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.

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.