The Clean Water Case of the Century Heads to the Supreme Court

On November 6, four Maui community groups and Earthjustice will defend the Clean Water Act


Liz Trotter, Earthjustice, (305) 332-5395

The Supreme Court will hear oral arguments on Wednesday, Nov. 6, in County of Maui v. Hawaiʻi Wildlife Fund, a case that will decide whether the Clean Water Act regulates pollution discharges that “indirectly” enter protected waters, the outcome of which could imperil clean water across the nation. Oral arguments start at 10 AM EST.

The case concerns a Maui wastewater facility that discharges millions of gallons of treated sewage each day into the Pacific Ocean via the groundwater beneath the facility, which has devastated a formerly pristine reef. The County of Maui argues it does not need Clean Water Act permits for such an action because it is not discharging directly into waters protected by the Clean Water Act. However, the Clean Water Act does not require a “direct” injection of wastewater in waters of the U.S. Both the Hawaiʻi District Court and the 9th Circuit Court of Appeals rejected the County’s argument and concluded that the County of Maui is violating the Clean Water Act.

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

“We are arguing against Maui County’s extremist position that unless a pipe goes directly into the ocean or a lake and river, it is completely unregulated by the Clean Water Act,” said David Henkin, staff attorney from Earthjustice’s Mid-Pacific office who will be arguing the case. “If the Supreme Court endorses the county’s position, it would open a massive loophole for every polluter in the country to avoid regulation of their discharges by the law that protects the nation’s waterways.”

“We hope that the letter and intent of the Clean Water Act are upheld by the U.S. Supreme Court in our case, and that they rule in our favor, as the two previous courts have done, and continue to protect the nation’s lakes, rivers, and nearshore waters,” said Hannah Bernard, Executive Director and co-founder of Hawaiʻi Wildlife Fund. “After 12 years of fruitless negotiations and filing of this lawsuit, we are dismayed that our case was elevated to this level by Maui County’s mayor, since it defies the will of the people of Maui and the Maui County Council to protect our reefs.”

“The Sierra Club Maui Group is proud to continue standing with our allies and partners to protect our clean water, our communities, and our way of life,”said Rob Weltman, Sierra Club-Maui Group chair. “We are confident the Supreme Court’s decision will follow the facts and the decisions of the lower courts to safeguard the Clean Water Act not just for Hawaiʻi and its people but for every person that calls this country home.”

“At the end of the day, this case is about protecting Hawaiʻi‘s coastal environment and our nation’s waters,” said Angela T. Howe, Esq., Surfrider Foundation Legal Director. “We hope that the nine Supreme Court justices can stand up and honor the intent of U.S. premier water quality law, the Clean Water Act.”

What you need to know:

  • When: November 6, 2019, at 10:00 AM EST
  • Where: United States Supreme Court, Washington, D.C.
  • Case: County of Maui v. Hawaiʻi Wildlife Fund

Read background information on the case and legal documents.

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

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Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.