Summary
Hawaiian culture is sacred. Hawaiians give much respect to the history and folklore of their state. Forest, streams, oceans and humans are all interconnected creating “Ohana” one family, protecting invaluable resources. Hawaiian mythology tells a tale of Kane and Kanaloa; Gods of Water, who when they desired to drink would dig their hands into the earth calling on the fresh water to quench their thirst. Circa 2020, if one were to dig into the earth in Maui County, that drink of water would include seepage from the Lahaina Wastewater Reclamation Facility.

Conservation groups are on a mission in Hawaii. Protecting the vitality of the ocean is a major focus. In 2012, Hawaii Wildlife Fund (HWF), along with The Surfrider Foundation, Sierra Club- Maui Group and West Maui Preservation Association, initiated a civil action against Maui County, alleging that The Lahaina Wastewater Reclamation Facility was injecting treated sewage into groundwater that inevitably reaches the Pacific Ocean. HWF states that the injection wells are a direct point source of pollution and therefore in violation of The Clean Water Act (CWA). The facility would need to apply for a National Pollutant Discharge Elimination System Permit (NPEDS) from the Environmental Protection Agency (EPA) in order to be in compliance with the CWA. As a result of failure to comply, pollution has created severe biological disruptions to coral reefs, marine life, strained social goods and economic services.

The Clean Water Act, is the nation’s primary federal law governing water pollution. The main purpose of the statute is to restore chemical, biological and physical integrity of the nation’s navigable waters. The act establishes a structure to discharge pollutants, and activates the EPA to set standards for municipal and commercial industries. The Lahaina Wastewater Reclamation Facility is authorized by the EPA to operate four class V injection wells, to dispose of effluents. Producing 3-5 million gallons of liquid waste from the county’s 40,000 residents, the injection wells are essentially pipelines that travel far beneath the earth’s surface,entombing waste into porous rock. The concern lies with the seepage from the injection wells which invade groundwater, and ultimately marry into the Pacific Ocean.

County of Maui v. Hawaii Wildlife Fund 2020, has endured a lengthy litigation process. The United States District Court for the District of Hawaii 2014 ruling was in favor of the plaintiffs. The Court agreed that the Lahaina Wastewater Facility needed to apply for an NPDES permit, and referred to the injection wells as a “direct” point source.  Maui County challenged that decision to the Ninth Circuit Court of Appeals. Maui County argued that the injection wells were a source of indirect pollution and named  groundwater, as the culprit which indirectly infused de minimis amounts of liquid sewage into navigable waters.  The Circuit Court upheld the lower court’s ruling. Maui County, unsatisfied with the verdict petitioned The United States Supreme Court, who granted the petition in February 2019.

Analysis

The SCOTUS issued its 6-3 decision on April 23, 2020. The issue; Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. In interpreting the language of the CWA, which defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source, the court held that “a permit is required when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.”

The outcome is a victory for environmentalists who work tirelessly to defend navigable waters against an administration who is hellbent on gutting clean water. The Trump Administration repealed the Clean Water Rule of 2015, which protected drinking water for 117 million Americans. They also finalized The Navigable Waters Protections Rule this past April. The vague policy undermines the CWA, cutting protections for national waters. Environmentalists along with some states are ready to sue, on grounds that the new policy is dangerously weak.

The good news? If and when litigation battles commence over the intention of The Clean Water Act, courts will be able to refer to County of Maui v. Hawaii Wildlife Fund 2020. This ruling offers communities reprieve that industries will be held legally responsible if they are negligent in dumping pollutants into navigable bodies of water.

Learn More

Resistance Resources

• Blue Coast . (2020). Retrieved from bluecoast.org: http://www.bluecoast.org/kanaloa.html
• EarthJustice . (2020). Retrieved from earthjustice.org: https://earthjustice.org/blog/2019-october/what-the-trump-administration-is-doing-to-your-water
• Hawaii Wild Life Fund. (2020). Retrieved from wildhawaaii.org: https://www.wildhawaii.org/
• Surf RIder Foundation . (2020). Retrieved from surfrider.org : https://www.surfrider.org/initiatives/clean-water
• West Maui Preservation Association . (2020). Retrieved from .savewestmaui.com: https://www.staradvertiser.com/2020/04/23/breaking-news/in-maui-sewage-case-u-s-supreme-court-sees-broad-reach-of-clean-water-act/