Mahelona v. Hawaiian Elec. Co., Inc., Civ. No. 76-0130.

• Decision Date: 27 August 1976
• Docket Number: Civ. No. 76-0130.
• Parties: James MAHELONA, J. Tek Yoon, and the Nanakuli Surf Club, an unincorporated association, Plaintiff, v. HAWAIIAN ELECTRIC COMPANY, INC., a Hawaii Corporation et al., Defendants.
• Court: U.S. District Court — District of Hawaii

418 F. Supp. 1328

James MAHELONA, J. Tek Yoon, and the Nanakuli Surf Club, an unincorporated association, Plaintiff, v. HAWAIIAN ELECTRIC COMPANY, INC., a Hawaii Corporation et al., Defendants.

Civ. No. 76-0130.

United States District Court, D. Hawaii.

August 27, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John F. Schweigert, Lawrence D. McCreery, Honolulu, Hawaii, for plaintiffs.

Hugh Shearer, David L. Fairbanks, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for defendant Hawaiian Elec. Co., Inc.

Stanley D. Tabor, Asst. U. S. Atty., Harold M. Fong, U. S. Atty., Honolulu, Hawaii, for federal defendants.

Laurence K. Lau, Deputy Atty. Gen., Ronald Y. Amemiya, Atty. Gen., Honolulu, Hawaii, for defendants Hawaii Dept. of Health and George A. L. Yuen.

FINDINGS OF FACT and CONCLUSIONS OF LAW

SAMUEL P. KING, Chief Judge.

Introduction

In 1972, Congress passed the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1376 (hereinafter referred to as "FWPCA"). Any person who introduces pollutants into navigable waters must comply with the provisions of the FWPCA, see 33 U.S.C. § 1311(a), or face the severe penalties outlined in 33 U.S.C. § 1319. The Environmental Protection Agency (hereinafter "EPA") administers the FWPCA through the National Pollutant Discharge Elimination System (hereinafter "NPDES") permit program. See 33 U.S.C. § 1342(a).

Defendant Hawaiian Electric Company (hereinafter "HECO") operates a power station at Kahe, Oahu. Five steam electric generating units are in operation at Kahe and three more units are in the planning stage. The Kahe power station supplies approximately 60% of the electric power on the island of Oahu.

In order to cool the generating units HECO pumps water from the ocean through the steam condensers located inside the plant. The ocean water, which rises considerably in temperature, is then discharged back into the ocean. This thermal discharge is classified as a pollutant by the FWPCA, see 33 U.S.C. § 1362(6), thus mandating that HECO obtain an NPDES permit from EPA in order to continue operation of the plant at Kahe.

HECO applied for an NPDES permit on May 17, 1973, and received the permit on May 3, 1975. The Department of Health, State of Hawaii (hereinafter "HDOH") adopted the EPA-issued NPDES permit on August 19, 1975 pursuant to 33 U.S.C. § 1342.¹

Since the permit contemplates a discharge facility that will extend into navigable waters, HECO also applied pursuant to § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, to the United States Army Corps of Engineers (hereinafter "the Corps") for a permit to construct the facility. The initial application was made on May 23, 1973, and the permit was issued by the Corps on January 16, 1976. Construction of the facility began six days later.

The discharge facility, as presently envisioned, will include the construction of a large, roughly triangular "transit basin" at the shoreline. The basin will permit the transfer of the heated water which is carried from the generating plant by a system of large pipes to several small pipes which will then carry the water into the ocean some 800 feet from shore. Although the small pipes are to be buried beneath the ocean floor, the walls of the transit basin will extend approximately 150 feet into the ocean and rise to a height of seven to ten feet above sea level (mean lower low water).

The walls of the transit basin will intersect a surfing site whose prime importance is that it is extremely well suited for teaching surfing to beginners.

Plaintiff Mahelona frequently surfs at Kahe; plaintiff Yoon is a Honolulu Parks and Recreation Department employee who teaches surfing at Kahe; and the Nanakuli Surf Club is an organization whose members surf at Kahe.²

Plaintiffs have sought an injunction against further construction of the discharge facility. Their primary³ claim is that under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, (hereinafter "NEPA") an environmental impact statement (hereinafter "EIS") was required for the issuance of the permits at Kahe and that since no EIS was prepared construction pursuant to those permits must be enjoined.⁴

I. Application of NEPA

NEPA requires an EIS for any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).⁵ No EIS was prepared for the Kahe discharge facility and plaintiffs allege that either or both of the federal defendants, and the HDOH, should have prepared an EIS.

EPA argues that even if the Kahe project is a "major federal action significantly affecting the quality of the human environment" it is relieved of any responsibilities it had under NEPA by an exemption in the FWPCA relating to the issuance of certain NPDES permits. This contention will be discussed below.

The role of HDOH is basically irrelevant in determining whether an EIS was required in this case. Since HDOH simply adopted the NPDES permit which had originally been issued to HECO by EPA the question of whether HDOH issuance of an NPDES permit in the first instance would constitute major federal action is not presented by this case.⁶Compare Public Law No. 94-83 and Conservation Society of Southern Vermont v. Secretary of Transportation, 531 F.2d 637 (2d Cir. 1976). Similarly, subsequent adoption by HDOH can have no effect on whether or not EPA was obligated to prepare an EIS in the first instance.

The Corps makes two arguments to explain its failure to prepare an EIS. First, it argues that the Kahe project will not significantly affect the quality of the human environment.⁷ Second, the Corps argues that it properly relied on EPA's determination that no EIS was required since EPA had been designated as the "lead agency" for the Kahe project.

The Corps' contention that the discharge facility would not have a significant environmental impact, on the record before the court at this time, is rejected. At the outset, it is noted that the Environmental Assessment which the Corps prepared did not explicitly conclude that the construction at Kahe would have no significant impact on the human environment. The Corps only stated, "Although the US Army Corps of Engineers identified environmental concerns which are addressed in the assessment, EPA determined that an environmental statement was not required. The planning, design, and partial construction of the project have progressed to a point where alteration of the plans would be costly to the public and delay completion of urgently needed power plant. Considering the present state of construction, an environmental statement would not be a practical or an effective instrument for disclosure and mitigation of environmental impacts of the proposed action."⁸

This statement hardly amounts to a finding of no significant impact on the human environment; in fact, it almost implies that such an impact can be expected. The court also notes the contrast between this statement and the explicit, albeit dubious, finding in an earlier Environmental Assessment by the Corps regarding the on-shore intake facilities in the Kahe area that no significant environmental consequences could be expected.⁹

To substantiate its claim that there would be no significant environmental impact from the construction of the discharge facility at Kahe, the Corps relies very heavily on the lack of adverse public response to public notices regarding HECO's permit application. In a case such as this, however, where the Corps knows that a project will seriously interfere with an important existing activity in an area, it may not place such reliance on the silence of relatively unorganized and ill-informed citizens in determining the environmental impact of a proposed project. The expression of public concern, or the lack thereof, should be only one of many factors which the Corps considers in determining whether an EIS is required. This burden on the Corps is preferable to risking the substantial and often irreversible environmental and financial consequences which may result from a short-sighted and narrow approach by the Corps to its NEPA responsibilities.

Furthermore, the lack of public objection in this case does little to convince this court that the discharge facility will not have a significant impact on the quality of the human environment at Kahe. The Environmental Assessment prepared by the Corps recognized that the discharge facility will interfere with surfing and on-shore fishing in the Kahe area. There was convincing testimony in this court that the Kahe area is the best, and perhaps the only, area along the Waianae Coast of Oahu for the safe instruction of novice surfers. In addition, there are undeniably significant aesthetic consequences resulting from the construction of a wall extending 150 feet from shore at a height of 7-10 feet above sea level. These factors, combined with the proposed removal of 37,000 cubic yards of sand, gravel, coral and other reef material, raise "substantial questions" regarding the project's impact on the human environment. Therefore, on the record before the court, it appears that the Corps has failed to adhere to the applicable standard which requires an EIS "whenever a project `may cause a significant degradation of some human environmental factor.'" City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975), quoting Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973) (emphasis in Davis).

Nothing in this opinion, however, would necessarily operate to prevent the Corps from preparing an adequate Negative Assessment demonstrating that no significant environmental impact will result from construction of the transit basin at Kahe, if that should be the Corps' conclusion after appropriate study of the matter. Cf. Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. 650, 654 (E.D.Mich.1976).

The second ground advanced by the Corps to explain its failure to prepare an EIS is that...