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.
Published as a Viewpoint Op-Ed in the Maui News on February 1, 2018
By Adriane Raff Corwin
It’s a matter of basic human decency to show respect toward each other’s ancestral remains. The Central Maui sand dunes are the resting place for thousands of iwi kupuna (ancestral bones), but landowner Maui Lani Partners has been allowed to illegally mine
hundred of thousands of tons of Central Maui sand and destroy countless burials in its Phase 9 site. Malama Kakanilua, a local group of cultural descendents and their supporters, is fighting to stop this desecration once and for all.
As a first step, County Council member Elle Cochran introduced legislation to establish a moratorium against all sand mining in Central Maui in spring 2017. It finally became law on Jan. 5 but included an exemption clause: Anyone with land in the moratorium area would be excused from it if they held a valid grading permit before the moratorium passed.
MLP’s Phase 9 permit was set to expire in late 2017, so it would not be able to get a new permit once the moratorium became law. But instead, in late November 2017, the Public Works Department quietly extended Maui Lani’s Phase 9 permit. The time stamp in the email exchange showed only 29 minutes passed between Public Works receiving MLP’s application for permit extension and the department’s approval of it. This made sure MLP’s Phase 9 site is exempt from the moratorium.
Public Works cannot claim that it was unaware of the controversy. In April 2017, Gina Mangieri of KHON2 did an expose on the scheme between development company MLP and cement company HC&D (formally Ameron) to mine thousands of tons of sand from MLP’s Phase 9 site, export it on barges and create cement for construction projects like Oahu’s rail. According to KHON2, MLP and HC&D’s joint owner, the Mills Group, made $30 million off Maui sand mining in 2016 alone. All of this was done with a simple grubbing and grading permit (No. G2014/0090); the Mills Group found loopholes in the law that allowed them to mine away the small amount of inland sand Maui has left.
Mayor Alan Arakawa called for a moratorium on sand mining but took no action, so Malama Kakanilua sent him a letter in May 2017 that explained why MLP’s Phase 9 permit should be revoked, including the fact that MLP provided incorrect information in its original application by checking “No” after the application question, “Are there known burials, cemeteries, or other historic sites on the property?” The land in question is a well-documented pre-contact burial ground, and this type of omission should warrant revocation and reevaluation.
David Goode, director of Public Works, signaled that he was aware of the controversy by writing a letter to the State Historic Preservation Division in July 2017, relating community testimony stating MLP did not have required archaeological monitors on hand during its work.
So, despite the fact that the original permit application included false information, new burials were found at the site, the council was working on a moratorium, Maui-Lana’i Burial Council was weighing a motion to preserve the burials in place, Malama Kakanilua filed a lawsuit against MLP, the judge issued a preliminary injunction in that suit to stop the mining, and the Planning Department sent a warning letter that MLP initially ignored, Public Works extended MLP’s Phase 9 permit in 29 minutes — without consulting any other pertinent agency or department.
Malama Kakanilua and Sierra Club Maui are calling on the county to revoke MLP’s permit extension as well as the grading permit granted to Waiko Industrials (also granted right before the moratorium for another highly sensitive burial area). We want a complete audit of the permitting process so that we: 1) get to the bottom of how the MLP permit was approved in the first place, and 2) ensure this blind approval process stops once and for all.
County government needs to make sure the mining stops. So far, Public Works has taken no action, so Cochran has introduced a new bill to remove the exemption clause from the moratorium law, which may be discussed at the Feb. 2 council meeting. We urge the public to stand up for decency and demand these burials be protected.
* Adriane Raff Corwin is the directing coordinator of Sierra Club of Hawai’i’s Maui Group.
Well, it’s May 5th, which means the Hawai’i State Legislature is in recess until January 2018 (they can and may be called into special session later this year, most likely to pass a funding bill for Honolulu Rail).
Unfortunately the list of good environmental bills that made it into law is short – from pesticides to clean energy, some of our state legislators took a pass on making our environmental future brighter. Our friends who work on affordable housing and other important social issues also saw very little helpful legislation passed.
But on the bright side – we were successful at beating back many bad bills. House Bill 1536 was killed and House Bill 1469 was recommitted to next year’s session, in no small part because of Sierra Club of Hawai’i’s Executive Director Marti Townsend.
There was also some great creative activism around HB1580, a cutting edge bill that set a goal of 100% clean ground transportation by 2045 – #Bananasfor1580. Although HB1580 was eventually killed, it spurred many new and young activists to participate, and we’re excited to see what’s in store for 2018! Learn more about #Bananasfor1580.
Sierra Club Maui Group wants to extend a huge mahalo to all Sierra Club of Hawai’i Chapter Staff and allies in Honolulu who worked tirelessly to pass the good bills and beat back the bad ones!
If you want to get involved more with helping pass good bills in the next legislative session, sign up for Sierra Club of Hawai’i’s Capitol Watch Action Network.
Dirty Dozen 2015
Imagine what would happen to Hawaii’s finite natural and cultural resources if DLNR’s funding is cut….
Well – that has happened.
While all eyes were on the Senate,
The House passed the budget HB 500 HD1
WITHOUT funding for DLNR 2016 programs.
The Senate Ways and Means Committee (WAM) will hold a hearing on HB 500 HD1 on Wed. April 1.
Ask Senators to restore and increase funding to DLNR programs which are essential for protecting Hawaii’s natural resources, land, water and cultural sites that are held in trust for present and future generations.
If this is your first time submitting testimony, you need to register. Use this link: http://www.capitol.
Click on Register in the top right hand corner of the page, and follow instructions.
Ways and Means Committee members: WAM
Find your Senator: Senators
Contact all Senators: email@example.com
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For your late-night reading pleasure, the State budget HB 500 HD1
Cut from DLNR’s budget:
Natural Area Reserve Fund (NAR) – Governor’s FY2016 request of $13m spending authority;
House reduced to $0 (FY2015 spending authority for NAR Fund had been $8m)
Legacy Land Conservation Fund – Governor’s FY2016 request of $6.8m spending authority;
House reduced to $0 (FY2015 spending authority had been $5.1m)
Forest Stewardship Fund – Governor’s FY2016 request of $6.3m spending authority;
House reduced to $5m (same level as the FY2015)
Hawai?i Invasive Species Council programs – Governor’s FY2016 request of $4m general funds;
House reduced to $0 (FY2015 Legislature provided $5.75m to HISC programs)
Native Resources & Fire Protection – Governor’s request for $750,000 in general funds for wildfire and emergency response equipment was cut from the budget.
DOCARE (Department of Conservation and Resource Enforcement) – NO funding was included in the House budget for:
- Community Fisheries Enforcement Unitson Kaua`i, O`ahu,
- Makai Watch Coordinator on Maui, Hawai`i island
Division of Aquatic Resources – NO funding was included in the House budget for:
- Humpback Whale Sanctuary State Co-Manager
- Community-based Subsistence Fisheries Area Planner and Marine Regulation and Policy Specialist to support community-based marine management like H?`ena, Pupukea, Mo`omomi, Ka`upulehu, etc.
The NAR Fund and Forest Stewardship Fund use conveyance tax revenue to manage forest and watershed resources through the State Natural Area Reserves (mostly ceded lands), Forest Reserves, Watershed Partnerships, Natural Area and Forest Stewardship partnerships with private landowners, and the Hawai`i Youth Conservation Corps.
The Legacy Land Fund provides State-matching funds to purchase and protect cultural, natural, agricultural, historical, and recreational resource lands.
The Hawai’i Invasive Species Council provides funding for critical invasive species prevention, eradication, control, research, and education programs.