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.

Stop pollution of Maui coral reefs

Honolulu Star-Advertiser, 2/27/2019 

The Clean Water Act (CWA), which took shape during the early 1970s, bans the dumping of pollutants directly into surface waters, ranging from wetlands and rivers to oceans. Whether the federal law’s prohibition also should apply to indirect dumping that has the same effect is a matter expected to go before the nation’s highest court later this year. 

At the center of the debate is Maui’s Lahaina Wastewater Reclamation Facility, which injects a daily average of at least 3 million gallons of treated sewage into groundwater that flows toward the ocean. 

Last March, the 9th U.S. Circuit Court of Appeals ruled that Maui County has been violating the CWA since the facility’s operations started in the early 1980s. Maui County appealed to the Supreme Court; if it wins, the impacts for water pollution rules nationwide could be huge. 

That would be an unfortunate outcome: In Maui, the scientific evidence demonstrates that treated sewage dumped into injection wells is seeping into the ocean, killing coral and triggering algae blooms. 

In 2011, amid growing concerns about proliferating algae blooms that smother reefs and other degradation, University of Hawaii scientists initiated a tracer-dye study that conclusively linked treatment- plant discharge with tainted near-shore waters. And last year, U.S. Geological Survey research found that discharge from injection wells — positioned about a half-mile from the shoreline — has been drastically undermining the area for years. 

The 9th Circuit’s opinion against Maui rightly concluded: “At bottom, this case is about preventing the county from doing indirectly that which it cannot do directly.” Under federal law, a National Pollutant Discharge Elimination System (NPDES) permit is needed to dispose of the wastewater in ocean waters. 

In 2018, another appellate court interpreted the law in the opposite way. In a Kentucky case, pollutants from coal ash retention ponds seeped into groundwater that fed waterways. The 6th Circuit Court ruled that only pollutants added directly to navigable bodies of water are regulated under the law. 

The split in opinion helped pave the way for the U.S. Supreme Court to take up the Maui case, in which the county asserts that because it’s not directly pouring pollutants into near-shore waters, no NPDES permit is needed. 

The county contends that from its perspective, West Maui’s coral is generally in healthy condition, with sites including Kahekili — downstream from the wastewater facility — tagged as “pristine.” The county maintains that groundwater regulation should be handled as a “home-rule” issue as pollution- related challenges vary from place to place. 

The U.S. Environmental Protection Agency’s acting administrator, Andrew Wheeler, seems to support this take. And it’s a given that if the Supreme Court reverses the 9th Circuit’s ruling, supporters of President Donald Trump’s efforts to roll back the Obama era’s stepped-up environmental regulation likely will cheer a perceived correction of federal overreach. 

But in this case, amid growing concerns tied to climate change and ocean acidification, weaker federal law would open a door to potentially accelerating pollutionrelated troubles here and elsewhere. That would be a step backward for environmental stewardship, but it’s a possibility due to the current makeup of the high court. 

Earthjustice, which is representing Maui community groups — Hawai‘i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation — in the ongoing legal debate, has rightly pointed out that we could see industries quickly assuming effective free rein to discharge pollutants indirectly into the nation’s waterways. 

It’s disappointing that Maui is continuing to side-step the pollution problem. If politics prevails over science in a ruling from the Supreme Court, heightened vigilance in safeguarding Hawaii’s near-shore ecosystems from landbased sources of pollution will fall squarely on county and state governments. 

Help Pass a State-Wide Ban on Oxybenzone!

Lahaina Injection Wells Lawsuit: Enough Already! Just Fix the Problem

The Honolulu Star-Advertiser agrees – Enough already, Maui County! Stop trying to appeal the lawsuit and start fixing the problem!

 

Call/Email the Mayor & Maui Council Chair and say “ENOUGH ALREADY! Stop wasting the public’s money to defend illegal injection wells in West Maui. Spend the money instead on fixing the problem!”

Mayor Alan Arakawa
270-7855
Mayors.Office@co.maui.hi.us

Council Chair Mike White
270-5507
mike.white@mauicounty.us

 

Background: $3 million down the toilet – Enough Already!

The County paid a main land law firm $3 million to defend its actions of injecting treated wastewater into the ocean without proper state oversight. The County was joined in its fight by the Association of American Railroads, the American Iron and Steel Institute, the American Petroleum Institute, the National Mining Association and the Fertilizer Institute.

The County lost the original court case but kept filing appeals – in total they’ve spent $3 million and lost all 4 times in court. Sierra Club Maui Group was one of 4 plaintiffs in the case, and just this month the County lost ANOTHER appeal.

The County COULD have used that money to build the infrastructure we need to support water recycling. Instead, now they’re talking about filing MORE appeals. Will this be another $3 million of public money down the toilet?

Call or email the mayor and council chair and say: Enough Already – Stop spending the public’s money on lawsuits and just fix the problem!

Campaign and meme from Tamara Paltin and http://www.savewestmaui.com
Mahalo!

Sand Mining Moratorium Passed! But the Fight Continues…

After more than seven months of discussion, on January 5, 2018, the Maui County Council passed the Sand Mining Moratorium into law, the final vote 7 – 2 (Yuki Lei Sugimura and Riki Hokama were the no votes).

But the bill provides exemption from the moratorium to anyone with an already existing permit. In Nov. 2017, the Dept. of Public Works RENEWED Maui Lani Partners’ permit for work in their Phase 9 site – even though a judge issued a preliminary injunction against all work in that area, stating “…disturbance of burial sites will produce substantial, irreparable harm.”

Maui Lani Partners has been stopped from working by a Maui court of law but our own county government rubber stamped their request to continue – without talking to the State Historic Presentation Division either. This is just one glaring incident that shows how our permit system is broken and needs to be rectified immediately. Because of the Dept. of Public Work’s actions, Maui Lani’s Phase 9 site will be exempt from the sand mining moratorium – unless the county rescinds it.

On Friday the 5th, before the council voted, Mālama Kakanilua and Sierra Club Maui held a protest outside the County building to call on the County to rescind their renewal of Maui Lani’s permit.

News Coverage

Hawai’i News Now Reporter Mahealani Richardson did a video story on the passage of the moratorium, and the Maui News and Maui Now published articles:

http://www.hawaiinewsnow.com/story/37204692/maui-council-passes-6-month-sand-mining-moratorium

http://www.mauinews.com/news/local-news/2018/01/council-oks-sand-mining-moratorium/

http://mauinow.com/2018/01/19/mayor-signs-maui-sand-mining-bill/

 

Photos from the Protest

 

Breaking News: Sierra Club Maui & Allies File Lawsuit to Protect Makena

Breaking News!

Sierra Club Maui & Allies File Lawsuit to Protect Makena

Sierra Club Maui Group, Maui Tomorrow Foundation, and Ho’oponopono O Makena filed a lawsuit on May 2, 2017 asking the Maui Environmental Court to halt the approval of Makena Resort’s Environmental Assessment. We are extremely worried about the environmental and cultural impacts that Makena Resort’s current proposal would have on the area and are doing everything we can to ensure a proper review be completed in the form of an Environmental Impact Statement.

Through our lawsuit, we are seeking to invalidate the Maui Planning Commission’s acceptance of the Final Environmental Assessment (FEA) and issuance of a Finding of No Significant Impact for development of the proposed 47-acre M?kena Resort M-5/M-6/S-7/B-2 project, a 158-unit gated luxury community on the mauka side of Makena-Keone’o’io Road, above Makena Landing. The FEA was approved by a 5-3 vote, with several members of the Commission expressing strong reservations regarding unresolved impacts. Read our full press release here.

 

Please support Sierra Club Maui fight the good fight by making a tax-deductible donation to support our legal fees.

You can write a check to “Sierra Club Foundation” with “Maui Group” in the memo line and mail it to: P.O. Box 791180, Pa’ia, HI, 96779 or email us to find out how to donate by credit card.

We also need non-tax deductible donations that enable Sierra Club Maui Group to do the important political work that keeps Maui?s environment protected. Click here to donate to our general operating fund.

 

Mahalo for your support, and stay tuned for updates!

Call to stop HB2501 – water theft bill

ACTION ALERT! CALL YOUR SENATOR TO STOP HB 2501!

Healoha Carmichael, a Native Hawaiian gatherer, stands in Honomanu Stream in East Maui near her home. The stream is completely dry due to Alexander and Baldwin’s water diversions. Carmichael and her ‘ohana face significant hardship in gathering food to feed their ‘ohana because of the diversions.

Tell Your Senator To Ask Senator Jill Tokuda Not To Hear HB 2501!

HERE’S WHY:

HB 2501 DOES NOT ADDRESS THE INJUSTICE IN EAST MAUI

Thank you for supporting the restoration of East Maui streams. The fight to protect East Maui kalo farmers and families is just beginning.  In the coming weeks, we are going to need your help to defeat HB 2501 because we are up against a multi-billion dollar corporation.

HB 2501 would allow, Alexander and Baldwin, a private corporation to continue de-watering the streams of East Maui despite having no use for this public water.  HB 2501 is still working its way through Hawaii’s legislative process. We need your help to stop this bill.

On March 21, 2016, HB2501 was amended by the Senate Water, Land, and Agriculture Committee.  The amendments appear to acknowledge the harm and injustice of the current diversions because they seek to shorten the time Alexander & Baldwin is allowed to take all the water from East Maui and appropriate funds to the Department of Land and Natural Resources so that it can properly administer the law.  While these amendments may make the bill less egregious, it is not enough to address the incredible harm long-suffered by residents and farmers who do not have access to sufficient water on a daily basis because A&B takes so much water from East Maui streams.

HB 2501 HARMS EAST MAUI KALO FARMERS AND FAMILIES

Before a corporation diverts water from a stream, it must prove its diversion will not cause harm to downstream users. A&B has never done this. A&B has used BLNR’s illegal “holdover” authorization to avoid ever having to prove that its diversions cause no harm. Manipulation of the process has allowed A&B to divert millions of gallons of water every day regardless of the consequences. This must stop.

KNOW THE FACTS. DEMAND THE TRUTH.  

  • HB2501 is tailor-made for A&B. It is the only entity with a “holdover” revocable permit and it is the only entity with a pending water lease application before the BLNR.
  • HB 2501 would reward a multi-billion dollar corporation for improperly taking water from the public, even if the courts conclude that the water diversions are illegal. The bill attempts to interfere with the judicial process and short change East Maui kalo farmers.
  • Giving A&B three more years to complete a process that started 15 years ago is UNFAIR – particularly after they have admitted that they do not need as much water as they have been taking. And they have not used the time they already had wisely. Where is the EIS? Where are the stream measurements?
  • Temporary bills do not address the issue.  They have a tendency to last a long time. Often the Legislature will repeal the provision to terminate a law at a later date.

There is no reason to continue this injustice any longer.
WHAT YOU CAN DO TO HELP.
The next step for the bill is the Senate Ways and Means Committee. East Maui residents and their supporters from across the Hawaiian Islands are currently working to convince the Chair of WAM to not hear HB2501.

You can help by contacting your own senator right now and asking him or her to ask Sen. Jill Tokuda to NOT HEAR HB2501 (phone numbers at the bottom).

CALL YOUR SENATOR TODAY!

LIST OF SENATORS
Baker, Rosalyn H.
Phone 808-586-6070
Fax 808-586-6071
E-Mail: senbaker@capitol.hawaii.gov
District 6 South and West Maui

Chun Oakland, Suzanne
Phone 808-586-6130
Fax 808-586-6131
E-Mail: senchunoakland@capitol.hawaii.gov
District 13 Liliha, Palama, Iwilei, Kalihi, Nu‘uanu, Pacific Heights, Pauoa, Lower Tantalus, Downtown

Dela Cruz, Donovan M.
Phone 808-586-6090
Fax 808-586-6091
sendelacruz@capitol.hawaii.gov
District 22 Mililani Mauka, Waipi‘o Acres, Wheeler, Wahiawa, Whitmore Village, portion of Poamoho

English, J. Kalani
Phone 808-587-7225
Fax 808-587-7230
E-Mail: senenglish@capitol.hawaii.gov
District 7 Hana, East and Upcountry Maui, Moloka‘i, Lana‘i, Kaho‘olawe

Espero, Will
Phone 808-586-6360
Fax 808-586-6361
E-Mail: senespero@capitol.hawaii.gov
District 19 ‘Ewa Beach, Ocean Pointe, ‘Ewa by Gentry, Iroquois Point, portion of ‘Ewa Villages

Gabbard, Mike
Phone 808-586-6830
Fax 808-586-6679
E-Mail: engabbard@capitol.hawaii.gov
District 20 Kapolei, Makakilo, and portions of ‘Ewa, Kalaeloa, and Waipahu

Galuteria, Brickwood
Phone 808-586-6740
Fax 808-586-6829
E-Mail: sengaluteria@capitol.hawaii.gov
District 12 Waikiki, Ala Moana, Kaka‘ako, McCully, Mo‘ili‘ili

Green, Josh
Phone 808-586-9385
Fax 808-586-9391
E-Mail: sengreen@capitol.hawaii.gov
District 3 Kona, Ka‘u

Harimoto, Breene
Phone 808-586-6230
Fax 808-586-6231
E-Mail: senharimoto@capitol.hawaii.gov
District 16 Pearl City, Momilani, Pearlridge, ‘Aiea, Royal Summit, ‘Aiea Heights, Newtown, Waimalu, Halawa, Pearl Harbor

Ihara, Les Jr.
Phone 808-586-6250
Fax 808-586-6251
E-Mail: senihara@capitol.hawaii.gov
District 10 Kaimuki, Kapahulu, Palolo, Maunalani Heights, St. Louis Heights, Mo‘ili‘ili, Ala Wai

Inouye, Lorraine
Phone 808-586-7335
Fax 808-586-7339
E-Mail: seninouye@capitol.hawaii.gov
District 4 Hilo, Hamakua, Kohala, Waimea, Waikoloa, Kona

Kahele, Kaiali’i
Phone 808-586-6760
Fax 808-586-6689
E-Mail: senkahele@capitol.hawaii.gov
District 1 Hilo

Keith-Agaran, Gilbert S.C.
Phone 808-586-7344
Fax 808-586-7348
E-Mail: senkeithagaran@capitol.hawaii.gov
District 5 Wailuku, Waihe‘e, Kahului

Kidani, Michelle N.
Phone 808-586-7100
Fax 808-586-7109
E-Mail: senkidani@capitol.hawaii.gov
District 18 Mililani Town, portion of Waipi‘o Gentry, Waikele, Village Park, Royal Kunia

Kim, Donna Mercado
Phone 808-587-7200
Fax 808-587-7205
E-Mail: senkim@capitol.hawaii.gov
District 14 Kapalama, ‘Alewa, Kalihi Valley, Ft. Shafter, Moanalua Gardens & Valley, portions of Halawa and ‘Aiea

Kouchi, Ronald D.
Phone 808-586-6030
Fax 808-586-6031
E-Mail: senkouchi@capitol.hawaii.gov
District 8 Kaua‘i, Ni‘ihau

Nishihara, Clarence K.
Phone 808-586-6970
Fax 808-586-6879
E-Mail: sennishihara@capitol.hawaii.gov
District 17 Waipahu, Crestview, Manana, Pearl City, Pacific Palisades

Riviere, Gil
Phone 808-586-7330
Fax 808-586-7334
E-Mail: senriviere@capitol.hawaii.gov
District 23 Kane‘ohe , Ka‘a‘awa, Hau‘ula, La‘ie, Kahuku, Waialua, Hale‘iwa, Wahiawa, Schofield Barracks, Kunia

Ruderman, Russell E.
Phone 808-586-6890
Fax 808-586-6899
E-Mail: senruderman@capitol.hawaii.gov
District 2 Puna, Ka‘u

Shimabukuro, Maile S.L.
Phone 808-586-7793
Fax 808-586-7797
E-Mail: senshimabukuro@capitol.hawaii.gov
District 21 Kalaeloa, Honokai Hale, Ko ‘Olina, Nanakuli, Ma‘ili, Wai‘anae, Makaha, Makua

Slom, Sam
Phone 808-586-8420
Fax 808-586-8426
E-Mail: senslom@capitol.hawaii.gov
District 9 Hawai‘i Kai, Kuli‘ou‘ou, Niu, ‘Aina Haina, Wai‘alae-Kahala, Diamond Head

Taniguchi, Brian T.
Phone 808-586-6460
Fax 808-586-6461
E-Mail: sentaniguchi@capitol.hawaii.gov
District 11 Manoa, Makiki, Punchbowl, Papakolea

Thielen, Laura H.
Phone 808-587-8388
Fax 808-587-7240
E-Mail: senthielen@capitol.hawaii.gov
District 25 Kailua, Lanikai, Enchanted Lake, Keolu Hills, Maunawili, Waimanalo, Hawai‘i Kai, Portlock

Tokuda, Jill N.
Hawaii State Capitol, Room 207
Phone 808-587-7215
Fax 808-587-7220
E-Mail: sentokuda@capitol.hawaii.gov
District 24 Kane‘ohe, Kane‘ohe MCAB, Kailua, He‘eia, ‘Ahuimanu

Wakai, Glenn
Phone 808-586-8585
Fax 808-586-8588
E-Mail: senwakai@capitol.hawaii.gov
District 15 Kalihi, Mapunapuna, Airport, Salt Lake, Aliamanu, Foster Village, Hickam, Pearl Harbor

If you aren’t sure who your Senator is, visit the Hawai‘i Capitol website.