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Hawai'i Wildlife Fund v. County of Maui

United States District Court, D. Hawaii

May 30, 2014

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

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[Copyrighted Material Omitted]

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For Hawaii 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: David L. Henkin, Summer M. Kupau, LEAD ATTORNEYS, Earthjustice Legal Defense Fund, Honolulu, HI.

For County of Maui, Defendant: Colleen P. Doyle, LEAD ATTORNEY, Hunton & Williams LLP, Los Angeles, CA; Patrick K. Wong, Thomas W. Kolbe, Richelle M. Thomson, LEAD ATTORNEYS, Department of the Corporation Counsel Maui, County of Maui, Wailuku, HI.

OPINION

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

Susan Oki Mollway, Chief United States District 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

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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

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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

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on the public comments it receives, DOH intends to issue a final permit within a few months thereafter. Id.

Plaintiffs contend that the County's continued discharge of wastewater without an NPDES permit violates the Clean Water Act.

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.

The Clean Water Act is enforced by state and federal authorities working together. Under the Act, a state may apply for a transfer of permitting authority to state officials. See 33 U.S.C. § 1342. Hawaii obtained permitting authority in 1974. 48 F.R. 15662-01. Once " authority is transferred, then state officials--not the federal EPA--have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). The state must advise the EPA of each permit it proposes to issue, and the EPA may object to any permit. 33 U.S.C. § § 1342(d)(1), (2). If the state does not adequately address EPA's concerns, authority over the permit reverts to the EPA. Id. § 1342(d)(4).

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 its earlier allegedly unlawful discharge. The County moved to dismiss on various grounds. Among other things, the County contended that the court should defer acting until the DOH and the EPA had first reviewed what was then only a future NPDES permit application. On August 08, 2012, this court denied the County's motion to dismiss. See ECF No. 34. As noted above, subsequent to that dismissal, the County applied for an NPDES permit. It now renews its argument that this action should be dismissed or stayed until the DOH and the EPA have ruled on the permit application. The County also moves to strike several of the declarations introduced into evidence by Plaintiffs, including portions of the declarations of experts Jennifer Smith and Adina Paytan,

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and asks this court to take judicial notice of several documents.

Plaintiffs move for summary judgment, arguing that, in light of the findings of the tracer study, the undisputed evidence demonstrates that the County has violated the Clean Water Act.

III. ANALYSIS

A. Requests that the Court Strike Evidence and Take Judicial Notice.

Recognizing that the County's motion to strike evidence may bear on the contents of the record that the court will consult to resolve the parties' substantive motions, the court addresses that motion first.

The County first challenges the declarations of Hannah Bernard, Lauren Campbell, Antoinette Lucienne de Naie, Sharyn Matin, and Gary Savage, all of whom are representatives of the various organizations bringing suit. The County argues that certain statements in these declarations constitute hearsay and/or impermissible legal or scientific opinion that the declarants are not qualified to give. Plaintiffs respond that all of these declarations simply support the various Plaintiff organizations' standing, and that none of the opinions is intended to bear on the question of the County's liability. The County has not challenged any Plaintiff's standing. There is therefore no reason to strike the declarations.

More significantly, the County challenges the declarations of both of Plaintiffs' experts, Adina Paytan and Jennifer Smith.

First, the County argues that Paytan's only qualification is in chemical oceanography and that she therefore has no expertise regarding the effects of the ocean's chemistry on marine biology and on coastal ecosystems. Plaintiffs introduce a supplementary declaration by Paytan, which notes that chemical oceanography is an interdisciplinary field that includes the study of the effects of the ocean's chemistry on marine biology, and that Paytan runs a biogeochemistry laboratory at the University of California, Santa Cruz. Paytan Opp. Decl. ¶ ¶ 2, 3, ECF No. 92-1. According to the declaration, biogeochemists study how chemical cycles affect biological activity, and the research Paytan has directly conducted or overseen at the laboratory has been published in numerous peer-reviewed journals that focus on biogeochemistry and marine biology, including peer-reviewed articles specifically addressing effects on coral reefs. Id. The County's argument appears largely dependent on Paytan's own characterization of herself as qualified in " chemical oceanography" and the County's assertion that such a qualification is inadequate.

The County has not asked for an evidentiary hearing under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding Paytan's alleged lack of expert qualification. The assertions in the County's motion do not, without more, establish that Paytan is not qualified as an expert. This court therefore declines to strike any part of her statements.

Second, the County challenges statements made by both Paytan and Smith regarding the theoretical effects of elevated levels of nitrogen, phosphorus, and oxygen on marine life. The County describes Paytan and Smith's testimony as " speculation" and therefore inadmissible. However, the theoretical contentions made by both Smith and Paytan are not speculative. Rather, they appear to be based on " the expert[s'] scientific, technical, or other specialized knowledge." Fed.R.Evid. 702. The declarations directly relate to the potential effects effluent may have on ocean

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water, and therefore go to whether there is a significant nexus between the aquifer and the ocean. Even if such statements were insufficient to establish such a nexus in themselves, the County does not show that they are either irrelevant or prejudicial with respect to the matters that are to be decided on the present motions.

Third, the County objects to the term " wastewater," used in both the Paytan and Smith declarations and in a declaration submitted by Plaintiffs' attorney, David Henkin. The County believes the material discharged from the LWRF should be described as " reclaimed water" or " effluent." " Wastewater" is a term that has been used throughout this litigation to refer to treated sewage that emerges from the LWRF and is the term used by the independently produced Tracer Dye Study. It is also what the " W" stands for in " LWRF," the acronym the County itself uses to describe the Lahaina facility. The court understands that the treatment of sewage at LWRF may eliminate various toxins from the water, and even make it safe for drinking. Whether this treated water is referred to as " wastewater," " effluent," or " reclaimed water" has no bearing on any of the County's arguments. The court understands the terms being used, and there is no prejudice to any party flowing from the use of the term " wastewater."

Finally, with regard to Plaintiffs' experts, the County objects that Smith's algal bloom study--Smith Decl. ΒΆ 9--is prejudicial because it analyzes the impact of water taken directly from the LWRF, without taking into account the diffusion and mixing that the effluent undergoes as it travels through groundwater and ocean water. The court recognizes that Smith's study does not account for these diffusion and mixing effects, but nevertheless finds the study's analysis probative as to the potential effect that effluent has on marine life. This is a matter going to the weight of the evidence, not its admissibility. Defendant was free to seek its own analysis or expert testimony showing that the diffusive effects ...


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