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Hawai'i Wildlife Fund v. County of Maui

United States Court of Appeals, Ninth Circuit

February 1, 2018

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.

          Argued and Submitted October 12, 2017

         Appeal 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.

          David L. Henkin (argued) and Summer Kupau-Odo, Earthjustice, Honolulu, Hawaii, for Plaintiffs-Appellees.

          David 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.

          Shawn 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 Resources Association.

          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 States.

          Before: Mary M. Schroeder, Dorothy W. Nelson, and M. Margaret McKeown, Circuit Judges.


         Environmental Law

         The 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 its violations.

         The 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.

          The panel also held that the Clean Water Act provided fair notice, as required by due process, of what conduct was prohibited.


          D.W. NELSON, Senior Circuit Judge:

         The 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 court.


         1. The Lahaina Wells and the Effluent Injections

         The 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.

         The 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.

         That 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.

         The 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 ...

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