The clean water case of the century

Axel Beers

In the midst of the population and tourism boom of the 1970s, the County of Maui built underground injection wells to dispose of wastewater from the rapidly growing West Maui community. Pollutants from the partially treated sewage would eventually seep to the ocean, the County acknowledged in a 1973 environmental review, but the alternative to the wells was the less appealing ocean outfall, a pipe which would dump the effluent directly onto coastal water. So, two wells were constructed in 1979 as a backup disposal method for times, like rainy days, when wastewater would be in such excess that it could not be completely reused.

The Lahaina Wastewater Reclamation Facility would treat and recycle most of the waste, the County intended. But in 1985, two more injection wells were installed at the LWRF. Not long after, people began to notice algal blooms, dying reefs, and disappearing fish in the West Maui ocean.

These were the first signs of a coming decades-long battle that would eventually land the County of Maui in the Supreme Court fighting the “Clean Water Case of the Century.”

By 2008, the LWRF was only recycling about 20 percent of its water, said then-Wastewater Reclamation Division Chief Dave Taylor during an EPA hearing for the treatment plant’s Underground Injection Control permit. The remainder went into the injection wells and eventually the ocean, he added. At the same hearing, concerns were raised about algal blooms, reef health, excessive waste from development, and the need to recycle more wastewater. In the end, the EPA granted the LWRF a permit under the federal Safe Water Drinking Act.

However, the Safe Water Drinking Act was designed to protect aquifers and drinking water, not reefs. In 2012, Earthjustice stepped in to represent the Hawai’i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association, and Sierra Club – Maui Group in a lawsuit to address this permitting question. The groups argued that Maui County needed a National Pollutant Discharge Elimination System Permit to operate the LWRF. NPDES permits are administered under the Clean Water Act, which was written to regulate water quality in “navigable waters” (like oceans) of the United States.

In 2014, the District Court agreed and ruled in favor of the environmental groups. Maui County appealed the decision and lost in Ninth Circuit Court in 2018. The County appealed again, and in 2019 the US Supreme Court agreed to take up County of Maui v. Hawaii Wildlife Fund.

Yes, the “Clean Water Case of the Century” was essentially about permits. The implications of these permits, however, are wide ranging.

Evidence was mounting showing the connection between the LWRF injection wells and the ocean off Kahekili Beach in Ka’anapali, West Maui. A 2013 study conducted by the EPA, State DOH, US Army, and UH researchers found that tracer dye injected into the LWRF Wells 3 and 4 reached the “nearshore seafloor” in Ka’anapali in 84 days, with 64 percent of the treated wastewater discharging into the ocean. The journal Nature, in 2019, confirmed that corals living near these seep areas “are impacted by sewage-effluent injected at the LWRF.”

The case also garnered national attention. Groups like Anderson County (S.C.), Decatur County (Tenn.), and the federally recognized Native American Fond du Lac Band of Lake Superior Chippewa filed amicus curiae briefs opposing the County of Maui, with concerns that the County’s position could undermine the Clean Water Act’s protections, which had shielded the communities’ waters from gasoline, landfill, mercury, and sulfate pollution.

The County of Maui maintained its argument that the Clean Water Act permits were not necessary since the injection wells do not directly discharge into “navigable water” but rather get there indirectly through groundwater. The position was supported by the Trump Administration.

Evidence of ongoing environmental damage, the potential for “gutting the Clean Water Act,” and the risk of allowing a “Trump’s Supreme Court” to rule on the case ignited a local movement to settle the injection wells case before further damage could be done. In May 2019, efforts to pass a settlement resolution in the Maui County Council’s Governance, Ethics, and Transparency Committee deadlocked at a 4-4 vote.

GET Committee Chair Mike Molina, who previously voted against the settlement, reintroduced the resolution in September. “I don’t want to leave any stone unturned,” Molina said. “Let’s bring it out, no matter how tough it is. That’s what we got elected for. Let’s finally bring some closure to this.”

Council Chambers were lined with spectators as a remarkable 99 individuals signed up to provide public testimony overwhelmingly in support of settling the case with the environmental groups and preventing it from being heard at the Supreme Court. Molina was swayed, and the resolution to settle eventually passed a 5-4 vote of the County Council.

It was an exercise in futility.

Maui Mayor Michael Victorino, citing concerns with “uncertain regulatory requirements and staggering costs,” declared in October that he would not settle the case or withdraw it from the Court, despite the Council’s vote. An Oct. 3 memo to then-Council Chair Kelly King from Deputy Corporation Counsel Peter Hanano explained that provisions in the settlement required actions that the County Charter defined as within Council’s authority, the Mayor’s authority, or both the Council’s and Mayor’s authority. Therefore, he concluded, the Council and Mayor must agree on all terms in order to accept the settlement.

Efforts by the Council to retain a special counsel (requiring a vote of two-thirds of the Council) to resolve the “Charter Crisis” failed along the same lines as the settlement vote. A lawsuit filed by West Maui State Rep. Angus McKelvey, Joanne Johnson Winer, Archie Kalepa, Ke’eaumoku Kapu, and environmental group Maui Tomorrow sought a summary judgement from the Maui Circuit Court to interpret the Charter, and argued that the Council held the power to settle legislation whereas the Mayor’s power was merely administrative. The case was dismissed in March 2020.

By then, County of Maui v. Hawaii Wildlife Fund had already been argued in front of the Supreme Court. On April 23, 2020, the court issued its ruling and rejected Maui County’s argument.

“We hold that the [CWA] requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge,” wrote Justice Stephen Breyer in the Opinion of the Court. “That is,” explained Breyer, “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means. Time and distance are obviously important.”

The County’s definition of a “point source” of pollution would create a “large and obvious loophole” allowing a polluter to avoid NPDES permitting if they “simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea,” he wrote.

In its decision, the Court also vacated the Ninth Circuit Court’s decision and created a “functional equivalent” test for lower courts to apply when deciding whether the CWA permit applies.

“The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances,” Breyer wrote. “But there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.”

He illustrated: “Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”

The case was remanded back to the lower courts for the new test to be applied.

“This ruling is a step toward the clarity we have advocated for,” said Mayor Michael Victorino, even though the Court rejected his argument. Councilmember Kelly King, who as Council Chair warned of the negative consequences of letting a conservative Supreme Court rule on the Clean Water Act, said, “Had the Mayor signed the settlement agreement, the County could have saved millions in court and attorney fees; however, the decision is now an extra nationwide protection against water pollution.”

On July 7, 2020, the County Council GET Committee received an update from Earthjustice attorney David Henkin and County Corporation Counsel Richelle Thompson on the status of the lawsuit. A settlement offer from the County was rejected by plaintiffs Hawaii Wildlife Fund, Sierra Club – Maui Group, Surfrider Foundation, and West Maui Preservation Association, said Thompson. A counterproposal offered by the plaintiffs has not yet been accepted or rejected by the County.

In June, the Hawai’i District Court magistrate judge granted the County four to six months for further fact-finding and discovery to address guidelines for the new test created by the Supreme Court. A trial is presently set for July 2021.