The Kaheawa II Wind Farm and the Fate of the Hawaiian Hoary Bat

Introduction

Kaheawa II is the lower string of wind turbines on the mountain above Maʻalaea. It became operational in July 2012 and provides about 21 MW of power to the grid. A Habitat Conservation Plan (HCP) committed the wind farm to not “taking” (kill, maim, harass) more than 11 Hawaiian Hoary Bats (ʻOpeʻapeʻa) within a 20-year contract period. However, that number has been estimated to already have been taken in seven years; the company has provided a revised Environmental Impact Statement (EIS) and HCP. The new documents propose increasing the take of bats from 11 to 38 adults during the contract period. It also proposes increasing the allowed take of Nēnē from 30 to 44 adults. Both the ʻOpeʻapeʻa and the Nēnē are protected as endangered species.

We still lack information on the total number of bats on Maui, their distribution and their population trend. This is partially due to insufficient research, partly to ineffective detection technology. The most commonly used technology for bat detection is acoustic detection of their echo-location sounds. However, that only works when the bat is echo-locating and the microphone is sufficiently oriented towards the bat. Comparison to thermal imaging has found that only 8% of bats present are detected. Further, there is no way to tell if an acoustic detector is registering a single bat making multiple echo-location sounds or multiple bats.  It is important to invest in increasing our knowledge of the bat population on Maui and what the effects of mitigation efforts on that population have been. For this reason, we support research funding as a partial mitigation. Without knowing what the bat population and trend is, it is difficult to say if the taking of an additional 27 adult bats at Kaheawa II (beyond the current HCP limit of 11) through the current 20-year period ending in 2032 is an existential threat to the endangered species on Maui or to a subgroup of it. The death of an adult bat may lead to the death of its juvenile offspring as well, and it may have ripple effects on genetic diversity and resilience.

Quantifying the Loss

The Kaheawa II plan “includes searches of roads and graded pads that occur within a 70-meter (m) radius from each turbine every 7 days. Searches are primarily conducted by a canine search team, with visual searchers conducting about 14% of searches per year.

That means that far from all casualties are detected. Scavengers may remove bats after an event but before the weekly search. A bat may be slung beyond 70 meters. A statistical model attempts to compensate for the missed casualties by extrapolating from the number found. Given how far off the original estimates of bat fatalities were, how inefficient the bat detection technology is and how limited our knowledge is of island-wide and local bat populations, Kaheawa II must increase the confidence in its take numbers.

Mitigation

Besides research, the proposed external mitigation is to increase the amount of restored forest habitat thought to be preferred by the Hawaiian Hoary Bat. Preference is to be given to areas otherwise threatened with development or other changes that would make them less hospitable to the bat. A selected area must be known to already host bats (through acoustical or other detection methods). Bats have been detected all over the island. On Hawaiʻi Island they have been detected from the shoreline to 11,800 feet elevation on Mauna Loa. They have a varied night-time foraging area and range, while the areas where they roost during the day and where they pup are thought to be much more limited, typically to restored/established forests. Preserving their preferred roosting habitats is therefor more important from the standpoint of resiliency of the species than managing their foraging range.

There is no data on the effects of habitat restoration on the bat population. As a matter of fact, it was found at Kahikinui that bat detection frequency decreased after fencing for ungulate (deer, pigs, goats) removal, likely due to less insects which had been attracted by ungulate dung. At this point, population compensation through reforestation must be considered theoretical. This is very different from the situation with Nēnē, where fledglings can be counted in protected areas.

The only operational mitigation known to reduce fatalities is to not run the wind turbines below a cutoff wind speed threshold from sunset to sunrise, or not run them at all during that time – Low Wind Speed Curtailment (LWSC). The bats are able to detect and avoid the turbine blades if they are spinning rapidly. Data from mainland studies indicates that raising the cutoff threshold from 5.0 meters/second wind speed (as proposed by Auwahi and by Kaheawa II for part of the year) to 6.9 meters/second is effective in this regard, while raising it additionally has little or no effect.

The Auwahi wind farm HCP says that the impact of LWSC regimes from studies on the mainland suggest a reduction in bat take ranging from 10 to 92 percent through increasing the cutoff speed, but that there is little or no benefit above 6.9 meters/second:

Bats are detected year round at the wind farms but more often August-October. The following chart is from the Kaheawa II HCP. The highest rate was in September 2015 when bat activity was detected on 58% of the nights.

Comments to the Kaheawa II EIS

1. Multiple non-contiguous habitat restoration areas

The EIS says “Wildfires can cause direct loss of adult bats and dependent young that are unable to escape a forest fire.” A catastrophic fire in an area heavily used for roosting and pupping could dramatically affect the total bat population and the options for species recovery. Sierra Club would like to see appropriate habitat restoration for the ʻOpeʻapeʻa in at least three non-contiguous areas to reduce that risk.

2. Increase the confidence in the take numbers

If some bat fatalities are not detected, we may be underestimating the actual take at any given wind farm. Sierra Club supports the recommendation of the wildlife agencies to expand the buffer zone searched for carcasses by 20%.

Similarly, we propose increasing the frequency of searches for carcasses to once every two days (instead of once/week) for at least a year to see if the detection rate changes.

3. Reduce the fatalities by raising the wind speed cutoff

Based on the mainland studies referenced by the Auwahi revised HCP, Sierra Club proposes a 6.9 meters/second cutoff for all wind farms from 30 minutes before sunset to 30 minutes after sunset year round. The Kaheawa II HCP proposes a nightly cutoff of 5.5 meters/second from February 15 through December 15 and 5.0 the rest of the year. Curtailment would be extended from December 15 to February 15 if fatalities occur outside the proposed curtailment period. It claims that “There are no studies to date that test whether mortality rates decrease significantly when LWSC is raised from 5.5 m/s to 6.5 m/s.“, despite the studies reported in the Auwahi HCP. However, it also says that “increasing curtailment from 5.5 m/s to 6.5 m/s would reduce renewable energy generation from the Project by approximately 328 megawatt hours (MWh) annually (or 0.47% of 70,000 MWh assumed to be produced annually)“. That is a very small price to pay for reducing or possibly eliminating the bat fatalities.

4. Monitor the effects of operational mitigation and increase curtailment if necessary

The proposed increase in take is largely a projection of continued fatalities at the level we have seen the past seven years, which is much higher than originally anticipated. If this already increased take is exceeded, the HCP says:

Once the permittee and/or wildlife agencies have determined the observed take is exceeding the permit year trigger, the appropriate minimization technique determined in consultation with the wildlife agencies would be implemented immediately if minimization includes just a change in wind turbines operation.
Minimization will include any or any combination of the following:
1. a higher level of Low Wind Speed Curtailment if additional research demonstrates a higher
likelihood of success than does current research,
2. periods of complete cessation of operations during the night (such as during the first 2 hours
of the night or during annual periods of highest activity, for example),
3. implementing deterrents that have been proven to reduce fatality rates on at least 50% of the
wind turbines (with the highest bat detection and/or fatality rates),
4. implementing “early-warning” systems on at least 50% of the wind turbines (with the highest
bat detection and/or fatality rates) that detect the presence of bats and shutting down at least
50% of the wind turbines (with the highest bat detection and/or fatality rates) for at least 15
minutes (assuming no additional bat activity is detected),
5. or a not yet identified option.

That is unsatisfactory – requiring that additional research show higher success rates for low wind speed curtailment than current research; they should go with the current research if there is no better research at that time. The rest is speculative and non-committal.

There are no proven bat deterrent technologies yet, although a wind farm on Oʻahu will use a new technology for evaluation as a pilot project.

Habitat restoration is valuable and should be part of the plan, but it cannot (at this time) be demonstrated to compensate for a single bat lost to the wind turbines, much less 38 of them.

Sierra Club feels that the company must commit to curtailing operation to the extent required to reduce the observed take rate so as to not risk jeopardizing the survival of this unique Hawaiian animal, to the point of full night-time curtailment if necessary. New technology such as bat deterrents may help, but the calculated total take should not go to 38 before taking steps that are known to save bat lives. If the tier 1 and 2 mitigation steps do not reduce the observed rate by 50% from the average of the last three years (the basis for the proposed new rates), additional steps should be taken to reduce the take (increase the cutoff rate, not run the turbines at night at all).

 

 

Lahaina Injection Wells Frequently Asked Questions

What You Always Wanted To Know About The Lahaina Wastewater Injection Wells Case

1. The County Releases Wastewater Into The Ocean?

After pressure from the community and from the EPA, the Lahaina Wastewater Reclamation Facility (LWRF) disinfects the wastewater with ultra-violet light to kill bacteria that are harmful to people. However, the resulting effluent is high in nitrogen, phosphorous and other chemicals that are harmful to the coral reef and to ocean life.

2. The Treated Wastewater Doesn’t Stay In The Injection Wells?

The treated wastewater is mostly dumped into large, unlined basins called “injection wells”. The EPA traced the path of the wastewater from the injection wells and proved definitively in a study published in 2013 that about half the effluent finds its way into the ocean at Kahekili Beach Park.

3. How Much Wastewater Are We Talking About?

While some treated wastewater is used for irrigation, 3-5 million gallons/day are dumped into the injection wells at the LWRF.

4. How Bad Can It Be To Release Treated Wastewater Into The Ocean?

A US Geological Survey study of the effects of the wastewater release on the coral reef at Kahekili Beach Park, published in 2017, reported that “sustained, nutrient rich, lower pH submarine groundwater discharging onto nearshore coral reefs off west Maui lowers the pH of seawater and exposes corals to nitrate concentrations 50 times higher than ambient. Rates of coral calcification are substantially decreased, and rates of bioerosion are orders of magnitude higher than those observed in coral cores collected in the Pacific under equivalent low pH conditions”.

5. Seriously, Can You See The Difference In The Coral?

From 1994 to 2006, coral cover at the Kahekili Marine Reserve declined by 40%.

6. Fixing the Problem Must Be a Top Priority for the County?

Community and environmental organizations urged the County to address the problems for many years but the discussions did not lead to tangible changes or commitments. In 2012, the community and environmental organizations filed suit against the County under the Clean Water Act (CWA), which requires that a special permit – NPDES – be acquired if pollutants are to be released into the ocean. Both the Hawai‘i-based district court and the Ninth Circuit appeals court have ruled in favor of clean water, ruling that the County cannot freely pollute the ocean via injection wells and are required to get a permit under the Clean Water Act. Yet Maui County has spent $4.3 million in taxpayer money to fight the law, money that could have been used for water reuse to keep the contaminated water off of West Maui’s reefs.

7. Why Are the Trump Administration And The Major US Polluters Supporting The County On This Issue?

Having lost in all court hearings so far, the County is taking the case to the Supreme Court rather than settling the affair and addressing the problem with the threat to the reefs and ocean life. The Trump EPA has been aggessively weakening or removing dozens of long-standing protections of our air, land and waters. Allowing the fossil fuel companies to dump toxic waste into the ground near rivers, lakes or oceans would save them money but harm the health of people, plants and animals who depend on safe and clean water.

8. If The County Gets An NPDES Permit, Will I Have To Get One Too?

The County claims that if it has to get a permit to release 3-5 million gallons/day of treated wastewater into the ocean, then 12,000 cess pool owners on Maui will also have to get an NPDES permit. However, individual properties are not regulated through NPDES permits, which are intended for industrial scale polluters like coal-fired power plants. The Hawaii Department of Health has also explicitly clarified that they will not require NPDES permits of cess pool owners.

9. What Are The Plaintiffs Asking Of The County?

The Sierra Club Maui Group, Surfrider Foundation, Hawaiʻi Wildlife Fund and West Maui Preservation Association – the organizations that sued the County – want the County to settle the case as agreed on in 2015, putting at least $2.5M towards diverting and reusing the wastewater and completing its application for an NPDES.

10. What Are The Downsides To Settling The Lahaina Injection Wells Case?

There are no downsides, only benefits, to settling the case and putting the money into solving the problem instead through better processing of the wastewater and then reusing it for irrigation in West Maui. The reefs win, the residents and visitors who enjoy the waters of West Maui win, the County wins in reputation as a leader in ocean protection rather than a destroyer of reefs.

Forestry and Wildlife Service lets down the Hawaiian Hoary Bats

Comments to the Final PEIS for new Habitat Conservation Plans for four Hawaii wind farms

The background to the proposed changes to the Habitat Conservation Plans (HCP) for three Hawaii wind farms and the requirement for an initial HCP for one that never had one is that the take (harassment, damage, kill) of Hawaiian Hoary Bats has been much higher than anticipated since the projects launched. For some of the wind farms, there is also a concern of unexpectedly high take of Hawaiian Nēnē and Petrels. Sierra Club appreciates the significant contribution of the wind farms to replacing fossil fuel energy production but feels every effort must be made to save what remains of our endangered Hawaiian animal species, including our only native land mammal.

The Final Programmatic Environmental Impact Statement (PEIS) covers HCP modifications to three wind farms, whereof two on Maui, and the addition of an HCP to a fourth wind farm. We focused on the proposals for the two Maui wind farms – Kaheawa II above Maʻalaea and Auwahi – and on the consequences for the Hawaiian Hoary Bat there.

We still lack information on the total number of bats on Maui, their distribution and their population trend. This is partially due to insufficient research, partly to ineffective detection technology. It is important to invest in increasing our knowledge of the bat population on Maui and what the effects of mitigation efforts on that population have been. For this reason, we support research funding as a partial mitigation. Without knowing what the bat population and trend is, it is difficult to say if the taking of an additional 119 bats at Auwahi (beyond the current HCP limit of 21) through the current 25-year period ending in 2037 is an existential threat to the endangered species on Maui.

Besides research, the proposed external mitigation is to increase the amount of restored forest habitat thought to be preferred by the Hawaiian Hoary Bat.

Our comments to the Draft PEIS are included in Appendix K of the Final PEIS. All of our requests for additional bat protection were rejected, as were almost all the requests from all other commenters.

1. Sierra Club feels that the risk of a catastrophic decline in bat population due to a major wildfire in a restored habit should be mitigated by providing at least three non-contiguous managed roosting areas and three non-contiguous foraging areas. The FWS responds that it is up to the HCP applications (the wind farms) to decide whether or not to provide multiple independent habitats and to ensure that “identified success criteria” are met even if there is a fire. If the bat population is mostly exterminated in a major wildfire, the bat take at the wind farms will almost certainly fall and be under the limits of the PEIS. Is that a success?

2. If some bat fatalities are not detected, we may be underestimating the actual take at any given wind farm. Sierra Club supports the recommendation of the wildlife agencies to expand the buffer zone searched for carcasses by 20%. The FWS responds that the requirement should only apply to future wind farms.

3. Similarly, we proposed increasing the frequency of searches for carcasses to once every two days (instead of once/week) for at least a year to see if the detection rate changes. Dead bats may be removed by predators before being counted. The FWS responds that “reducing the uncertainty is based on a specific sites characteristics”.

4. Hawaiian Hoary Bats roost during the day and forage at night. The only operational mitigation known to reduce fatalities is to not run the wind turbines below a cutoff wind speed threshold from sunset to sunrise, or not run them at all during that time. The bats are able to detect and avoid the turbine blades if they are spinning rapidly. Data from mainland studies indicates that raising the cutoff threshold from 5.0 meters/second wind speed (as proposed by Auwahi; Kaheawa II is already at 5.5 meters/second) to 6.9 meters/second is effective in this regard, while raising it additionally has little or no effect. Sierra Club proposed a 6.9 meters/second cutoff for all wind farms from 30 minutes before sunset to 30 minutes after sunset year round. The FWS responds that “It has not been possible to confidently calculate the reductions in Hawaiian hoary bat fatalities in Hawaiʻi that have resulted from the local implementation of low wind speed curtailment… The perceived reductions in bat fatalities from the implementation of low wind speed curtailment have shown promise at some projects in Hawaiʻi, though evidence is largely anecdotal because of the lack of a simultaneous control.” So why then does the FWS reject our proposal, when this is the only known way to reduce fatalities?

5. The rate of fatalities has been much higher than anticipated. Minor changes in wind speed cutoff are proposed by the wind farms to reduce them. Sierra Club feels that the results of the changes in wind speed cutoff should be monitored closely. If they do not reduce the observed rate by 50% from the average of the last three years (the basis for the proposed new rates), additional steps should be taken to reduce the take (increase the cutoff rate, not run the turbines at night at all). While we strongly support the restoration of forest habitat for the bats, there is no knowledge whatsoever of the quantitative impact it has had or will have on bat survival, while the take at the wind farms is certain to occur and can be estimated with 80% probability. The FWS says no action can be recommended if past take rates are surpassed, only if the new ones are, and refers to the individual HCPs of the wind farms for what is to happen then. If the new, higher take rate is surpassed, Auwahi proposes to

1) raise the cutoff threshold to 6.9 meters/second the first six hours of the night from August through October
2) redistribute curtailment nights between their two banks of turbines
3) “implement an acoustic deterrent system or an alternative minimization technology (provided they are commercially available, demonstrated to be effective in Hawai’i, and determined not to negatively impact other wildlife)”.

Kaheawa II says

“Once the permittee and/or wildlife agencies have determined the observed take is exceeding the permit year trigger, the appropriate minimization technique determined in consultation with the wildlife agencies would be implemented immediately if minimization includes just a change in wind turbines operation.
Minimization will include any or any combination of the following:
1. a higher level of Low Wind Speed Curtailment if additional research demonstrates a higher
likelihood of success than does current research,
2. periods of complete cessation of operations during the night (such as during the first 2 hours
of the night or during annual periods of highest activity, for example),
3. implementing deterrents that have been proven to reduce fatality rates on at least 50% of the
wind turbines (with the highest bat detection and/or fatality rates),
4. implementing “early-warning” systems on at least 50% of the wind turbines (with the highest
bat detection and/or fatality rates) that detect the presence of bats and shutting down at least
50% of the wind turbines (with the highest bat detection and/or fatality rates) for at least 15
minutes (assuming no additional bat activity is detected),
5. or a not yet identified option.”

That is unsatisfactory – requiring that additional research show higher success rates for low wind speed curtailment than current research; they should go with the current research if there is no better research at that time. The rest is speculative and non-committal.

There are no proven bat deterrent technologies yet, although a wind farm on Oʻahu will use a new technology for evaluation as a pilot project.

Sierra Club feels that applying fines to the wind farm companies if they exceed their take is not an acceptable outcome. The companies must commit to curtailing operation to the extent required to reduce the observed take rate so as to not risk jeopardizing the survival of this unique Hawaiian animal.

In summary, the FWS has not defined a course to definitively reducing the take of Hawaiian Hoary Bats at the wind farms or even to improving the accuracy of the estimation of the take. While reforestation for bat habitats is a good thing to do, we don’t know yet what the effects of that work will be on the bat population, while we do know that bats are being killed by the wind turbines. Wind energy production is renewable and a valuable contributor to Maui’s electricity needs but optimal output has to be weighed against the consequences to endangered native species. Rather than codifying the observed increase in take compared to the current HCPs, steps should be taken to reduce the actual take.

 

Former EPA officials back greens in Clean Water Act case

Maui County, Hawaii, wastewater treatment facilities at issue in Supreme Court litigation. Warren Gretz/NREL

Ellen M. Gilmer, E&E News reporter Greenwire: Monday, July 22, 2019

States, tribes, scientists and former EPA leaders lent their support last week to environmentalists engaged in a high-stakes Supreme Court battle over federal water protections.

In a series of amicus briefs submitted Friday, the supporters argued that the Clean Water Act’s permitting program applies to pollution that takes an indirect route — through groundwater, for example — to federally regulated surface waters.

The case, County of Maui v. Hawai’i Wildlife Fund, is on the high court’s docket for November. The county says it should not need Clean Water Act permits for treated wastewater that travels from disposal wells through groundwater and into the Pacific Ocean.

Local green groups represented by Earthjustice went to court over the lack of permits years ago and eventually won at the 9th U.S. Circuit Court of Appeals.

The Supreme Court now has the chance to review that decision and issue a final ruling on the proper scope of the cornerstone environmental law.

The Trump administration is backing Maui in the case. In a reversal of its previous position, EPA announced earlier this year that it does not interpret the Clean Water Act as requiring permits for indirect discharges of pollution.

“Accepting the United States’ recent reversal in position would effect a significant rollback in regulatory enforcement of the CWA that has been in place for decades,” former EPA Administrators Gina McCarthy, Carol Browner and Bill Reilly told the high court.

They served in the Obama, Clinton and George H.W. Bush administrations, respectively. Other former EPA officials, including deputy administrators and regional heads, also submitted a brief detailing the agency’s 30 years of practice interpreting the law to include pollution discharges through groundwater.

“It has repeatedly expressed this interpretation in regulatory preambles, permit writers’ manuals, and other guidance documents,” they told the justices. “It has regulated such discharges in both general and individual [Clean Water Act] permits. It has brought enforcement actions against entities that make such discharges without a permit.”

The disagreement stems from the text of the Clean Water Act. The statute requires permits for pollution that travels from a discrete point source to a federally regulated wetland or waterway.

In briefs to the Supreme Court, lawyers have disputed whether “to” means a pollutant must go directly from a point source into the waterway to trigger the provision or whether it can move through groundwater or some other intermediary and still require permits.

States, cities, Republican lawmakers and others turned out in support of the narrower interpretation in briefs to the court in May. They said requiring permits for pollution that moves through groundwater would encroach on states’ regulatory turf (Greenwire, May 17).

Earthjustice lawyer David Henkin last week called that approach “Orwellian” (Greenwire, July 15).

In a recent Law.com post, Roy Englert Jr., who authored an amicus brief on behalf of Trout Unlimited, called the environmental groups’ position “expressly textualist,” something that should appeal to the Supreme Court’s conservative justices.

Others filing briefs on the environmentalists’ side included a slew of states, law professors, some municipal governments and other green groups.

“The bottom line is that the Clean Water Act’s protections should apply regardless of whether pollutants are discharged directly or indirectly into our nation’s waters,” California Attorney General Xavier Becerra (D) said in a statement.

Even craft beer brewers got involved in the debate, saying Maui’s preferred reading of the Clean Water Act would make the statute “trivially easy to evade.”

“Put differently,” a coalition including Allagash Brewing Co., Long Trail Brewing Co. and others wrote, “on the County and its amici’s theory of the Clean Water Act, a factory whose pipe sends pollutants flowing into a river can avoid regulation by moving its pipe twenty feet back and spilling pollutants into a gravel pit, such that groundwater carries precisely the same pollutants into precisely the same river.”

Oral arguments are set for Nov. 6.

 

See the polluters Maui County has aligned themselves with

On July 19, 11 different groups filed friends of the court briefs in the Lahaina injection wells Supreme Court case. These groups include former EPA Administrators, 13 states, a Native American tribe, craft brewers, and clean water advocates.

On the other side, Maui County has aligned themselves with Republican states and polluters across the country. The dirtiest industries like oil, gas, pipelines, mining, and factory farms are supporting Maui in hopes that they will be able to evade water protections by pumping their pollution into pipes in the ground.

Read Earthjustice’s press release here and take action at bit.ly/lahaina.

Enviros Urge Justices To Uphold 9th Circ. Groundwater Ruling

By Juan Carlos Rodriguez

Law360 (July 12, 2019, 10:52 PM EDT) — Green groups on Friday urged the U.S. Supreme Courtto uphold the Ninth Circuit’s holding that Clean Water Act permits may be required for pollution sources that discharge contaminants via groundwater.

The Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation and West Maui Preservation Association said Congress clearly intended the act to cover unpermitted pollution discharges that “actually and foreseeably” reach navigable surface waters. They said Maui County, which is challenging the Ninth Circuit’s ruling, relies on a misguided reading of the act to support its argument that permits are not required for such discharges.

The U.S. Environmental Protection Agency, which has authority to approve the National Pollutant Discharge Elimination System permits at issue, agreed in an amicus brief supporting Maui County that the Ninth Circuit decision should be overturned.

But the environmental groups said Friday, “Either the county’s or EPA’s view … would open a substantial loophole in the CWA, allowing polluters to achieve indirectly what they cannot do directly: discharge pollutants from point sources into navigable waters without a permit.”

The groups sued Maui County in 2012, accusing it of violating the act by not obtaining a NPDES permit for sewage wastewater injection wells that discharged pollution into the Pacific Ocean via groundwater.

In their Supreme Court brief, the groups cited the CWA’s provision that prohibits “any addition of any pollutant to navigable waters from any point source,” and said the county’s wells are point sources, the waste the wells discharge are a pollutant, and the Pacific Ocean is a navigable water.

“The introduction of the effluent to the Pacific is an ‘addition’ of pollutants ‘to’ those waters. And that addition comes ‘from’ the county’s point-source wells: The wells are both the pollutants’ point of departure and a factual cause of their addition to navigable waters,” the brief said.

And the groups said the Clean Water Act does not just cover pollution that enters navigable waters directly from point sources, “without any intermediate means of transmission.”

They disputed the county’s assertion that the CWA only applies when a point source pollutes “directly” to navigable waters and the EPA’s argument that would exclude discharges that occur through groundwater.

“The County of Maui’s attorneys have done a wonderfully Orwellian job of professing support for the Clean Water Act while simultaneously trying to blow a hole in the law that protects our nation’s rivers, lakes and oceans,” Earthjustice attorney David Henkin, who represents the green groups, said Friday.

The Ninth Circuit in February 2018 sided with environmental groups that argued Maui violated the act by not obtaining a federal NPDES permit for the sewage wastewater injection wells.

Maui County argued in its brief that the CWA clearly gives states sole permitting authority over those sources, and asserted that if the circuit court’s ruling is allowed to stand, it would result in a vast expansion of federal power contrary to the act’s intent.

According to the county, the high court should look to two Sixth Circuit rulings, also handed down last year, that split from its sister circuits’ findings and held that a point source permit is not required where pollution reaches navigable waters via a nonpoint source.

There has been some discussion among newer Maui County Council members about whether to settle the lawsuit, which would take it out of the justices’ hands, but there’s been no official action on that yet.

A bill was introduced that would give the council authority to settle the suit, as that power currently lies with the mayor, but it has not emerged from the Governance, Ethics and Transparency Committee, and Maui County Council Supervising Legislative Attorney David Raatz said Friday it’s unclear if and when the bill might proceed.

The Maui mayor’s office and the U.S. Department of Justice did not respond to requests for comment Friday.

The high court in February agreed to hear the case. Oral arguments are scheduled for Nov. 6.

The Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation and West Maui Preservation Association are represented by David L. Henkin and Janette K. Brimmer of Earthjustice, Scott L. Nelson of Public Citizen Litigation Group and Amanda C. Leiter of American University Washington College of Law.

Maui County is represented by Elbert Lin, Michael R. Shebelskie, Colleen P. Doyle and Diana P. Martin of Hunton Andrews Kurth LLP and county attorneys Moana M. Lutey and Richelle M. Thomson.

The federal government is represented by Noel J. Francisco, Malcolm L. Stewart, Judy B. Harvey, Matthew R. Oakes and Frederick H. Turner of the Solicitor General’s Office, Eric Grant, Allon Kedem and David S. Gualtieri of the DOJ’s Environment and Natural Resources Division and Matthew Z. Leopold, David Fotouhi and Lauren T. Maher of the EPA Office of General Counsel.

The case is County of Maui v. Hawaii Wildlife Fund et al., case number 18-260, in the U.S. Supreme Court.

–Editing by Nicole Bleier.