The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER DENYING MOTION TO DISMISS
This is a citizen-suit enforcement action under the Clean Water Act. Plaintiffs Hawai`i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association seek to require Defendant County of Maui to apply for and comply with the terms of a Clean Water Act National Pollutant Discharge Elimination System ("NPDES") permit for injection wells at the Lahaina Wastewater Reclamation Facility ("LWRF"). The wells allegedly discharge wastewater that migrates into the ocean.
The County of Maui has moved to dismiss this action. See ECF No. 8. As part of their response, Plaintiffs filed a motion to strike Exhibits C and D. See ECF No. 16. The parties have stipulated to the dismissal of the Second Claim for Relief asserted in the Complaint. See ECF No. 30. The court denies the motion to strike and denies the motion to dismiss.
II. BACKGROUND INFORMATION.
The County of Maui operates the LWRF, which uses injection wells to dispose of wastewater. See Complaint ¶ 1; see 40 C.F.R. § 144.3 (an "injection well" is a "'well' into which 'fluids' are being injected"). Plaintiffs allege that the LWRF puts 3 to 5 million gallons of wastewater into four injection wells on a daily basis. Plaintiffs further allege that there are subsurface pipes at the bottom of the wells that allow the wastewater to mix with groundwater that flows into the ocean.
Id. ¶¶ 3, 43, 44. According to Plaintiffs, the County of Maui needs an NPDES permit for that discharge but has not even applied for such a permit. Id. ¶ 5.
Plaintiffs allege that the County of Maui acknowledged in public hearings in 1973 that wastewater from the LWRF would be discharged into the ocean. Id. ¶ 45. In an environmental assessment done in 1991, the County of Maui allegedly agreed that treated effluent (suspended solids, dissolved oxygen, nitrogen, phosphorous) flows from the injection wells into the ocean. Id. ¶ 45.
In 2007, the University of Hawaii at Manoa allegedly conducted a study that indicated an elevated level of a nitrogen isotope in algae growing in near-shore waters south of the LWRF. Id. ¶¶ 47-50. Plaintiffs say that the study concluded that the nitrogen came from the LWRF. Id. ¶ 49.
The United States Geological Survey also allegedly did a study that determined that "wastewater injection plumes were successfully detected in the ocean by near-shore wading surveys at . . . Lahaina, Maui." Id. ¶ 51. That study also allegedly found elevated levels of a nitrogen isotope in ocean water samples, which, according to Plaintiffs, is further evidence that wastewater from the LWRF is reaching the ocean. Id. ¶ 53.
Plaintiffs allege that in 2011 the Environmental Protection Agency ("EPA") put tracer dye into the injection wells as part of a test. Plaintiffs say that the dye was then found in near-shore waters, confirming that wastewater from the LWRF was reaching the ocean. Id. ¶ 58.
The court takes judicial notice of a consent agreement entered into by the County of Maui and the EPA in August 2011 regarding the injection wells and compliance with the Safe Drinking Water Act, 42 U.S.C. §§ 300h-2(c), 200j-4(a). See ECF No. 8-3. This consent agreement did not discuss whether an NPDES permit was needed for the injection wells under the Clean Water Act, although the consent agreement required the County of Maui to obtain a water quality certification under section 401 of the Clean Water Act from the State of Hawaii. Id. ¶ 25. According to the settlement agreement, the County of Maui applied for that certification, and the State of Hawaii is currently processing that application. Id. ¶ 26.