after being placed in those wells, dye introduced to well 2 was not detected. Id., PageID #s 5028, 5042. The study concluded that the presence of dye from wells 3 and 4 at the seeps "conclusively demonstrate[s] that a hydrogeologic connection exists between LWRF Injection Wells 3 and 4 and the nearby coastal waters of West Maui." Id., PageID # 5028. No tracer study has been conducted on well 1. See ECF No. 127, PageID # 3733; ECF No. 139, PageID # 4889.

Irrespective of the tracer study's results for well 2 and the lack of such a study for well 1, the parties do not dispute that effluent pumped into wells 1 and 2 eventually findsits way to the Pacific Ocean. See ECF No. 129, PageID # 3933; ECF No. 136, PageID # 4515. Though the County contends that the point of entry into the ocean of flow from wells 1 and 2 cannot be identified, the County acknowledges that there is a hydrogeologic connection between wells 1 and 2 and the ocean. See ECF No. 136, PageID # 4515. Indeed, this court repeatedly confirmed at the hearing on the present cross-motions that the County was expressly conceding that pollutants introduced by the County into wells 1 and 2 were making their way to the ocean.

Plaintiffs contend that the County's continued discharge of effluent into wells 1 and 2 without an NPDES permit violates the Clean Water Act. See ECF No. 128-1, PageID # 3927. The County contends that it is not subject to liability with respect to wells 1 and 2. See ECF No. 125, PageID # 3708.

III. STATUTORY FRAMEWORK.

The Clean Water Act, passed in 1972, was intended by Congress "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To further that objective, the Clean Water Act prohibits the "discharge of any pollutant" unless certain provisions of the Clean Water Act are complied with. See 33 U.S.C. § 1311(a). The Clean Water Act defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). In relevant part,the Clean Water Act defines "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U.S.C. § 1362(6). The Clean Water Act defines "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The Clean Water Act defines "point source" as:

any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342.

Plaintiffs sued the County, seeking to compel it to apply for and comply with the terms of an NPDES permit, and to pay civil penalties for discharges Plaintiffs contend were unlawful.

IV. STANDARD.

Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material factand the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movant must support his or her position that a material fact is or is not genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls on the moving party toidentify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., Inc., 809 F.2d at 630. At least some "'significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587); accord Addisu, 198 F.3d at 1134 ("There must be enoughdoubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").

All evidence and inferences must be construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is...