Hawai‘i Wildlife Fund v. Cnty. of Maui

• Decision Date: 01 February 2018
• Docket Number: No. 15-17447,15-17447
• Parties: HAWAI'I WILDLIFE FUND, a Hawaii non-profit corporation; Sierra Club—Maui Group, a non-profit corporation; Surfrider Foundation, a non-profit corporation; West Maui Preservation Association, a Hawaii non-profit corporation, Plaintiffs–Appellees, v. COUNTY OF MAUI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

886 F.3d 737

HAWAI'I WILDLIFE FUND, a Hawaii non-profit corporation; Sierra Club—Maui Group, a non-profit corporation; Surfrider Foundation, a non-profit corporation; West Maui Preservation Association, a Hawaii non-profit corporation, Plaintiffs–Appellees,

v.COUNTY OF MAUI, Defendant–Appellant.

No. 15-17447

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 12, 2017, University of Hawaii Manoa

Filed February 1, 2018

Amended March 30, 2018

Michael R. Shebelskie (argued), Hunton & Williams LLP, Richmond, Virginia; Colleen P. Doyle, Los Angeles, California; Patrick K. Wong and Richelle M. Thomson, County of Maui, Wailuku, Maui, Hawaii; for Defendant–Appellant.

David L. Henkin (argued) and Summer Kupau–Odo, Earthjustice, Honolulu, Hawaii, for Plaintiffs–Appellees.

David Y. Chung, Thomas A. Lorenzen, Kirsten L. Nathanson, and Mark Thomson, Crowell & Moring LLP, Washington, D.C., for Amici Curiae Association of American Railroads, American Farm Bureau Federation, American Iron and Steel Institute, American Petroleum Institute, National Association of Manufacturers, National Mining Association, The Fertilizer Institute, and Utility Water Act Group.

Shawn Hagerty, Andre Monette, and Rebecca Andrews, Best Best & Krieger LLP, San Diego, California; Roderick E. Walston, Best Best & Krieger LLP, Walnut Creek, California; for Amici Curiae Association of California Water Agencies, California Association of Sanitation Agencies, California State Association of Counties, International Municipal Lawyers Association, League of California Cities, National Association of Clean Water Agencies, National Association of Counties, National League of Cities, National Water Resources Association, and Watereuse Association.

Frederick H. Turner, R. Justin Smith, and Aaron P. Avila, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Karyn Wendelowski, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Amicus Curiae United States.

Nicholas C. Dranias, Assistant Attorney General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Amici Curiae States of Arizona, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Nevada, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wyoming.

Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.

ORDER AND AMENDED OPINION

The Opinion filed on February 1, 2018, is amended as follows:

1. On slip opinion page 12, footnote 2, the following text was added to the end of the footnote: sister circuits have concluded groundwater is a navigable water.> See Rice v. Harken Expl. , 250 F.3d 264, 270 (5th Cir. 2001) ; Vill. of Oconomowoc Lake v. Dayton Hudson Corp. , 24 F.3d 962, 965 (7th Cir. 1994). We are not suggesting that the CWA regulates all groundwater. Rather, in fidelity to the statute, we are reinforcing that the Act regulates point source discharges to a navigable water, and that liability may attach when a point source discharge is conveyed to a navigable water through groundwater. Our holding is therefore consistent with Rice , where the Fifth Circuit required some evidence of a link between discharges and contamination of navigable waters, 250 F.3d at 272, and with Dayton Hudson , where the Seventh Circuit only considered allegations of a "potential [rather than an actual] connection between ground waters and surface waters," 24 F.3d at 965.>

2. On slip opinion page 19, footnote 3, the following text was added to the end of the footnote: See Alaska , 749 F.2d at 558 ; Ecological Rights , 713 F.3d at 508 ; supra , at 12–15.>

3. On slip opinion at page ––––, the following text replaces the sentence after the citation to Haw. Wildlife , 24 F.Supp.3d at 1000 :

With these amendments, Judge McKeown voted to deny County of Maui's Petition for Rehearing En Banc. Judge Schroeder and Judge Nelson recommended denial of petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc.

The petition for rehearing en banc is DENIED . No further petitions for rehearing or rehearing en banc may be filed.

OPINION

D.W. NELSON, Senior Circuit Judge:

The County of Maui ("County") appeals the district court's summary judgment rulings finding the County violated the Clean Water Act ("CWA") when it discharged pollutants from its wells into the Pacific Ocean, and further finding it had fair notice of its violations. Hawai'i Wildlife Fund, Sierra Club—Maui Group, Surfrider Foundation, and West Maui Preservation Association ("Associations") urge us to uphold these rulings. For the reasons set forth below, we affirm the district court.

BACKGROUND

1. The Lahaina Wells and the Effluent Injections

The County owns and operates four wells at the Lahaina Wastewater Reclamation Facility ("LWRF"), the principal municipal wastewater treatment plant for West Maui. Wells 1 and 2 were installed in 1979 as part of the original 1975 plant design, and Wells 3 and 4 were added in 1985 as part of an expansion project. Although constructed initially to serve as a backup disposal method for water reclamation, the wells have since become the County's primary means of effluent disposal into groundwater and the Pacific Ocean.

The LWRF receives approximately 4 million gallons of sewage per day from a collection system serving approximately 40,000 people. That sewage is treated at the Facility and then either sold to customers for irrigation purposes or injected into the wells for disposal. The County disposes of almost all the sewage it receives—it injects approximately 3 to 5 million gallons of treated wastewater per day into the groundwater via its wells.

That some of the treated effluent then reaches the Pacific Ocean is undisputed. The County expressly conceded below and its expert confirmed that wastewater injected into Wells 1 and 2 enters the Pacific Ocean. The Associations submitted various studies and expert declarations establishing a connection between Wells 3 and 4 and the ocean. Although the County quibbles with how much effluent enters the ocean and by what paths the pollutants travel to get there, it concedes that effluent from all four wells reaches the ocean.

The County has known this since the Facility's inception. The record establishes the County considered building an ocean outfall to dispose of effluent directly into the ocean but decided against it because it would be too harmful to the coastal waters. It opted instead for injection wells it knew would affect these waters indirectly. When the Facility underwent environmental review in February 1973, the County's consultant—Dr. Michael Chun—stated effluent that was not used for reclamation purposes would be injected into the wells and that these pollutants would then enter the ocean some distance from the shore. The County further confirmed this in its reassessment of the Facility in 1991.

According to the County's expert, when the wells inject 2.8 million gallons of effluent per day, the flow of effluent into the ocean is about 3,456 gallons per meter of coastline per day—roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline. About one out of every seven gallons of groundwater entering the ocean near the LWRF is comprised of effluent from the wells.

2. The Tracer Dye Study

In June 2013, the U.S. Environmental Protection Agency ("EPA"), the Hawaii Department of Health ("HDOH"), the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii conducted a study (the "Tracer Dye Study" or "Study") on Wells 2, 3, and 4 to gather data on, among other things, the "hydrological connections between the injected treated wastewater effluent and the coastal waters." The Study involved placing tracer dye into Wells 2, 3, and 4, and monitoring the submarine seeps off Kahekili Beach to see if and when the dye would appear in the ocean.

The Study concluded "a hydrogeologic connection exists between ... Wells 3 and 4 and the nearby coastal waters of West Maui." Eighty-four days after injection, tracer dye introduced to Wells 3 and 4 began to emerge "from very nearshore seafloor along North Kaanapali Beach," near Kahekili Beach Park, about a half-mile southwest of the LWRF. According to the Study, the effluent travels in this southwesterly path "due to geologic controls that include a hydraulic barrier created by valley fills to the northwest." The Study found "64 percent of the treated wastewater injected into [Wells 3 and 4] currently discharges [into the ocean]." It further concluded "[t]he major discharge areas are confined to two clusters, only several meters wide, with very little discharge [occurring] in between and around them."

Tracer dye from Well 2 was not detected in the ocean. But this was because Wells 3 and 4—located between Well 2 and the areas in the ocean where the wastewater discharges—"inject the majority of effluent," which likely diverted the injected wastewater from Well 2 into taking "a different path other than directly towards the submarine springs" where the wastewater from Wells 3 and 4 discharges. If Well 2 were to receive most of the effluent at the Facility, that effluent would also take the southwesterly path taken by the wastewater from Wells 3 and 4. And "[b]ecause Well 1 is located in very close proximity to Well 2, ... the [T]racer [S]tudy's predictions for the fate of effluent from Well 2 can be used to predict the fate of effluent from Well 1," according to the Associations' expert Dr. Jean Moran.

3. The District Court's Summary Judgment Rulings

The County appeals three of the district court's summary judgment rulings. In the first, the district court found the County liable as to...