4. Undisputed GW-SW Connection
“Effluent from the LWRF currently is discharged via injection
wells to fractures in the underlying basalt. This effluent, via
gravity and the pressure from up-gradient groundwater,
flows toward the ocean. Treatment plant effluent
contributes various constituents, including but not limited to,
suspended solids, dissolved oxygen, and nutrients such as
nitrogen and phosphorous to the ocean.” Source: County of
Maui, Environmental Assessment (1991).
5. The Great
Migration
Infrared map showing values
of waters and intertidal
macroalgae.
“definite hydraulic connection
between Injection Wells 3 an4
and the nearshore waters near
Kahekili Beach Park.”
“64% of treated wastewater
injected into these wells would
be discharged from the
monitored submarine springs.”
Image courtesy Tracer Study report conducted
by UH for state DOH, and US EPA
6. Pollution
Impacts to
Kahekili Beach
Algal blooms, suffocating corals
Salinity imbalance
Low pH and oxygen
Higher temperature
Impacts National Marine
Sanctuary
Acknowledged correlation
between discharge and harm –
EPA and State of Hawai’i
The green alga Ulva fasciata covers the
ocean floor offshore of Kahekili Beach,
Maui, 2004.
7. What does it boil down to?
Despite knowing for decades that the LWRF’s injection wells
discharge to nearshore West Maui waters and mounting
scientific evidence of the harm those discharges cause to
fragile marine ecosystems, the County has never applied
for, much less obtained and complied with, an NPDES permit
to control its illegal discharges. Instead, the County
continues to pass off the environmental and social costs of
the discharges to the public. Source: Complaint.
8. Claims for Relief
• Discharge without an NPDES Permit
• Continuous discharge of pollutant-laden wastewater from multiple
LWRF injection wells through hydrologically connected
groundwater into WOTUS without an NPDES permit. See CWA Sec.
301(a); 33 U.S.C. § 1311(a)
• Failure to Obtain and Comply with the Terms of an NPDES
Permit Prior to Discharging to Surface Waters from the LWRF
Injection Wells
• Commencing discharges of wastewater from LWRF injection wells
through hydrologically connected groundwater into WOTUS
without first obtaining and complying with the terms of an NPDES
permit at least 180 days prior to the first discharge. See CWA Sec.
402; 33 U.S.C. § 1342; 40 C.F.R. 122.21(c)(1)
9. CWA Definitions
• “Discharge of a pollutant” – “any addition of any pollutant
to navigable waters from any point source.” 33 U.S.C. §
1362(12).
• “Pollutant” - includes, among other items,
“sewage,” “chemical wastes,” “biological materials,”
“heat,” and “industrial, municipal, and agricultural waste
discharged into water.” 33 U.S.C. § 1362(6).
• “Navigable waters” – “the waters of the United States,
including the territorial seas.” 33 U.S.C. § 1362(7)
10. CWA Definitions
• “Point Source” – “any discernible, confined and discrete
conveyance, including but not limited to
any…conduit…from which pollutants are or may be
discharged….” 33 U.S.C. § 1362(14).
11. Conduit Theory
“The characterization of the migratory
groundwater as a conduit or point source,
rather than a navigable water in and of itself, is
the conduit theory which is satisfactory for CWA
jurisdiction.”
12. Where do we start?
Isolated Groundwater?
• No question: “WOTUS do not
include isolated/nontributary
GW.” Hecla Min. Co., 870 F.
Supp. 983, 990.
• An unpermitted discharge into
GW, without more, does not
constitute a violation of the
CWA.
Hydrologically Connected
Groundwater?
• Is the GW migratory?
• Do pollutants find their way to
navigable-in-fact waters?
• The conduit theory means that
the GW is simply a conveyance
between the PS and the
traditionally regulated WOTUS
13. Jurisdictions in Favor of NPDES
Regulation
• Direct Hydrological
Connection
• Purpose: Determine whether
there is sufficient connection
between migratory GW and
WOTUS as to establish CWA
jurisdiction over polluted
migratory GW.
• “Direct” – immediacy,
magnitude
• “Hydrological Connection”
• Conduit Theory
• GW is a conveyance for
point source pollution and
WOTUS
• Applies only when pollutants
migrate to navigable-in-fact
waters
• Dischargers shouldn’t be
allowed to pollute WOTUS
through GW
14. Support for NPDES Regulation
• Jurisprudence
• Rapanos - “significant nexus”
• Heraldsburg – “hydrological
connection” and
“significant impact”
• Administrative Actions
• EPAs own actions support
regulating GW discharges
that reach surface waters
subject to CWA
• Proposed 2001 CAFO Rule
and 56 Fed. Reg. 64876,
64892 (Dec. 12, 1991);
Hawai’i Wildlife Fund, at 13.
• Legislative Goals
• “Protect surface waters” so
addition of pollutants to
such waters through
migratory GW is subject to
CWA NPDES permitting.
Hawai’i Wildlife Fund, at 13
(citing Hecla Min. Co., 870
F.Supp 983, 990 (E.D. Wash.
1994)).
15. Application to Hawai’i Wildlife Fund
• Discussion:
• Rapanos
• Heraldsburg
• Court discussed application of Heraldsburg and the
conduit theory, finding liability under both tests
• Migratory GW need not satisfy “direct hydrological
connection” test so long as migratory GW could be
established as a conduit – that a discharge to GW is
“functional equivalent” to a discharge to the ocean itself
16. Summary Judgment I – 24 F.Supp.3d 980
• A party is liable under the CWA, if without an NPDES permit, it
indirectly discharges a pollutant into the ocean through a
groundwater conduit.
• Unpermitted discharge into the GW, without more, does not
constitute a violation of the CWA.
• It is the migration of the pollutant into navigable-in-fact water that
brings GW under the CWA
• Conduit theory applies only when pollutants find their way to
navigable-in-fact waters. In that event, a permit is required.
17. Summary Judgment II
• Cross-motions for partial summary judgment on whether the
County has violated the CWA by discharging effluent without an
NPDES permit at Injection Wells 1 and 2
• Invitation for the “Court to revisit its earlier ruling granting Plaintiffs
summary judgement as to wells 3 and 4.”
• The Court declined and rested on the analysis set forth in SJI
addressing wells 3 and 4 in granting partial summary judgment to
Plaintiffs
18. Settlement
• Commitment to develop $2.5m water-reuse project to
divert treated wastewater from injection wells to meet
existing West Maui water demands
• $100,000 penalty to Dept. of Treasury
• Obtain and comply with NPDES permit
19. Recent
District Court
Decisions
• Yadkin Riverkeeper, Inc., v. Duke
Energy Carolinas, LLC., No. 1:14-
cv-753, 2015 WL 6157706
(M.C.N.C. Oct. 20, 2015).
• Sierra Club v. Virginia Elec. &
Power Co., No 2:15-cv-112, 2015
Wl 6830301 (E.D. Va. Nov. 6, 2015).
• Chevron U.S.A. v. Apex Oil Co.,
Inc., 113 F.Supp.3d 807 (D.Md Oct.
20, 2015).
• Northern California River Watch v.
Mercer Fraser Co., No. C-04-4620
SC, 2005 WL 2122052 (N.D.Cal.
Sept. 1, 2005)
20. Colin Kelly
Senior Staff Attorney
Orange County Coastkeeper
714-850-1965 ext. 307
colin@coastkeeper.org
