An overview of the case from our friends at Earthjustice.

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Hawai‘i Wildlife Fund v. County of Maui

Overview of the Case:

The Supreme Court has agreed to hear a case that threatens to gravely weaken the federal law that protects nation’s clean water putting rivers, lakes, and oceans at risk.

Hawai‘i Wildlife Fund v. County of Maui is a case concerning a wastewater facility in Maui that violated the law by discharging millions of gallons of treated sewage each day into the Pacific Ocean via the groundwater beneath the facility, devastating a formerly pristine reef.

The county argues it does not require Clean Water Act permits for its pollution because it is not discharging “directly” into waters of the US, but instead through groundwater.

Earthjustice represents four Maui community groups: Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association.

What’s At Stake:

At the heart of their argument is the contention that even if pollution from a source reaches a river, lake, or other body of water protected by the Clean Water Act, as long as the source is not directly discharging pollution into that water, it is not regulated by the Clean Water Act.

This argument effectively reasons that an industrial source like a chemical plant or concentrated animal feeding operation next to a river could saw off 20 feet of pipe, dumping pollution on a hillside that flows into the river, or redirect the pipe into the groundwater and it would be unregulated by the Clean Water Act.

If the Supreme Court reverses the Ninth Circuit’s decision holding that the County’s claims were unlawful, chemical plants, concentrated animal feeding operations, oil refineries, and other industrial facilities could effectively have free rein to discharge pollutants indirectly into the nation’s waters without Clean Water Act permits.

The final outcome of this case could determine whether the American public will continue to be protected from these types of harmful polluting activities.

Who Is To Gain:

The list of groups that have filed amicus briefs to the county’s claims is a who’s who of major polluting industries. It includes manufacturing, oil and gas, industrial agriculture, utilities, and mining industries.

Amici supporting Maui County include Kinder Morgan, Energy Transfer Partners (the company behind the Dakota Access Pipeline), the U.S. Chamber of Commerce, American Fuel & Petrochemical Manufacturers, National Mining Association, and Agricultural Business Organizations.

The Environmental Protection Agency, which previously filed an amicus brief in the Ninth Circuit supporting clean water advocates’ argument against Maui County, reversed its position under President Trump. This is reversing four decades of previous EPA guidance that the Clean Water Act does regulate discharges of pollution that end up in Waters of the US through groundwater.

Over the past four decades, the Environmental Protection Agency and states across the country have used their Clean Water Act authority to prevent a variety of industries — including wastewater treatment facilities, chemical plants, concentrated animal feeding operations, mines, and oil and gas waste-treatment facilities — from contaminating our nation’s waters via groundwater.

In April 2019, EPA issued guidance that pollution discharges into waters of the United States via groundwater are categorically excluded from Clean Water Act regulation. This formally reverses the agency’s position before the Ninth Circuit in Hawai‘i Wildlife Fund v. County of Maui, and undermines the federal law protecting the nation’s rivers, lakes, and other waterways of the United States.

Who Could Lose:

The American people writ large whose clean water will be jeopardized by industries that are able to dump their pollution indirectly into waters of the United States.

Eleven different groups that include former Environmental Protection Agency (EPA) Administrators and Officials, 13 states, two counties facing similar pollution cases, a Native American tribe, craft brewers, law professors, aquatic scientists and scientific societies, and clean water advocates filed briefs in support of Earthjustice and its Maui community clients.

Background on the Case:

Kahekili Beach is located on the west side of Maui. In 2011, a U.S. Environmental Protection Agency-funded study used tracer dye to show conclusively that the Lahaina sewage flows with the groundwater into near-shore waters off Kahekili Beach.

In March 2018, the 9th U.S. Circuit Court of Appeals ruled that Maui County has been violating the federal Clean Water Act since its Lahaina Wastewater Reclamation Facility was first put into operation in the early 1980s. Serving West Maui, the Lahaina facility injects 3 to 5 million gallons of treated sewage each day into groundwater, which then transports the sewage to the ocean. Though treated, the sewage still contains a variety of contaminants, including excess nutrients that have been linked to algae blooms and are shown to damage coral reefs.

Four Maui community groups represented by Earthjustice sued the county in 2012, seeking to protect the sensitive coral reefs at Kahekili from harmful pollution.

In 2017, scientists from the U.S. Geological Survey, the State of Hawaiʻi’s Division of Aquatic Resources, and other experts published a peer-reviewed study documenting the ongoing and serious harm to the reef at Kahekili associated with the Lahaina facility’s discharges to the ocean.

Two courts have found the county’s argument absurd and have rejected its claims.

The 9th Circuit Court of Appeals upheld a lower court’s decision that the Maui wastewater facility was violating the law for these actions.

In the 9th Circuit opinion, the three judge panel wrote: “At bottom, this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the [Clean Water Act (CWA)] build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without [a CWA] permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the Clean Water Act’s prohibitions.”

Worst Case Scenarios:

Examples of where other courts have found that the Clean Water Act regulates discharge into groundwater include a Kinder Morgan-owned pipeline that ruptured spilling nearly 370,000 gallons of gasoline into groundwater that flows into tributaries of the Savannah River (Upstate Forever v. Kinder Morgan Energy Partners), cyanide from a gold mine that discharged into a lake via the groundwater (Wash. Wilderness Coal. v. Hecla Mining Co.), and animal waste from a dairy cow feeding operation that contaminated the Sacramento-San Joaquin River Delta system with nitrates via groundwater (Coldani v. Hamm).

Key Statements from Earthjustice Attorney David Henkin:

Re: Supreme Court granting CERT to Maui County:
“We are confident the Supreme Court will agree with the appeals court that, when Congress passed the Clean Water Act to protect our nation’s waters, it did not give polluters a loophole to use groundwater as a sewer to convey harmful pollutants into our oceans, lakes and rivers.”

Re: County filing opening brief in case:
“The County of Maui’s attorneys have done a wonderfully Orwellian job of professing support for the Clean Water Act while simultaneously trying to blow a hole in the law that protects our nation’s rivers, lakes, and oceans. This reading of the Act runs counter to 40 years of interpretation of the law that discharges that pollute our rivers, lakes and oceans via groundwater must comply with limits set by permits issued under the Clean Water Act.”

Re: Trump administration reversing its position in the case:
“While unsurprising, it is nevertheless disappointing that Trump’s Environmental Protection Agency has reversed the position that every other administration — Republican and Democratic — has consistently taken since the Clean Water Act was enacted. EPA’s new position would allow polluters to dump their waste and toxic discharges into groundwater and would hold no one accountable when that pollution flows into oceans, lakes, and rivers. Two lower courts found that position absurd, and we will do everything in our power to convince the Supreme Court to reach the same conclusion.”

Re: Amicus briefs filed in support of our case:
“As the amicus briefs vividly illustrate, this case pits those who are committed to the protection of life-giving, clean water against the Trump administration and polluting industries that want free rein to use groundwater as a sewer to dump their waste and toxic discharges into our nation’s lakes, rivers, and oceans.”