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Hawai'i Wildlife Fund v. County of Maui

ELR Citation: 44 ELR 20128
Nos. 12-00198, (D. Haw., 05/30/2014) (Mollway, J.)

A district court held that a Hawaiian county illegally discharged wastewater into the ocean through groundwater injection wells in violation of the CWA. An environmental group sued the county, seeking to compel it to apply for and comply with the terms of an NPDES permit, and to pay civil penalties for its allegedly unlawful discharges. The county has since applied for an NPDES permit. It therefore argued the case should be dismissed or stayed pending the permit application process. But an application for an NPDES permit, without more, cannot justify a dismissal, much less a potentially lengthy or indefinite stay. Otherwise, a polluting entity would be able to spend years in litigation prior to even applying for an NPDES permit, then seek to stay proceedings for several more years during the pendency of a belatedly submitted application, all the while continuing to release pollutants in violation of the CWA. As for the merits, the court held that a party can be held liable under the CWA if, without an NPDES permit, it indirectly discharges a pollutant into the ocean through a groundwater conduit. An aquifer with a substantial nexus with navigable-in-fact water may itself be protected under the CWA even if it is not necessarily a conduit for pollutants. Moreover, when it is established that groundwater is a conduit for pollutants, liability may attach to a discharge into that groundwater even if the groundwater is not itself protected under the Act. Here, it is undisputed that the county discharged pollutants into the ocean through the conduit of the groundwater below the injection wells. Having no NPDES permit allowing this discharge, the county is in violation of the CWA. The court, therefore, granted the group's motion for partial summary judgment on the issue of liability.