In First Application of Supreme Court’s Maui Test, Court Reaffirms Protection for Nation’s Waters

Yesterday, the Hawai‘i district court denied the County of Maui’s request to reconsider the court’s July 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. The facility discharges millions of gallons of treated sewage into the ocean each day via groundwater, polluting local reefs. The court rejected the county’s claim that it could evade responsibility for violating the Clean Water Act unless Maui-based plaintiff groups could prove “exactly where each drop of wastewater reached the ocean,” noting that this would be “an impossible task.”

The Hawai‘i district court is the first court in the nation to apply the Supreme Court’s test for when pollutant discharges that reach surface waters via groundwater require a Clean Water Act permit, which the Supreme Court announced last year in an earlier phase of the case.

The following is a statement from David Henkin, the Earthjustice attorney who has argued the case since its inception in 2012, including before the Supreme Court:

“The Hawai‘i district court’s ruling is welcome news to everyone across the country who is fighting to protect clean, healthy water for future generations. 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.”

Background

Hawai‘i Wildlife Fund v. County of Maui is a case concerning a wastewater facility in Maui that discharges 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 argued it does not require Clean Water Act permits for its pollution because it is not discharging “directly” into waters of the U.S., but instead through groundwater.

Last year, the Supreme Court rejected the county’s interpretation as “unreasonable” because it would “create a serious loophole” in the Clean Water Act’s permitting regime. The Supreme Court held instead that the Clean Water Act requires a permit “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source” — such as a pipe — “into navigable waters.”

In Hawai‘i Wildlife Fund v. County of Maui, Earthjustice represents Maui-based community groups Hawai‘i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association.