Hawai‘i Wildlife Fund v. Cnty. of Maui

• Decision Date: 30 May 2014
• Docket Number: Civil No. 12–00198 SOM/BMK.
• Citation: 24 F.Supp.3d 980
• Court: U.S. District Court — District of Hawaii
• Parties: HAWAI‘I WILDLIFE FUND, a Hawaii non-profit corporation; Sierra Club–Maui Group, a non-profit corporation; Surfrider Foundation, a non-profit corporation; and West Maui Preservation Association, a Hawaii non-profit corporation, Plaintiffs, v. COUNTY OF MAUI, Defendant.

24 F.Supp.3d 980

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

v.COUNTY OF MAUI, Defendant.

Civil No. 12–00198 SOM/BMK.

United States District Court, D. Hawai‘i.

Signed May 30, 2014.

David L. Henkin, Summer M. Kupau, EarthJustice Legal Defense Fund, Honolulu, HI, for Plaintiffs.

Colleen P. Doyle, Hunton & Williams LLP, Los Angeles, CA, Patrick K. Wong, Richelle M. Thomson, Thomas W. Kolbe, Department of the Corporation Counsel MAUI, Wailuku, HI, for Defendant.

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

SUSAN OKI MOLLWAY, Chief Judge.

I. INTRODUCTION.

Plaintiffs Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation, and West Maui Preservation Association move for partial summary judgment against Defendant County of Maui, arguing that the undisputed evidence demonstrates that the County has violated the Clean Water Act by discharging effluent, without a National Pollutant Discharge Elimination System (“NPDES”) permit, at four injection wells at the Lahaina Wastewater Reclamation Facility (“LWRF”). Plaintiffs contend that the wastewater eventually finds its way into the ocean on Maui's west shore.

The County brings its own motion, arguing that, given the County's application for an NPDES permit, the court should dismiss or stay this case to give Hawaii's Department of Health and the Environmental Protection Agency an opportunity to consider the need for a permit in the first instance.

The County concedes, and the undisputed evidence shows, that pollutant discharged at the two largest wells at the LWRF is migrating into the ocean. The court has not been given any firm date for a final decision on the County's NPDES permit application. The court therefore denies the County's motion for stay or dismissal and grants Plaintiffs' motion for partial summary judgment.

II. 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 Tracer Dye Study Final Report at ES–21, ECF No. 73–10. The facility receives approximately four million gallons per day of sewage from a collection system serving approximately 40,000 people. The facility filters and disinfects the sewage, then releases the treated effluent (sometimes called “reclaimed water” or “wastewater”) into four on-site injections wells. Id. The injection wells are long pipes into which effluent is pumped. The effluent then travels approximately 200 feet underground into a shallow groundwater aquifer beneath the facility. See 1993 Injection Well Report, ECF No. 73–21. While “the precise depth of this aquifer fluctuates somewhat, depending on water inputs and other conditions,” it contains “a sufficient quantity of ground water to supply a public water system.” UIC Consent Decree at 28–29, ECF No. 73–24. The LWRF typically discharges three to five million gallons of effluent into the four injection wells on a daily basis. See Tracer Dye Study Final Report at 1–16. Approximately 80% of the effluent is discharged from wells 3 and 4. Id. at ES–21.

It is undisputed that effluent pumped into injection wells 3 and 4 eventually finds its way to the Pacific Ocean, emerging through “submarine springs” in the waters off Kahekili Beach on Maui's west shore. Id. at ES–2, 3. This finding was the conclusion of a study conducted jointly by the EPA, the Hawaii Department of Health (“DOH”), the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii. The study involved placing tracer dye into each of the LWRF injection wells and monitoring the submarine seeps off Kahekili Beach to see if and when the dye would flow into the ocean. Id. Dye from wells 1 and 2 did not emerge at the seeps, but the dye introduced into wells 3 and 4 was detected eighty-four days after being placed in the wells. Id. The 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.” Id. at ES3. The study further estimated that “64% of the dye injected into Wells 3 and 4 will [eventually be] discharged at the submarine spring areas.” Id. As a result of that finding, the report also concluded that “64% of the treated wastewater injected into [the] wells currently discharges from the submarine spring areas” and into the ocean. Id.

The County appears to have been aware for some time of the hydrologic connection between the aquifer under the LWRF and the ocean. A 1991 environmental assessment, conducted by the County's Department of Public Works, noted that treated effluent—including suspended solids, dissolved oxygen, nitrogen, and phosphorous—flows from the injection wells into the ocean. See LWRF Environmental Assessment, ECF No. 73–33.

In 2007, the University of Hawaii at Manoa conducted a study that showed an elevated level of a nitrogen isotope in algae growing in nearshore waters south of the LWRF. See Declaration of Jennifer E. Smith ¶ 8–9, ECF No. 72–2. The study concluded that the nitrogen came from the LWRF. Id. The United States Geological Survey also did a study that found “wastewater presence” in the ocean and elevated levels of a nitrogen isotope in ocean water samples. See A Multitracer Approach to Detecting Wastewater Plumes from Municipal Injection Wells in Nearshore Marine Waters at Kihei and Lahaina, ECF No. 73–13.

In 2010, the EPA responded to the County's request to renew its Underground Injection Control (“UIC”) permit for the LWRF by informing the County that recent studies “strongly suggest that effluent from the facility's injection wells is discharging into the near shore coastal zone of the Pacific Ocean.” EPA Letter, ECF No. 73–34.

Plaintiffs' experts contend that the water emerging from the submarine seeps near Kahekili beach is significantly affecting the chemical, physical, and biological integrity of the nearshore water. See generally Declaration of Adina Paytan, ECF No. 73–1; Smith Decl. In particular, Plaintiffs' experts conclude that the water near the seeps has elevated levels of inorganic nitrogen and phosphorus, low salinity, low pH, and high temperature. See Paytan Decl. ¶¶ 5, 23–36; Smith Decl. ¶¶ 13–40. The County's experts admit that the water directly above the seeps bears this properties, but argues that when the water mixes with ocean water these effects rapidly diminish. Declaration of Steven Dollar ¶¶ 9–14, ECF No. 79–2; Declaration of Susan C. Paulsen ¶¶ 19, 21–23, ECF No. 79–3. The County's experts conclude that the effect on nearshore water is not significant.Id.

Plaintiffs argue that the impact of the effluent on Kahekili's nearshore waters is “more than theoretical.” Smith Decl. ¶ 22. Plaintiffs' experts state that, because of the additional nitrogen and phosphorus, the coral reefs at Kahekili have been repeatedly subjected to algal blooms, which have contributed to a dramatic decline in coral cover. Id. ¶ 13. Plaintiffs' experts also say that the effluent flowing into the ocean has substantially lower pH levels and oxygen concentration than the receiving water. Smith Decl. ¶¶ 29, 35; Paytan Decl. ¶¶ 31, 34. The low pH, Plaintiffs' experts say, is causing some species of reef-building corals and coralline algae to dissolve and die, and the low level of oxygen is suffocating coral, leading to loss of coral tissue and coral death. Smith Decl. ¶¶ 30, 34. In addition, Plaintiffs experts say that the effluent has lower salinity and higher temperature than the receiving water, properties that can also endanger and kill coral. See Paytan Decl. ¶¶ 25–29, 34; Smith Decl. ¶¶ 31–33, 37–38.

The County's expert argues, on the other hand, that visual inspection of the coral reveals that “all reef areas appeared essentially pristine,” and that he “observed [no] bleached, diseased, or otherwise stressed corals.” Dollar Decl. ¶ 44. The County points to photographs of the reef close to the seeps, which appear to have healthy coral. Defendants' Exhs. 6 to 11, ECF Nos. 79–9, 79–10, 79–11, 79–12, 79–13 and 79–14.

In August 2001, the County of Maui and the EPA entered into a consent decree regarding the injection wells and compliance with the Safe Drinking Water Act, 42 U.S.C. §§ 300h–2(c), 300j–4(a). See ECF No. 8–3. This consent decree did not discuss whether an NPDES permit was needed for the injection wells under the Clean Water Act, although it required the County to obtain a water quality certification under section 401 of the Clean Water Act, 33 U.S.C. § 1341, from the State of Hawaii. The County has applied for that certification, but, as of March 6, 2014, not even a preliminary determination had been made as to whether the County will receive such certification. See DOH letter dated March 6, 2014, ECF No. 71–4.

The County has also applied for an NPDES permit. Id. Despite maintaining that such a permit is not required, the County submitted its application for the permit to the State's DOH on November 14, 2012, which was after this lawsuit was filed. The application was forwarded to the EPA on November 20, 2012. Id. As of March 6, 2014, the DOH had “not made a tentative or preliminary determination” on the application, nor received any comments from EPA. Id. However, after the hearing on the present motions, the County received a draft permit and was invited to comment on the draft by June 9, 2014. See ECF No. 106. The DOH says that, after receiving comments from Plaintiffs' counsel, the County, and the EPA, it will revise the draft permit if appropriate and proceed to notice and a thirty-day public comment period and public hearing. Depending on the public comments it receives, DOH intends to issue a final permit within a few months thereafter. Id.

Plaintiffs contend that the...