1. Hawai‘i’s Thousand Friends, Life of the Land Inc.
2. James E. Hearst
3. Betty Hearst
4. John Weil
5. Victoria Creed
6. Richard A. Wheelock
7. Patricia Bostwick
8. Patrick Tane
9. Phillip M. Tansey
10. Carolyn Tansey

1. Fred Paul Benco
2. Linda S. Birn

1. City and County of Honolulu
2. Department of Public Works of the City and County of Honolulu

1. Ronald B. Mun, Deputy Corp. Counsel, Office of the Corp. Counsel, Honolulu, HI
2. Sandra A. Simms, Deputy Corp. Counsel, Office of the Corp. Counsel, Honolulu

U.S. District Court, D. Hawai‘i

• Clean Water Act (CWA) 33 U.S.C. §§ 1251, et seq.

1. Plaintiffs filed a complaint in the District Court of Hawai‘i seeking a declaratory judgment, an injunction order, costs, and a court order for defendants to comply with the plaintiffs’ requests. In addition, the plaintiffs filed a motion for partial summary judgment in regards to the City’s liability for discharging untreated waste without a permit. The defendants filed a motion to dismiss the plaintiffs’ complaint with prejudice or in the alternative, for summary judgment.
   
2. The Plaintiffs claimed the city’s Enchanted Lakes Pumping Station (ELPS) had been discharging raw sewage into Kaelepulu Stream, Enchanted Lakes, and Kailua Bay. In December 1989, the Hawai‘i Department of Health (DOH) reported several instances of violations under the CWA, which resulted in 37,550 gallons of raw sewage discharge into Kaelepulu Stream.
   
3. In April 1990, the DOH and the City entered into a Consent Agreement in which the City was to pay a fine to the State, prepare water impact studies, and improve the sewage system. The plaintiffs asserted that they had no opportunity to participate in the non-public hearing between the City and the DOH. Furthermore, the plaintiffs claimed that the Consent Agreement was an insufficient remedy to prevent future sewage discharges at the ELPS.
   
4. The defendants claimed the plaintiffs were barred from asserting their claim because DOH had cited violations, and the City and DOH entered into a Consent Agreement. The court applied the plain language of Section 1365(b) and found that DOH’s enforcement actions were not initiated in the court of the United States, instead it was an administrative action. Thus, the plaintiffs were not barred from filing their claims.
   
5. The defendants claimed that the District Court of Hawai‘i lacked subject matter jurisdiction in the present case. The court found that the plain language of Section 1365(b) states that the district court has jurisdiction to enforce effluent limitations and to impose civil penalties. Therefore, the court had subject matter jurisdiction to hear the present case.
   
6. Plaintiffs alleged that the defendants had violated the CWA by dumping raw sewage into Kaelepulu Stream without a Non-Point Source Discharge Elimination System (NPDES) permit. The defendants argued that the ELPS is covered under the Kailua Wastewater Treatment Plant’s (KWTP) NPDES permit. The court found that the KWTP’s NPDES permit had not extended to the ELPS because the permit had not alluded to the ELPS. Furthermore, the court found that even if ELPS was covered by the KWTP’s NPDES permit, the permit had not authorized discharges of raw sewage or any discharges into the Kaelepulu Stream. Accordingly, the court found that the defendants had violated the CWA by repeatedly dumping raw sewage into Kaelepulu Stream.
   
7. The defendants contended that the plaintiffs lacked standing. The court found that the plaintiffs were injured in fact by defendants’ action by loss of recreational, aesthetic, and environmental interests. Additionally, the threat of future sewage bypasses constituted an actual and imminent injury. Moreover, the court found that the large amounts of raw sewage dumped by the defendant was the cause of the plaintiffs’ injuries. Finally, the court found that the Consent Agreement had not sufficiently redressed the plaintiffs’ injuries. Hence, the plaintiffs could have their alleged injures redressed by a favorable decision.
   
8. Accordingly, the court DENIED the defendants’ motion to dismiss, or in the alternative, for summary judgement and GRANTED the plaintiffs’ motion for partial summary judgment.