In a Hawaii Sewage Case, Supreme Court Bolsters Protections Under Clean Water Act

 In this Sept. 24, 2014 file photo, a woman walks on the red sand beach at Kaihalulu Bay in Hana, Hawaii.

In this Sept. 24, 2014 file photo, a woman walks on the red sand beach at Kaihalulu Bay in Hana, Hawaii. AP Photo/Marco Garcia

 

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Environmental activists expect the ruling will force a Maui County wastewater treatment plant to obtain a permit regulating its sewage discharge into groundwater.

A county in Hawaii cannot sidestep federal clean water laws by pumping sewage discharge into the ground if it goes on to pollute the ocean, the U.S. Supreme Court ruled on Thursday.

The 6-3 ruling upholds long-held Environmental Protection Agency standards, finding that the Clean Water Act prohibits both the unpermitted discharge of pollution directly into “navigable waters,” as well as when “there is the functional equivalent of a direct discharge.”

Environmental groups, which celebrated the ruling as a significant victory, sued Maui County in 2012 over the operations of its Lahaina Wastewater Reclamation Facility. The facility treats about four million gallons of sewage a day by pumping partially treated wastewater underground via four wells, where it mixes with groundwater. Some of that groundwater ends up in the Pacific Ocean, where environmental groups said it has significantly damaged a once-pristine coral reef.

Under the Clean Water Act, it is unlawful to discharge any pollutant “from a point source into navigable waters” without first obtaining a permit from the EPA.

Because some of the wastewater from the treatment facility was ending up in the Pacific Ocean, the Hawai’i Wildlife Fund and other environmental groups argued that the facility should be required to obtain a permit and meet the required environmental standards.

The ruling, which sends the case back to the 9th U.S. Circuit Court of Appeals, does not mandate that Maui would have to obtain a permit to continue its wastewater treatment operations. Rather it sets up a series of factors that agencies should consider in determining whether a permit is required, said Maui Mayor Michael Victorino.

“We look forward to further clarity from our local regulators and working collaboratively to protect our waters,” he said.

Maui had previously argued that it did not need a permit because the pollutants did not come “from” the treatment facility—emphasizing that they first travelled through groundwater. In siding with Maui, the Trump administration reversed the EPA’s long standing position.

Environmental activists, however, believe that the data presented in the case on water pollution from the treatment facility will result in a requirement to obtain a permit.   

Permitting requirements could include reducing the amount of fresh water pumped through the wells or figuring out another way to dispose of some of the nutrients in the water that damage ocean reefs, said David Henkin, an attorney with the environmental activist group Earthjustice who argued the case.

Hannah Bernard, executive director of the Hawai’i Wildlife Fund, called the ruling “one of the largest wins” for clean water since the Clean Water Act was passed in 1972.

“It means that what happens is monitored, it’s mitigated, it’s managed,” Bernard said. “They can’t just stick a pipe into the ground and pump their pollution without getting a permit that manages what they do.”

The ruling, written by Justice William Breyer, remands the case back to the 9th Circuit Court of Appeals. Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined Breyer in the majority opinion. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

Breyer’s ruling notes that the appellate court’s interpretation of the EPA’s permitting authority was too broad.

“Virtually all water, polluted or not, eventually makes its way to navigable water. This is just as true for groundwater,” Breyer wrote. He said the vacated Ninth Circuit’s ruling “may well allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms.”

“Our view is that Congress did not intend the point source-permitting requirement to provide EPA with such broad authority,” he wrote.

The EPA is reviewing the decision as well as the court’s request that it provide further guidance, an agency spokeswoman said in a statement.

“Moving forward, we will respect the Court’s finding that ‘as to groundwater pollution and non-point source pollution, Congress intended to leave substantial responsibility and autonomy to the States,’” the EPA said. “In holding that the Clean Water Act requires a permit for the addition of pollutants to groundwater if it is the ‘functional equivalent’ of a direct discharge, the Court unfortunately leaves some uncertainty for the public, including private property owners.”

OTHER STORIES on Route Fifty:

Andrea Noble is a staff correspondent with Route Fifty.

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