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Sierra Club v. Honolulu

ELR Citation: 38 ELR 20229
Nos. No. 04-00463, (D. Haw., 08/18/2008)

A district court partially denied an environmental group's motion for summary judgment on claims against a city for Clean Water Act (CWA) violations stemming from sewage spills at its collection system and wastewater treatment plants. As there are no isolated wetlands at issue in this case, Justice Kennedy's "significant nexus" test set forth in Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006), is irrelevant. Rather, at issue is whether many of the alleged spills went to navigable waters of the United States. The court denied the group's claim with respect to violations based upon storm drain spills because there is no evidence that the storm drains had at least a seasonally intermittent flow of water during some portion of the year. Likewise, there was insufficient evidence to establish that the stream beds at issue had any continuous flow of water. Moreover, the evidence is insufficient to determine that 16 of the spills entered into a water of the United States. The court therefore granted summary judgment on the group's claims as to uncontested spills only. In addition, the court granted summary judgment on the group's claims that the city violated the terms of its national pollution discharge elimination system permit for certain ground-only spills. In so doing, the court found violations of the CWA that are not based on adding pollutants to waters of the United States. Although it is clear that ground-only spills are not in themselves violative of the CWA, a permit was issued and each spill in fact violates the permit.