School navigation

Environmental, Natural Resources, & Energy Law Blog

County of Maui, Hawaii v. Hawaii Wildlife Fund (No. 18-260) - Kristen Souza

August 19, 2020

County of Maui, Hawaii v. Hawaii Wildlife Fund (No. 18-260)

Kristen Souza - LLM Student

Introduction

The Supreme Court will render a decision soon in The County of Maui, Hawaii v. Hawaii Wildlife Fund, 881 F.3d 754 (9th Cir. 2018) case. This is a pivotal Clean Water Act case because of the potential for widespread impact, which will require permits in broader situations encompassing point sources and groundwater. The County blatantly circumvented the Clean Water Act based on the facts of the case. The way in which they went about doing so focused on technicalities and the fact that the water did not flow directly to the ocean from the Lahaina Wastewater Treatment Facility. Instead of arguing how its system did not violate the Clean Water Act requirements, the County of Maui should hold itself accountable and comply with the rules that are meant to protect our nation’s waters. Maui County should have followed the simple premise of doing the right thing and having a moral compass instead of focusing in-depth on the intricacies of how the construction of the Lahaina Wastewater Treatment Facility makes it acceptable for the effluent to make its way to the Pacific Ocean in the manner in which it does.

Ultimately, this case is about whether a wastewater treatment facility in Maui violated the Clean Water Act by polluting the ocean indirectly through groundwater.1 Hawaii, as an archipelago surrounded by water, helps to shape our country’s water laws, and the Maui water case is just one example of our impact on national policy. It is my hope that the Supreme Court will rule against the County of Maui and enforce the intention of the Clean Water Act. A National Pollutant Discharge Elimination System (NPDES) permit is required for the Lahaina Wastewater Treatment Facility to discharge its effluent into the ocean, even if the waste makes its way through groundwater before it hits the ocean.

Oh “Well”—The Case of Wells, Effluents, Discharge, Groundwater, and the Pacific Ocean

For over three decades, since the 1980’s, Maui’s Lahaina wastewater treatment facility has discharged an exorbitant amount of treated sewage into groundwater that heads to the surrounding waters of Kahekili Beach.2 Procedurally, the United States District Court for the District of Hawaii ruled in 2014 in favor of the Plaintiffs: Hawai’i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association.3 The Ninth Circuit Court of Appeals affirmed the District Court’s ruling when they essentially stated that at its very basic level, this case was about preventing the County from doing indirectly that which it cannot do directly.4 Coming to a different conclusion would be a laughable interpretation of the CWA’s prohibitions.5 Essentially, the Court of Appeals deemed Maui County to have circumvented the Clean Water Act.

Understanding the background of the case is essential: Maui County owns and operates four wells at the Lahaina Wastewater Reclamation Facility (‘‘LWRF’’), a major wastewater treatment plant in the western part of Maui.6 Wells 1 and 2 were installed in 1979 as part of the original 1975 plant design, and Wells 3 and 4 were added in the mid-1980’s.7 The wells were constructed initially to serve as a backup disposal method for water reclamation, and therefore have since become the county’s primary means of effluent disposal into groundwater and the Pacific Ocean.8

Further, the LWRF receives approximately 4 million gallons of sewage per day

and serves 40,000 people.9 That sewage is treated at the facility and then sold to customers for irrigation purposes or injected into the wells for disposal. The County disposes of almost all the sewage it receives—it injects approximately 3 to 5 million gallons of treated wastewater per day into the groundwater via its wells.10

Oddly enough,

 

That some of the treated effluent then reaches the Pacific Ocean is undisputed. The County expressly conceded below and its expert confirmed that wastewater injected into Wells 1 and 2 enters the Pacific Ocean. The Associations submitted various studies and expert declarations establishing a connection between Wells 3 and 4 and the ocean. Although the County quibbles with how much effluent enters the ocean and by what paths the pollutants travel to get there, it concedes that effluent from all four wells reaches the ocean. The County has known this since the Facility’s inception. The record establishes the County considered building an ocean outfall to dispose of effluent directly into the ocean but decided against it because it would be too harmful to the coastal waters. It opted instead for injection wells it knew would affect these waters indirectly. When the Facility underwent environmental re- view in February 1973, the County’s consultant—Dr. Michael Chun—stated effluent that was not used for reclamation purposes would be injected into the wells and that these pollutants would then enter the ocean some distance from the shore. The County further confirmed this in its reassessment of the Facility in 1991.11

 

Three points seems apparent with these facts: (1) The County strategically built the LRWP in a way that avoids liability under the Clean Water Act, hence bypassing the permitting process; (2) The County acknowledges that the discharge reaches the Pacific Ocean indirectly through groundwater; and (3) The County believes that they did nothing wrong in taking all these actions (or inaction), even though, “[a]ccording to the County’s expert, when the wells inject 2.8 million gallons of effluent per day, the flow of effluent into the ocean is about 3,456 gallons per meter of coastline per day—roughly the equivalent of installing a permanently-running garden hose at every meter along the 800 meters of coastline.”12

Permission to Permit—Does the Environmental Protection Agency Have Authority Here?

“Point sources” and “nonpoint sources” comprise the crux of the argument. None of the parties disputes that each of the four wells constitutes a “point source” under the Clean Water Act.13 Given the wells are “discernible, confined and discrete conveyance[s] TTT from which pollutants are TTT discharged,” and the plain language of the statute expressly includes a “well” as an example of a “point source,” the County could not plausibly deny the wells are ‘‘point sources’’ under the statute.14 The record further establishes that from these point sources the County discharges ‘pollutants’ in the form of treated effluent into groundwater, through which the pollutants then enter a ‘navigable water[],’ the Pacific Ocean.15

NPDES regulation is triggered when point sources are involved. In comparison,

pollution TTT arises from many dispersed activities over large areas, is not traceable to any single discrete source and overall, and it is not easy to regulate through permits.16 The injection wells are point sources. The wastewater goes into the injection wells and into the groundwater, and then makes its way into the Pacific Ocean.17 Specific to point sources, a party violates the Clean Water Act when it does not obtain such a permit and (1) discharges (2) a pollutant (3) to navigable waters (4) from a point source.18

However, the argument is that the groundwater, as the intermediary between the injection

wells and the Pacific Ocean, “cuts off” the flow of wastewater between these two entities. Moreover, in doing so, the point source does not directly “cause” the discharge into the ocean, the groundwater does. This is a far-fetched argument, in my opinion, but the issue at hand. This poses the question as to “where the line falls between the Clean Water Act’s federal point source program and its state law nonpoint source program,”19 according to Elbert Lin, Esq., Attorney for Petitioner in the Supreme Court Case.

To Settle or Not to Settle? The Tale of the Mayor and the Maui County Council

In October 2019, Maui Mayor, Mike Victorino, declared that he wanted to have County of Maui residents and taxpayers have their opportunity to be heard by the Supreme Court, which sadly, went against the County Council’s vote and recommendation to settle the case and move beyond this matter.20 In addition, Mayor Victorino said: “[t]o allow this to go unanswered leaves us vulnerable to more lawsuits, to uncertain regulatory requirements and staggering costs—all for what would be negligible environmental benefit.”21 Mayor Victorino did not have the best interests of his constituents in mind when he made this determination, as many Maui residents were not pleased with the County and its lack of care for this very important environmental issue. It appeared that many residents wanted the County of Maui to take accountability for its wastewater treatment facility woes. Going against the County Council’s vote is just plain wrong. Proving a point about whether the County of Maui was right in the way they constructed and dealt with the LWRF is not as important as doing the right thing and helping to keep our nation’s navigable waters clean.

The Supreme Court Oral Argument: The Hypothetical Hype (Did Someone Say Whiskey?)

Mr. Malcolm Stewart, Esq., in support of the Petitioner, gave an example involving pouring whiskey in his Supreme Court Oral Argument (Case 18-260) in this case. In this manner, which I provide here verbatim due to the detailed example, he states:

[I]f at my home I pour whiskey from a bottle into a flask and then I bring the flask to a party at a different location and I pour whiskey into the punch bowl there, nobody would say that I had added whiskey to the punch from the bottle. It would be true that the punch –that the whiskey originated in the bottle, its route was fairly traceable from the bottle to the punch bowl, and it wound up in the punch bowl, but you wouldn’t say it was added to the punch from the bottle.

 

Now, at the other extreme, if I brought the bottle to the party and I poured it, the whiskey from a few inches above the surface of the punch and so it traveled through air or if it traveled through a funnel so it passed over a solid surface, in ordinary parlance, we wouldn’t say that simply because there was some spatial gap between the bottle and the punch, therefore, I didn’t add it from the – the bottle to – to the punch.22

 

If one creates the situation in which water, and in the example, whiskey, does not go from

one outlet to the other, and forms the “in between” mechanism that artificially bypasses the Clean Water Act, then what’s the point of having the Clean Water Act? The Clean Water Act has a purpose, and to skirt that purpose is outrageous. The 1972 Amendments to the Federal Water Pollution Control Act of 1948 became known as the Clean Water Act, and its intent was to “establish the basic structure for regulating pollutant discharges”23 and “made it unlawful for any person to discharge any pollutant from a point source into navigable waters, unless a permit was obtained under its provisions”24 among other objectives. The County of Maui contends that since the groundwater is a nonpoint source, than the point source program and permitting process does not apply.25 I disagree with this point. Justice Breyer made an issue about whether there can be avoidance of the point source regulation by simply cutting off the pipes so the effluent does not reach the ocean, which is basically what Maui County purported to do.26 Hence, Justice Breyer was seeking a standard that prevented evasion.27

Predicting the Future: A Victory for Victorino and the County of Maui?

Based on my reading of the Supreme Court of the United States’ (SCOTUS) transcript in this case, SCOTUS seemed rather perturbed with Maui County’s interpretation of the Clean Water Act.28 The Justices strongly questioned the County of Maui’s interpretation of the statutory language which if interpreted the way the county allowed, would presumably make it easier to justify how the Clean Water Act does not apply to its situation.29 Justice Sotomayor especially took issue with the language interpretation issue.30

  When all is said and done, Maui County should recalibrate its moral compass, no matter what SCOTUS opines. The point of the Clean Water Act is to protect our nation’s navigable waters. It is problematic if the law is skirted so that the rules set in place do not have to be followed. This is what happened with Maui County: it found a loophole and interpreted the law how it wanted out of convenience. Hence, it made the rules irrelevant to their cause. If SCOTUS finds against the County of Maui, then the floodgate will open in making permitting necessary even in technically questionable situations or where there seems to be leeway to circumvent the rules.

Conclusion: Does One Exist With the Constant Evolution of Environmental Law?

Environmental law is a constantly changing and evolving area of law. New circumstances and challenges allow the courts to revisit the Clean Water Act and other laws or agency rules. All states and counties should do their absolute best to adhere to the legal and ethical standards set forth by the Clean Water Act and agencies and take proactive measures to ensure that adherence to these rules occur and circumvention of these policies do not happen.

 

 

 

 

 

 

 

 

 

 

 

1 https://earthjustice.org/features/supreme-court-maui-clean-water-case

2 https://earthjustice.org/features/supreme-court-maui-clean-water-case

3 See id.

4 https://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/01/15-17447.pdf

5 https://earthjustice.org/sites/default/files/files/Lahaina%20Injection%20wells%202018-2-1%20Opinion.pdf

6 Hawai`i Wildlife Fund v. County of Maui, 881 F.3d 754, 758 (9th Cir. 2018).

7 See id.

8 See id.

9 See id.

10 See id.

11 See id.

12 Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754, 758 (9th Cir. 2018).

13 Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754, 760 (9th Cir. 2018); Clean Water Act §§ 1362(7)–(8), (12), (14)

14 Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754, 760 (9th Cir. 2018); Clean Water Act §§ 1362(7)–(8), (12), (14)

15 Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754, 760 (9th Cir. 2018); Clean Water Act §§ 1362(7)–(8), (12), (14)

16 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 508 (9th Cir. 2013) (citations omitted).

17 Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754, 760 (9th Cir. 2018).

18 Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir. 2001) (citation omitted).

19 https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-260_m6hn.pdf

20 Maui Mayor Says He Won’t Drop Wastewater Case Headed to US Supreme Court, October 18, 2019, https://www.hawaiinewsnow.com/2019/10/19/maui-mayor-says-he-wont-drop-wastewater-case-headed-supreme-court/

21 See id.

22 https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-260_m6hn.pdf

23 https://www.epa.gov/laws-regulations/history-clean-water-act

24 Id.

25 See id.

26 See id.

27 See id.

28 See id.

29 See id.

30 See id.

2