For decades, Maui County has been pressured to seek a Clean Water Act permit for discharges of partly treated effluent from its Lahaina sewage treatment plant into nearshore waters. The effluent is pumped into injection wells deep into the ground, where it mixes with groundwater that then flows into the sea.
In 2012, four environmental groups – the Hawai‘i Wildlife Fund, the Sierra Club-Maui Group, the Surfrider Foundation, and the West Maui Preservation Association – sued the county in federal court after dye-tracer studies definitively showed a connection between pollutants in the waters off Kahekili Beach and the effluent.
Federal Judge Susan Oki Mollway in Honolulu District Court found in the plaintiffs’ favor. The county took the case to the 9th Circuit Court of Appeals, which affirmed Mollway’s decision.
Then, in an action that spurred controversy among Maui County Council members and the administration of Mayor Michael Victorino, in 2018 the county appealed the decision to the Supreme Court, which heard arguments in the case last fall.
Finally, on April 23, the high court released its ruling. While it disagreed with the appellate court over the scope of the Clean Water Act, it did find that the connection between the source of the pollution – the sewage treatment plant – and the nearshore navigable waters was direct enough to require the plant to obtain a permit.
“Because the Ninth Circuit applied a different standard,” the majority of the justices agreed, “we vacate its judgment and remand the case for further proceedings consistent with this opinion.”
David Henkin, the attorney for Earthjustice who argued the case before the high court, described the decision as “a huge victory for clean water” and a rebuke of the Trump administration – which sided with the county – in its efforts to “blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans.”
According to Earthjustice, the case will first go back to the 9th Circuit, which will probably remand it to the Honolulu District Court. The court will then have to decide whether the discharges meet the test established in this ruling by the Supreme Court – that is, whether the discharges from the plant are the “functional equivalent” of direct discharges to the ocean.
“We expect the lower court will conclude they are, in which case the county will need to get a Clean Water Act permit,” Earthjustice stated in its press release.
A Super Majority
The Supreme Court ruling was not a close one. Six justices agreed with the majority opinion, written by Justice Stephen Breyer. Only Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, with Gorsuch joining in Thomas’s dissent and Alito authoring his own.
The ruling is highly critical of the position staked out by Maui and the Trump administration: “Maui and the Solicitor General argue that the statute’s permitting requirement does not apply if a pollutant, having emerged from a ‘point source,’ must travel through any amount of groundwater before reaching navigable waters. That interpretation is too narrow, for it would risk serious interference with the [Environmental Protection Agency’s] ability to regulate ordinary point source discharges.”
“Consider a pipe that spews pollution directly into coastal waters,” the ruling continues. “There is an ‘addition of’ a ‘pollutant to navigable waters from [a] point source.’ Hence a permit is required. But Maui and the government read the permitting requirement not to apply if there is any amount of groundwater between the end of the pipe and the edge of the navigable water… If that is the correct interpretation of the statute, then why could not the pipe’s owner, seeking to avoid the permit requirement, simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea?”
One of the drivers that pushed the county onto the course of its several appeals was concern over possible fines, were it to be found to have violated the Clean Water Act.
At the time of Judge Mollway’s ruling in 2014, the county was potentially liable for fines of as much as $100,000 per day. The penalties at that point “already exceed $100 million,” Henkin said then in a news release from Earthjustice.
The majority justices did acknowledge this, albeit somewhat obliquely. “We expect that district judges will exercise their discretion mindful, as we are, of the complexities inherent to the context of indirect discharges through groundwater so as to calibrate the [Clean Water] Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.”
— Patricia Tummons
Since 1992, Environment Hawai‘i has reported on the link between water quality and effluent from the Lahaina sewage treatment plant. All articles available for viewing at www.environment-hawaii.org.