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,
County of Maui, Defendant-Appellant.
and Submitted October 12, 2017
from the United States District Court for the District of
Hawaii No. 1:12-cv-00198-SOM-BMK, Susan O. Mollway, Senior
District Judge, Presiding
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.
L. Henkin (argued) and Summer Kupau-Odo, Earthjustice,
Honolulu, Hawaii, for Plaintiffs-Appellees.
Y. Chung, Thomas A. Lorenzen, and Kirsten L. Nathanson,
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.
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, and National Water
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
Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret
McKeown, Circuit Judges.
panel affirmed the district court's summary judgment
rulings that the County of Maui violated the Clean Water Act
when it discharged pollutants from its wells into the Pacific
Ocean, and further finding that the County had fair notice of
panel concluded that the County's four discrete wells
were "point sources" from which the County
discharged "pollutants" in the form of treated
effluent into groundwater, through which the pollutants then
entered a "navigable water, " the Pacific Ocean.
The wells therefore were subject to National Pollutant
Discharge Elimination System regulation. Agreeing with other
circuits, the panel held that the Clean Water Act does not
require that the point source itself convey the pollutants
directly into the navigable water. The panel held that the
County was liable under the Act because it discharged
pollutants from a point source, the pollutants were fairly
traceable from the point source to a navigable water such
that the discharge was the functional equivalent of a
discharge into the navigable water, and the pollutant levels
reaching navigable water were more than de minimis.
The panel rejected the argument that the County's
effluent injections were disposals of pollutants into wells
and therefore exempt from the NPDES permitting requirements.
panel also held that the Clean Water Act provided fair
notice, as required by due process, of what conduct was
NELSON, Senior Circuit Judge:
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
The Lahaina Wells and the Effluent Injections
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.
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.
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.
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 ...