Hawai'i Wildlife Fund v. Cnty. of Maui, 886 F.3d 737

Background

The County of Maui operates four injection wells at the Lahaina Wastewater Reclamation Facility (Wells 1–4) that inject treated sewage effluent into groundwater; the County injects about 3–5 million gallons per day.
The County conceded effluent from Wells 1–2 reaches the Pacific Ocean; an EPA/HDOH/University of Hawaii Tracer Dye Study showed effluent from Wells 3–4 reaches nearshore submarine springs and estimated ~64% of injected effluent from Wells 3–4 discharges to the ocean.
The district court granted summary judgment finding the County violated the Clean Water Act (CWA) by discharging pollutants from its wells into the Pacific Ocean without NPDES permits, and that the County had fair notice.
The district court based liability on three grounds: (1) the County indirectly discharged pollutants through groundwater to the ocean, (2) the wells are point sources under the CWA, and (3) the groundwater is a navigable water for purposes of the Act (the opinion assumes without deciding groundwater’s status).
On appeal, the Ninth Circuit affirmed: the wells are point sources, the effluent is fairly traceable to navigable waters (the “functional equivalent” test), pollutant levels were more than de minimis, and the County had fair notice that such discharges required NPDES permits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether injections from wells that travel through groundwater into the ocean require NPDES permits	Wells are point-source discharges because the wells collect and convey pollutants that reach navigable waters	No permit required because discharge is indirect: pollutants go into groundwater (a nonpoint conduit) before reaching the ocean	Held: NPDES permits required where pollutants are discharged from a point source and are fairly traceable to navigable waters; indirect conveyance through groundwater does not avoid liability
Whether the wells constitute "point sources" under the CWA	Wells are discernible, confined, discrete conveyances (explicitly listed in statute)	County did not dispute wells are "wells," but argued statutory scheme excludes well disposals from permitting	Held: Wells are point sources under §1362(14) and thus regulable when they discharge pollutants to navigable waters
Whether disposals into wells are categorically exempt from NPDES permitting	Well disposals are nonpoint source and thus not subject to NPDES; statutory provisions referencing wells show they are outside NPDES	Statutory text permits states to regulate well disposals but does not categorically exempt them; if disposal affects navigable waters it is a discharge	Held: No categorical exemption; disposals that result in pollutants reaching navigable waters from a point source require permits
Whether enforcement violates due process (fair notice)	County lacked fair notice because statutory text and state agency guidance made applicability to these wells unclear	Plain language of the CWA and the facts (wells, traceability to ocean) put the County on notice that permits were required	Held: No due process violation; the CWA’s plain language gave fair notice that discharges from wells to navigable waters require permits

Key Cases Cited

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir.) (elements of a CWA §1311 violation)
Trustees for Alaska v. E.P.A., 749 F.2d 549 (9th Cir. 1984) (point-source regulation and traceability)
Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013) (distinguishing point-source vs nonpoint-source runoff)
Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143 (9th Cir. 2010) (collection/channeling can create point-source liability even if flow travels through ground)
Concerned Area Residents for Env't v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) (indirect discharges from point sources can trigger CWA liability)
Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d Cir. 2010) (discharge apparatus can be point source even when pathway to navigable waters is indirect)
League of Wilderness Def./Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002) (airborne discharges can be point-source discharges)
Rapanos v. United States, 547 U.S. 715 (2006) (plurality and concurrence on scope of CWA; discussed indirect-discharge principles)
ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203 (9th Cir. 2015) (statutory-interpretation principles applied to environmental statutes)