Hawaii Wildlife Fund v. County of Maui

Citation: 881 F.3d 754Docket: 15-17447

Court: Court of Appeals for the Ninth Circuit; January 31, 2018; Federal Appellate Court

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The Ninth Circuit affirmed the district court's ruling that the County of Maui violated the Clean Water Act by discharging pollutants from its wells into the Pacific Ocean. The court determined that the County's four wells were classified as 'point sources,' from which treated effluent was discharged into groundwater, ultimately reaching navigable waters. It was concluded that the Clean Water Act does not mandate direct discharge into navigable waters by the point source itself. The County was held liable under the Act as the discharge was traceable to navigable waters and exceeded minimal pollutant levels. The court rejected the assertion that the effluent injections into wells were exempt from National Pollutant Discharge Elimination System (NPDES) permitting requirements. Additionally, the court found that the Clean Water Act provided adequate notice of prohibited conduct, satisfying due process requirements.

The County of Maui is appealing a district court ruling that found it in violation of the Clean Water Act (CWA) for discharging pollutants into the Pacific Ocean from its wells at the Lahaina Wastewater Reclamation Facility (LWRF). The court also determined that the County had fair notice of these violations. The LWRF, which processes around 4 million gallons of sewage daily from approximately 40,000 residents, primarily disposes of treated wastewater via four wells—two constructed in 1979 and two in 1985. The County admits that effluent from these wells reaches the ocean, particularly from Wells 1 and 2, and acknowledges that it has been aware of this since the facility's inception. Despite considering an ocean outfall for direct disposal, the County opted for the wells, knowing they would indirectly affect coastal waters. Historical documents and expert confirmations indicated that injected effluent would eventually enter the ocean. A tracer dye study conducted in 2013 by multiple agencies aimed to examine the hydrological connections between the injected treated wastewater and coastal waters, confirming the presence of effluent in the ocean.

A hydrogeologic connection exists between Wells 3 and 4 and the coastal waters of West Maui, as concluded in a study. Tracer dye introduced into these wells was detected near the seafloor off North Kaanapali Beach after 84 days, indicating that 64% of the treated wastewater injected into Wells 3 and 4 discharges into the ocean. The study identified a southwesterly flow path, influenced by geological barriers, and noted that tracer dye from Well 2 was not detected due to the majority of effluent being diverted through Wells 3 and 4. If Well 2 received most of the effluent, it would follow a similar path to that of Wells 3 and 4. The fate of effluent from Well 1 can also be predicted based on Well 2’s data, as both wells are in proximity.

The County is appealing three summary judgment rulings from the district court, which found it liable for discharging effluent from Wells 3 and 4 into the ocean without an NPDES permit, violating the Clean Water Act (CWA). The court's decision was based on three grounds: indirect discharge of a pollutant through groundwater, categorization of groundwater as a point source, and recognition of groundwater as navigable water under the CWA. The court also held the County liable for Wells 1 and 2, despite the absence of studies confirming their direct ocean entry, based on the County's concessions regarding pollutant flow. Additionally, the court found that the County could not claim a due process violation, as it had adequate notice that such discharges were prohibited under the CWA.

The Ninth Circuit will review the district court’s summary judgment rulings de novo, applying the same standard as the trial court. This includes assessing evidence favorably for the nonmoving party and determining if there are any genuine material facts and if the law was applied correctly.

The Clean Water Act (CWA) aims to protect the integrity of the nation's waters by prohibiting pollutant discharges without a National Pollutant Discharge Elimination System (NPDES) permit. A "discharge of a pollutant" involves adding pollutants to navigable waters from a "point source," which includes wells as defined by the Act. The County's four wells are classified as point sources, as they are discernible and discrete conveyances discharging treated effluent that ultimately reaches the Pacific Ocean, thereby falling under NPDES regulation.

The County's liability under the CWA is affirmed, as it has not obtained the necessary permits before discharging pollutants from these wells. The distinction between point source and nonpoint source pollution is critical; while nonpoint source pollution is diffuse and difficult to regulate, the County's identified wells represent specific, manageable sources of pollution, justifying the need for individual permits. Unlike nonpoint sources, which cannot be traced to specific discharges, the wells are capable of collecting and conveying pollutants directly to navigable waters, thus constituting point source discharges under the CWA.

The Tracer Dye Study establishes a connection between the County's wells (Wells 1-4) and pollutant discharge into navigable waters, with the County acknowledging awareness of these effects prior to the LWRF's establishment. The record indicates that the County constructed the wells specifically for pollutant storage and transport from the Lahaina Facility to the Pacific Ocean. Importantly, violations of the Clean Water Act (CWA) do not require proof of intent, as the law strictly prohibits unpermitted pollutant discharges from point sources. The County's wells, designed to release pollutants through discernible conveyances, fall under CWA liability, contradicting the County's claim that only direct discharges into navigable waters are actionable. The County argues that since the wells discharge pollutants into groundwater before reaching the ocean, they do not constitute point source pollution. However, this interpretation misreads relevant case law, as the CWA encompasses pollution reaching water via confined conveyances, which applies to the wells in question. The case of Greater Yellowstone Coalition v. Lewis further clarifies that indirect discharges can fall under CWA regulations, as the absence of containment prior to entering navigable waters is critical for determining point source pollution.

Precipitation entering a stormwater drain system before reaching groundwater and surface water is classified as a point source discharge under the Clean Water Act (CWA). The current case's wells resemble the stormwater drain system acknowledged in Greater Yellowstone, as they contain and confine effluent prior to its discharge into the ground and surface water. The CWA does not require pollutants to avoid ground travel before entering surface water for liability to apply. The Court determined that the defendant must obtain necessary certification for the stormwater system, and similarly, the County must secure a National Pollutant Discharge Elimination System (NPDES) permit due to its point source discharges.

Jurisdictions concur that indirect discharges from point sources to navigable waters can establish CWA liability. In Concerned Area Residents for Environment v. Southview Farm, the Second Circuit recognized that discharging liquid manure from tankers onto fields, which then flows into navigable waters, constitutes a point source discharge. In this case, the wells function as point sources under the statute, with evidence linking them to the Pacific Ocean. The Tracer Dye Study corroborates that effluent from the wells moves towards submarine springs close to the shore. The Fifth Circuit in Sierra Club v. Abston Construction emphasized that liability hinges on whether pollutants are discharged from discernible, confined conveyances, even if carried away by gravity flow. Here, the County's actions of collecting and channeling pollutants through the wells, followed by their gravitational movement into groundwater, confirm the wells as point sources. The established connection between the wells and the Pacific Ocean affirms the likelihood of effluent reaching navigable waters, and the County has been aware that the effluent would ultimately reach the ocean, solidifying liability under the CWA despite groundwater's involvement in the transport of pollutants.

The Second Circuit's ruling in Peconic Baykeeper, Inc. v. Suffolk County established that discharges from trucks and helicopters, which sprayed pesticides into the air, can still qualify as point source pollution under the Clean Water Act (CWA). The court emphasized that the pesticides were discharged from the spray apparatus and not merely from the air, thus constituting a point source. The Ninth Circuit has concurred that air discharges can also meet point source pollution criteria. Accepting the County's argument that pollutants must travel through a confined conveyance to be liable under the CWA would undermine the precedents set in both Peconic Baykeeper and League of Wilderness, as both cases involved pollutants reaching navigable waters via the air rather than through direct connections like pipes. Justice Scalia's plurality opinion in Rapanos v. United States reinforced that the CWA prohibits any addition of pollutants to navigable waters from any point source, and that historical rulings have recognized liability for pollutants that may wash downstream, even if they do not directly enter covered waters. While the opinions in Rapanos varied, no Justice disagreed with the notion that CWA liability extends to discharges from defined point sources to navigable waters. The controlling interpretation in subsequent cases has leaned towards Justice Kennedy's concurrence rather than Justice Scalia's plurality opinion, particularly regarding the scope of the CWA's applicability to non-adjacent wetlands.

The court clarifies that the case does not involve wetlands or make a determination on whether groundwater qualifies as 'navigable water' under the Clean Water Act (CWA). Justice Kennedy's concurrence is not applied, while Justice Scalia's plurality opinion is considered for its persuasive value. The court rejects the County's interpretation of the CWA, which incorrectly asserts that pollutants must be discharged 'directly' into navigable waters from a point source, emphasizing that the statute's plain language must be enforced as written. The court holds the County liable under the CWA based on three critical points: (1) pollutants were discharged from a point source; (2) the pollutants are traceable from the source to navigable waters, making the discharge functionally equivalent to direct discharge; and (3) the levels of pollutants reaching navigable waters exceed de minimis levels. The court disagrees with the district court's interpretation that liability arises simply when pollutants reach navigable waters, stressing the importance of the tracing requirement. Evidence, including a Tracer Dye Study, links the County's well discharges to pollutants in the ocean. Lastly, the County's argument that its effluent injections are merely 'disposals of pollutants into wells' and exempt from CWA permitting is rejected. The court asserts that while states can issue permits for well disposals, such permits are required only when the disposal involves a discharge into navigable waters. The plain language of the statute does not exclude well disposals from permitting requirements when they affect navigable waters.

The County asserts that only the State, not the EPA, has the authority to regulate well disposals under § 1342(b)(1)(D). However, the Court has determined that the Clean Water Act (CWA) does not grant exclusive authority to either the EPA or the state agency to adjudicate CWA violations. The Court noted that a state's decision to refrain from action does not impede a citizen's right to file a federal lawsuit to enforce the CWA. Under the CWA, private citizens can sue individuals for violations of effluent standards or limitations set by the EPA or state authorities.

The County further argues that § 1314(f)(2)(D) classifies disposals into wells as nonpoint source pollution, negating the need for NPDES permits. Nevertheless, the Supreme Court clarified that while this section lists circumstances of nonpoint source pollution, it does not exempt such sources from NPDES requirements if they can be classified as point sources. If pollutants from wells discharge into navigable waters from a distinct source, they are subject to NPDES permitting.

Additionally, the CWA's definition of 'pollutant' indicates that certain well disposals are exempt only if state authority approves the well and guarantees no degradation of water resources. Conversely, well disposals that affect surface water quality require NPDES permits. Therefore, the CWA does not provide a blanket exemption for well disposals from these permitting requirements, and the Court emphasizes that it cannot create such an exemption without undermining the statutory framework of the CWA.

Due process mandates that statutes provide fair notice of prohibited conduct before sanctions are imposed. A statute must clearly inform a person of ordinary intelligence about what actions are prohibited, allowing them to act accordingly. The clarity of the statute's language determines whether fair notice is provided; if it effectively warns parties of their obligations, due process requirements are satisfied. The Clean Water Act (CWA) prohibits the discharge of pollutants into navigable waters from any point source, with specific definitions for "discharge," "pollutant," and "point source." An exception exists for parties with an NPDES permit. The County is acknowledged to discharge treated effluent into the Pacific Ocean from its injection wells, which falls within the plain language of the CWA, thus providing fair notice of violation. The County argues it lacked fair notice, claiming the statutory text can be interpreted to exclude its wells from NPDES permit requirements and characterizes its pollution as nonpoint source pollution. However, due process does not require perfect clarity in statutes, and differing interpretations do not violate due process. Although the County cites HDOH’s position indicating an NPDES permit may not be necessary, HDOH has not definitively ruled out the need for a permit, as it is still evaluating the situation.

The County's inability to obtain an interpretation of the Clean Water Act (CWA) from Health Department officials does not render enforcement of the CWA unconstitutional. A reasonable person would understand the CWA as prohibiting the discharges in question, indicating that enforcement does not violate the due process clause. Liability exists if the regulation is clear enough to inform parties of their obligations. The case centers on preventing the County from indirectly performing actions it cannot do directly under the CWA, specifically the construction of an ocean outfall for pollutant disposal without a National Pollutant Discharge Elimination System (NPDES) permit. To rule otherwise would undermine the CWA's prohibitions. Consequently, the district court's summary judgment, which determined that the County discharged pollutants from its wells into the Pacific Ocean in violation of the CWA and that the County had fair notice of the prohibitions, is affirmed.