Maui, Hawaii’s second largest island, is home to world-famous beaches, humpback whales, and some of the most unique coral reef and aquatic life in the United States. Maui holds so much beauty and wonder that it has become the second most visited island of Hawaii.
Before The United States Supreme Court
The future of the pristine beauty that Maui famously holds may be decided in a U.S. Supreme Court case that was heard November 6, 2019. The Supreme Court will decide whether the Clean Water Act (CWA) imposes a permit for when pollutants from a point source are released to navigable waters. The environmental advocacy organizations Hawaii Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association have brought legal action against the County of Maui for violating the CWA by discharging effluent from its Lahaina Wastewater Reclamation Facility (LWRF) without a National Pollutant Discharge Elimination System (NPDES) permit. The County of Maui argues the case should be dismissed, and the Court should allow the Hawaii Department of Health (HDH) and the Environmental Protection Agency (EPA) to determine whether the NPDES permit is necessary.
Clean Water Act
The Clean Water Act was established in 1972 to regulate discharges of pollutants into the "waters of the United States." This allows the Environmental Protection Agency (EPA) to implement pollution control programs and develop national water quality criteria recommendations for pollutants into surface waters. It requires an NPDES permit to discharge pollutants from any point source into navigable waters. The permit places limits on what can be discharged, while also including monitoring and reporting requirements.
Maui’s Wastewater Treatment Facility And Its Effect On The Environment
Maui’s wastewater treatment facility serves a population of 40,000 people. It filters and disinfects four million gallons of sewage per day. It releases the treated effluent into four on-site injection wells. The effluent is transported 200 feet below ground into a shallow groundwater aquifer. The effluent in the aquifer is shown to be the culprit of the contamination problem in question. A study conducted by the EPA, Hawaii Department of Health, U.S. Army Engineer Research and Development Center, and researchers from the University of Hawaii determined that 64 percent of the treated wastewater in the aquifer was being released from submarine spring areas and in the waters off Kahekili Beach on Maui’s west shore. Two additional studies support the same findings as well. In 2007, the University of Hawaii at Manoa determined that Nitrogen found in algae growing in the nearshore waters came from the same treatment facility, and an environmental assessment conducted over 25 years ago by the County’s Department of Public Works noted that the treated effluent flows from the injection wells into the ocean.
Different Scientific Views By Plaintiffs And Defendants
The Plaintiffs and the County of Maui hold conflicting views on the effects of the groundwater discharge. Plaintiffs’ experts stated that the water near the seeps have elevated levels of Nitrogen, Phosphorus, low salinity, are acidic, and are at high temperatures. The County argued that these effects are diminished once the water mixes with the ocean. However, the Plaintiffs’ experts argue the mixture of the effluent water with the ocean has led to algal blooms and coral death. The County points to photographs of the reef and asserts the reef areas are pristine and free of disease.
In 2014, the United States District Court for the District of Hawaii held that Maui County violated the CWA by for discharging pollutants into the aquifer without an NPDES permit. The Court said that discharge into the groundwater below the LWRF is “functionally equivalent to a discharge into the ocean itself.” “Liability arises even if the groundwater under the LWRF is not itself protected by the Clean Water Act, as long as the groundwater is a conduct through which pollutants are reaching navigable-in-fact water. The Court also stated that the County’s assertion that coral is not being damaged is irrelevant. The physical, chemical, and biological changes that occurred in the water is enough to establish that the aquifer and ocean have the required nexus. The Court stated that the County is liable even if the coral or marine life is not damaged or harmed. The Court denied Defendant’s motion for judgment, while granting Plaintiff’s motion for partial summary judgment as to the County’s liability. The 9th Circuit Court of Appeals affirmed the lower court's ruling. The County of Maui appealed to the United States Supreme Court.
Potential Consequences Of This Case
This case provides a unique perspective to the power of the Clean Water Act. Instead of most cases where polluted water is discharged directly via pipeline triggering the CWA, this case considers whether the CWA is of importance when the contamination comes indirectly, via groundwater. This Supreme Court case is being monitored by industry and residents alike. A domino effect will occur if the Supreme Court sides with the County of Maui. The Clean Water Act would be weakened leading to other counties in the U.S. discharging their effluent the sane way Maui did. This will in turn lead to poorer water quality, affecting commercial industries dependent on water such as beer, soda, and water distribution companies. This case will be closely monitored by Whitcomb Selinsky PC, and will provide updates as we find out more information.
If you would like to know more about how this case affects you, your business, or whether you might need a NPDES permit, contact us at (866) 476-4558.