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The Clean Water Case of the Century

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

Coral damage resulting from wastewater effluent seeps offshore of Kahekili Beach Park on Aug. 19, 2019.
Melissa Lyttle for Earthjustice
Wastewater effluent seeps and resulting coral damage in the reef offshore of Kahekili Beach Park, Maui, Hawaii.
Video by Marley Rutkowski
The Earthjustice legal team at the U.S. Supreme Court on Nov. 6, 2019 (top). 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 The Earthjustice legal team at the U.S. Supreme Court on Nov. 6, 2019. Melissa Lyttle for Earthjustice

Updated Nov. 14

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

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.

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

What happened at the U.S. Supreme Court?

On Nov. 6, 2019, Earthjustice attorney David Henkin presented oral arguments before the nine Justices of the U.S. Supreme Court in Hawaiʻi Wildlife Fund v. County of Maui. A decision is expected in 2020.

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.
  • 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?

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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 is the legal history of this case?

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 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 Hawaiʻi Wildlife Fund v. County of Maui, a decision intended to avoid a standoff at the U.S. Supreme Court that could jeopardize clean water across the United States. But the case is not over yet. The County of Maui still must officially submit the paperwork to settle the case. That responsibility must be carried out by the county’s corporation counsel attorneys. It remains to be seen if they will follow the will of the people of Maui.

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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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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.

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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.
Earthjustice Staff Attorney David Henkin, at the U.S. Supreme Court.
Melissa Lyttle for Earthjustice
Attorney David Henkin, based in Earthjustice's Honolulu office, has worked for more than two decades to defend Hawaiʻi's flora and fauna. He is defending our nation's clean water at the U.S. Supreme Court.

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