The Clean Water Case of the Century

A turtle surfaces offshore of Kahekili Beach Park, Maui, Hawaii.
A turtle surfaces offshore of Kahekili Beach Park, Maui, Hawaii. (Courtesy of Don McLeish)

The nation's highest court sided with clean water advocates in a decades-long legal dispute involving a wastewater treatment plant, its pollution discharges, and a partially dead coral reef in Hawaiʻi.

“This decision is a huge victory for clean water,” said David Henkin, the Earthjustice attorney who argued the case before the U.S. Supreme Court.

Our Clients Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, West Maui Preservation Association
Read the Supreme Court Decision

In 2020, the U.S. Supreme Court issued its decision solidifying the Clean Water Act’s place as one of the nation’s most effective environmental laws.

The following year, in the first application of the Supreme Court's test, the Hawai‘i district court reaffirmed protections for the nation's waters.

What started as a local water pollution case could have had disastrous repercussions for clean water across the United States.

What did the U.S. Supreme Court decide?

The U.S. Supreme Court's decision leaves in place vital protections for the nation’s oceans, rivers, and lakes.

The court found that point source discharges to navigable waters through groundwater are regulated under the Clean Water Act. In its decision on County of Maui v. Hawaiʻi Wildlife Fund, the court held that the Clean Water Act “require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”

In other words, the Clean Water Act prohibits unpermitted discharge of pollution “into navigable waters, or when the discharge reaches the same result through roughly similar means.”

In doing so, the Court rejected the Trump administration’s polluter-friendly position in the clearest of terms: “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”

The opinion was written by Justice Breyer with a vote of 6-3; with Chief Justice Roberts joining the opinion, along with Ginsburg, Sotomayor, Kagan, and Kavanaugh. (Learn about what happens next with this case, following the Supreme Court's decision.)

Abigail Dillen, President of Earthjustice, explains what happened and what the ruling means:

It’s stunning to think how close we came to a world where industries could just point their pipes straight down into groundwater to dispense of their pollution indirectly into clean water without repercussion.

— Abbie Dillen (@AbbieDillen) April 23, 2020

What happened during oral arguments at the U.S. Supreme Court?

Earthjustice attorney David Henkin presented oral arguments in November, before the nine Justices of the U.S. Supreme Court in County of Maui v. Hawaiʻi Wildlife Fund

The Justices posed tough questions to both sides. (Read the transcript.) A summary of the hearing:

  • The County’s interpretation of the Clean Water Act is that a “point source” (such as a pipe) must be the thing that delivers pollution for it to be regulated. That, once in groundwater or not straight from the “point source,” the Clean Water Act does not regulate that discharge.
  • A few Justices feared the County’s position would create a roadmap for polluters to evade regulation. Justice Breyer asked: What if we end the pipe five feet from the ocean?
  • Justice Kagan doubled down, saying nobody would get a permit if they could cut the pipe a few feet short.
  • But the Justices also asked Earthjustice attorney Henkin: What should be a definition for a limit to what is regulated? Would this interpretation mean homeowners' septic tanks that leach through groundwater to a river need to get permits under the Clean Water Act (or face stiff fines).
  • Henkin explained that pollution that is “traceable” and a “proximate cause” would be regulated and that for three decades, U.S. EPA had gone with that interpretation without millions of homeowners on the hook for pollution from their septic tanks. (More on the back and forth over the Justice’s questions on limits.)
  • The County also deflected responsibility back to the states, saying state groundwater permitting, grant programs, etc., are sufficient to regulate that flows from a point source (such as Maui County’s wastewater wells) through groundwater and to a protected body of water.
  • Justice Sotomayor interjected that that’s a problem because it presumes the state will regulate that pollution. Justice Kagan also stated that this case isn’t about relying on state backstops.
  • The attorney for the U.S. Government made an analogy about spiking a punch with whiskey. Henkin deftly turned it back around.

The attorney for the U.S. Government made an analogy about spiking a punch with whiskey. Henkin deftly turned it back around. @Earthjustice’s Sam Sankar explains here.

— Earthjustice (@Earthjustice) November 6, 2019

  • Justices generally seemed to reject the County's extreme position that only pollution direct from a point source is regulated, so pollution sprayed through air or that travels over ground would also be free of Clean Water Act regs. But they seemed unsure how far to go.
  • At the end, Justice Sotomayor brought it home asking: What current regulations exist that stop the county from polluting the ocean? It’s definitely happening, and Maui County says the Clean Water Act shouldn't stop them — so are they just going to get away with it? What is being done to stop this?

.@Earthjustice attorney David Henkin gives his final thoughts on defending America's clean water in front of the Supreme Court, likely the biggest day of his career. #CleanWaterActIntact

— Earthjustice (@Earthjustice) November 6, 2019

What’s County of Maui v. Hawai‘i Wildlife Fund about?

At its most basic level, this case was about whether a wastewater treatment facility in Maui is violating the Clean Water Act by polluting the ocean indirectly through groundwater.

Since the 1980s, Maui’s Lahaina wastewater treatment facility has been discharging millions of gallons daily of treated sewage into groundwater that reaches the waters off Kahekili Beach, a favorite local snorkeling spot. Depending on local geological conditions, groundwater, which is any water that exists beneath the land’s surface, can flow into major waterways like rivers, streams, and, in the Maui case, the ocean.

In 2012, after years of complaints from the community and unsuccessful negotiations with county officials over the destruction the pollution has caused to the reef and marine life, Earthjustice sued Maui County on behalf of four Maui community groups — Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association.

What is the legal history of this case, before it reached the Supreme Court?

Prior to the U.S. Supreme Court's Apr. 23 decision, two courts ruled in favor of Earthjustice and its clients. In 2016, the U.S. Environmental Protection Agency also agreed with the courts that Maui County was acting illegally.

The county doesn’t dispute that its wastewater pollution reaches the ocean.

Instead, it argued that the discharge of pollution from the facility’s wells does not require Clean Water Act permits because the pollutants do not flow directly into the Pacific Ocean, but indirectly through groundwater. Both the district court and the Ninth Circuit appeals court rejected the county’s claims.

“At bottom, this case is about preventing the county from doing indirectly that which it cannot do directly,” the Ninth Circuit ruled in 2018.

The District of Hawaiʻi court added in its 2014 ruling on the same issue that: “[Maui County’s claim] would, of course, make a mockery of [the Clean Water Act’s regulatory scheme] if [the] authority to control pollution was limited to the bed of the navigable stream itself. The tributaries which join to form the river could then be used as open sewers as far as federal regulation was concerned. No less can be said for groundwater flowing directly into the ocean.”

But Maui County wasn’t giving up. In Feb. 2019, it successfully petitioned the United States Supreme Court to hear the case, an act which now endangers clean water protections writ large.

On Sept. 20, 2019, the Maui County Council voted to settle County of Maui v. Hawaiʻi Wildlife Fund, a decision intended to avoid a standoff at the U.S. Supreme Court that could jeopardize clean water across the United States. But the County of Maui had to officially submit the paperwork to settle the case.

Why does this case matter beyond Maui?

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.

Over the past four decades, the U.S. EPA 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 the nation’s waters via groundwater.

Industry groups are closely watching this case, and the list of groups that have filed amicus briefs to the county’s claims is a who’s who of polluters.

A Supreme Court decision reversing the Ninth Circuit’s ruling would have blown a hole in the Clean Water Act. It would have essentially allowed groundwater to “launder” pollution, allowing polluters to evade responsibility even if their waste contaminates clean water. This was the perverse logic underlying Maui County’s claim that it doesn’t need a permit as long as its pollution runs through the groundwater before reaching the ocean.

Earthjustice attorney David Henkin finds this contention “absurd.”

“According to Maui County, a polluter can avoid the law by taking a pipeline that discharges waste directly into the ocean and cutting it ten feet short of the shoreline,” Henkin said.

Instead of discharging waste directly into the ocean, the polluter is discharging waste onto the beach that then makes its way into the ocean.

“At the end of the day, the water is still polluted,” says Henkin. “And, under the county’s twisted logic, the polluter would get off scot-free.”

Who is on the county’s side?

The list of groups that support Maui County’s efforts to gut the Clean Water Act 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 industrial agricultural business organizations.

The U.S. EPA under the Trump administration has also done an about-face to side with these industries. In April, the agency reversed four decades of agency guidance that the Clean Water Act does regulate discharges of pollution that reach our nation’s waters through groundwater.

4,600 miles due east of Maui, gasoline is flowing into Browns Creek, South Carolina, via contaminated soil and groundwater. Kinder Morgan says that isn’t the corporation’s problem. Justice for the community could hinge on the outcome of this Supreme Court case. Read the story of the small town of Belton, Anderson County.

Who is on the side of clean water?

Eleven different groups that include former U.S. EPA administrators and officials from multiple administrations, 13 states, two counties facing similar pollution, 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.

“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,” Earthjustice attorney David Henkin says.

What happened after the Supreme Court decision?

The case went back to the Ninth Circuit, which then sent it back to the district court.

The next step in the case was for the lower court to decide whether Maui’s discharges meet the new test established by the Supreme Court: whether the sewage plant discharges to the groundwater, through which the sewage migrates inevitably and inexorably to the ocean a quarter mile away, are the functional of direct discharges to the ocean.

On Oct. 20, 2021, the Hawai‘i district court did just that — reaffirming protections for the nation's waters in the first application of the Supreme Court's Maui test.

The court denied the County of Maui’s request to reconsider the court’s Jul. 26, 2021, decision that the county must get a Clean Water Act permit for injection wells at the Lahaina Wastewater Reclamation Facility in West Maui.

“As the first court to apply the Supreme Court’s test, the court sent a strong message of hope to communities seeking to protect their oceans, rivers, and lakes from polluters like Maui County that are fouling those life-giving waters by using groundwater as a sewer,” said Earthjustice attorney David Henkin.

Why does this case matter to me?

Maui County’s argument was not only absurd, it was extremely dangerous. If the Supreme Court had ruled in the county’s favor, it would have jeopardized clean water across the country.

If you care about clean water, then you should care about this case.

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Established in 1988, Earthjustice's Mid-Pacific regional office in Honolulu focuses on environmental and community health issues, including ensuring water is a public trust and achieving a cleaner energy future.

Established in 1988, Earthjustice's Mid-Pacific Office, located in Honolulu, Hawaiʻi, works on a broad range of environmental and community health issues, including to ensure water is a public trust and to achieve a cleaner energy future.