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Hawai’i Wildlife Fund Presentation_4.4.2016
- 1. Hawai’i Wildlife Fund v. County of Maui ColinKelly Senior Staff Attorney Orange County Coastkeeper Inland Empire Waterkeeper
- 2. Factual Background • KahekiliBeach • Hawaiian Islands Humpback Whale National Marine Sanctuary • Nearshore coral reefs • Popular recreational beach • Resort area
- 3. Lahaina Wastewater Treatment Facility • Discharge:3-5 MGD treated sewage to 4 injection wells • Duration: 30+ years • Associated Pollutants: • Nitrogen • Phosphorus • Suspended Solids • Bacteria • Pharmaceuticals • Musk fragrances • Industrial chemicals
- 4. Undisputed GW-SW Connection “Effluentfrom 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 mapshowing 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 Algalblooms, 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 itboil 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 • “Dischargeof 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 • “PointSource” – “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 characterizationof 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 westart? 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 Favorof 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 NPDESRegulation • 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’iWildlife 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 todevelop $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 • YadkinRiverkeeper, 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 StaffAttorney Orange County Coastkeeper 714-850-1965 ext. 307 colin@coastkeeper.org