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The Clean Water Case of the Century

The U.S. Supreme Court is set to review Hawaiʻi Wildlife Fund v. County of Maui. The fate of the nation’s clean water hangs in the balance.

Wastewater effluent seeps and resulting coral damage in the reef offshore of Kahekili Beach Park, Maui, Hawaii.
Video by Marley Rutkowski
Wastewater effluent discharge and resulting coral damage in the reef offshore of Kahekili Beach Park, Maui, on Aug. 19, 2019.
Wastewater effluent discharge and resulting coral damage in the reef offshore of Kahekili Beach Park, Maui, Hawaiʻi, on Aug. 19, 2019. Video by Marley Rutkowski

Aug. 29, 2019

The nation's highest court is set to settle a decades-long legal dispute involving a wastewater treatment plant, its pollution discharges, and a partially dead coral reef in Hawaiʻi.

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

Our Clients Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, West Maui Preservation Association

The U.S. Supreme Court is reviewing Hawaiʻi Wildlife Fund v. County of Maui, which involves a Maui wastewater treatment facility that has been injecting millions of gallons of treated sewage each day into groundwater that flows to the ocean.

On Nov. 6, 2019, Earthjustice will head to the Supreme Court for oral arguments fighting to maintain protections for clean water across the country.

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

At its most basic level, this case is 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.

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A turtle surfaces offshore of Kahekili Beach Park, Maui, Hawaii.
Don McLeish
A turtle surfaces offshore of Kahekili Beach Park, Maui, Hawaiʻi.
Coral damage resulting from wastewater effluent seeps offshore of Kahekili Beach Park on Aug. 19, 2019.
Marley Rutkowski
Coral damage resulting from wastewater effluent discharges offshore of Kahekili Beach Park Aug. 19, 2019.
An undamaged, healthier area of the reef offshore of Kahekili Beach Park.
Jennifer Smith
Healthier, undamaged area of the reef offshore of Kahekili Beach Park away from the wastewater discharges.

What’s the current status of the case?

So far, two courts have 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 argues 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.

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.”

Unfortunately, Maui County isn’t giving up. It has successfully petitioned the United States Supreme Court to hear the case, an act which now endangers clean water protections writ large.

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Why does this case matter beyond Maui?

If the Supreme Court sides with Maui County and overturns the Ninth Circuit’s ruling, it would allow 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 could blow a hole in the Clean Water Act. It would essentially allow groundwater to “launder” pollution, allowing polluters to evade responsibility even if their waste contaminates clean water. This is 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.”

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An estimated 82,000 tons of toxic coal ash leaked into the Dan River in 2014.
Waterkeeper Alliance
A toxic coal ash turned the Dan River gray for 20 miles east of the North Carolina border.
Rick Dove / Waterkeeper Alliance
Toxic coal ash dumped into the Dan River in 2014 turned the waters gray for 20 miles east of the North Carolina border.
Toxic coal ash waste, the red material in the river bank, from Dynegy’s Vermilion Power Plant in Oakwood, Illinois, can be seen leaking into the Middle Fork of the Vermilion River.
Prairie Rivers Network
The red material in the river bank of the Middle Fork of the Vermilion River is toxic coal ash waste, leaking from Dynegy’s Vermilion Power Plant in Oakwood, Ill.
The top largemouth bass in this photo, collected in June 2016 from Herrington Lake, Ky., has scoliosis, a common deformity caused by selenium poisoning.
A. Dennis Lemly
Kentucky's Herrington Lake has alarming numbers of young fish with spinal and craniofacial deformities, which are telltale signs of coal ash contamination.

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.

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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.

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Why does this case matter to me?

Maui County’s argument is not only absurd, it’s extremely dangerous. If the Supreme Court rules in the county’s favor, it will jeopardize clean water across the country.

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

Offshore of Kahekili Beach Park, Maui, Hawaiʻi.
Photo courtesy of Don Mcleish
Offshore of Kahekili Beach Park, Maui, Hawaiʻi.

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