Mahalo to Lauren Blickley, Hawaii Regional Manager and Angela Howe, Legal Director for putting together this FAQ.

Lahaina Wastewater Injection Wells FAQ.

Updated 4/24/2020

Overview:

In 2012, after years of trying to negotiate to find workable solutions, environmental groups, including the Surfrider Foundation, sued the County of Maui for violating the Clean Water Act by pumping millions of gallons of treated sewage into groundwater each day. This polluted groundwater eventually seeps into the ocean, impacting Maui’s marine life and coral reefs.

Question posed to the Supreme Court: Does the Clean Water Act require a permit when pollution originates from a point source (like the wastewater plant on Maui) but is first filtered through groundwater (a “nonpoint source”) before reaching the ocean?

Supreme Court Ruling: In a 6-3 ruling on April 23, 2020, the Court determined that the polluted groundwater from the County of Maui’s injection wells could be a violation of the Clean Water Act. Specifically, the Court stated that liability for pollution exists “when there is direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” In the case of Maui’s injection wells, the polluted groundwater can be considered a functional equivalent of a direct discharge.

Next Steps: The case will be sent back to the District Court. The lower court will apply the new “functional equivalent” test to the facts in the case and decide whether Maui County needs a permit. If those judges go along with their previous rulings, then Maui County will likely need to develop a plan to cut down on the amount of pollution it sends into the ocean, whether it’s diverting the treated wastewater to golf courses and agriculture or improving the sewage treatment process.

Timeline of Events:

  • 2010 – 2012 – Surfrider Foundation Participated in advocacy challenging the polluting injection wells alongside the DIRE Coalition (Don’t Inject, REdirect)
  • April 16, 2012 – After years of trying to negotiate with the County to develop responsible community solutions for the pollution, environmental groups filed suit in federal district court to address the County of Maui’s water quality violations.
  • 2014 – District Court rules that the County of Maui violated the Clean Water Act by discharging pollutants through groundwater and into the ocean without the required CWA permits and that the County had fair notice of its violations. As part of its ruling, the court maintained that groundwater is a “point source” as defined by the CWA.
  • 2018 – Ninth Circuit Court affirms the District Court’s ruling.
  • February 2019 – U.S. Supreme Court accepts (grants writ of certiorari) the County of Maui appeals of Ninth Circuit Court ruling.
  • September & October 2019 – After extensive community outreach and pressure was voiced to settle this case, Maui County Council voted on September 20, 2019 to withdraw their appeal and instead work with the local community to find sustainable, long-term solutions, but Mayor Victorino refused to complete the settlement process
  • November 6, 2019 – Case argued in front of the Supreme Court
  • April 23, 2020 – Supreme Court of the United States rules that permits are required for discharges that travel through groundwater and are the “functional equivalent” of a direct discharge

General Background:

Who is involved? Four environmental groups, including the Surfrider Foundation, Hawai‘i Wildlife Fund, Sierra Club Maui Group, and West Maui Preservation Association (all represented by Earthjustice) sued the County of Maui for violations of the Clean Water Act.

What is the problem? The County of Maui is violating the federal Clean Water Act by pumping 3-5 million gallons of treated sewage into the groundwater each day using underground injection wells at its West Maui facility. That groundwater, mixed with treated sewage, then travels underground and seeps into the nearshore ocean waters directly off Ka‘anapali. Studies have shown that this underground seep promotes algae growth that can suffocate and kill the coral reefs and other marine life. The contaminated groundwater from the injection wells is warmer and has a higher phosphorus content than the surrounding seawater, contributing to algal growth. There is also documented coral and marine life decline in the immediate area around the seep.

What is at stake? West Maui is home to important coral reef habitats and is part of the Hawaiian Islands Humpback Whale National Marine Sanctuary. The sewage contaminated groundwater seeps into the Pacific ocean only a few meters offshore of a popular beach for snorkeling, swimming, diving, and paddling. In addition, not only do the coral reefs of West Maui support critical habitat for ocean life and fish species, but also “seed” reefs on the neighboring islands of Lana‘i and Moloka‘i. This pollution has especially affected popular nearshore recreation areas like Kahekili Beach.

Violations of the Clean Water Act:

How is the County of Maui violating the Clean Water Act? The Clean Water Act (“CWA”) is a federal law that regulates the discharge of pollutants into surface waters including streams, wetlands, and the ocean. Permits are required to discharge pollutants (including treated sewage) into these waters. The County of Maui doesn’t have the required permits to discharge millions of gallons per day of treated sewage into groundwater that seeps into West Maui’s off-shore waters.
Why didn’t the County of Maui get the necessary permits? The County of Maui claimed that the Clean Water Act only covers “point sources” of pollution, such as a pipe that dumps polluted water in a stream, river or bay, and not polluted groundwater that seeps into water bodies. The County claimed that because it was not injecting water ‘directly’ into federal waters, the Clean Water Act wasn’t applicable to their massive sewage discharge.

Did the County of Maui know its injection wells were polluting ocean water? Yes. Reports from 1973, 1991, and 1994 indicate that both the Environmental Protection Agency and the Hawaii Department of Health (HDOH) understood that the wastewater entered the ocean, and neither agency suggested that a permit was required.

How do we know the sewage seep is coming from the Lahaina Injection Wells? In 2012, an Environmental Protection Agency study confirmed a hydrologic connection between the wastewater injection from the Lahaina injection wells and the nearshore region of the Kaanapali coast on West Maui. The study further determined that it takes about 84 days for the polluted groundwater to be discharged into the ocean. The discharge is chemically and thermally different from the surrounding seawater.

Supreme Court Ruling:

What was the main question before the Supreme Court? The Supreme Court needed to decide if the Clean Water Act requires a permit when pollution originates from a point source (like the wastewater plant on Maui) but is first filtered through groundwater (a “nonpoint source”) before reaching the ocean.

What was the Supreme Court ruling? In a 6-3 ruling, the Court determined that the polluted groundwater from the County of Maui’s injection wells could be a violation of the Clean Water Act. Specifically, the Court stated that liability for pollution exists “when there is direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” In this case, the polluted groundwater can be considered a functional equivalent of a direct discharge.

What are the specific outcomes of the SCOTUS ruling? This important ruling has been deemed the “Clean Water Act case of the century” because it offers a new test by which liability can be found for polluting injection water and other indirect sources of pollution. The test is whether the pollution comes from the “functional equivalent” of the point source direct pollution. The court lists a number of factors that will be weighed, including the time, distance and dilution of the pollution that travels to a water of the United States (which include navigable waters and the Pacific Ocean). The Lahaina Injection Wells case has been sent back to the lower courts to determine if the facts in this instance fulfill the new test. That will likely be scheduled in the next two months and we will have a final ruling on remand in the next year.

What happens now? The case will go back to the Ninth Circuit, who will apply the ‘functional equivalent’ test to assess final liability on behalf of the County. The Ninth Circuit may, in the alternative, remand down to the District court for the final findings on the facts.

Impacts of the Supreme Court Ruling:

Does this ruling impact Maui’s other injection wells? Yes, the ruling sets the standard or test by which all other injection wells and indirect sources of pollution will be analyzed. It appears that there will be liability for polluting injection wells. However, cesspools may not be included under this test.

How will this ruling change the situation and conditions along West Maui? This ruling should help to improve water quality on the West Coast of Maui by removing a source of water pollution.

Will the SCOTUS ruling improve ocean conditions and how? Yes, by setting up a standard that can be used to find liability for water quality pollution, the ruling will help address and abate pollution into the waters of the U.S.

Will this impact people with cesspools? Not likely. This ruling only applies to pollution that is direct or the functional equivalent to direct pollution such as in the injection wells case, which is highly traceable. For 30 years the U.S. EPA has managed indirect pollution, including instances of pollution that travel through groundwater, without millions of homeowners on the hook for permits for their septic tanks or cesspools.

Does this ruling have larger repercussions for other parts of the United States? Yes, this case set nationwide precedent. The ruling upholds the intent of the Clean Water Act and ensures that our Nation’s waters remain protected. If the Supreme Court had sided with Maui County and overturned the Ninth Circuit’s ruling, it would have allowed industry to freely pollute U.S. waters as long as the pollution isn’t directly discharged into a water source.