By Ashley Joseph

On Thursday, April 23rd, the Supreme Court ruled that sewage plants and accompanying industries are not protected by the Clean Water Act when they send their treated wastewater on an indirect path to waterways (Press, 2020). This monumental decision came in the closely watched case of the County of Maui, Hawaii v. Hawaii Wildlife Fund.

Over the past four decades, the Clean Water Act has been overseen by the Environmental Protection Agency to enforce guidelines for regulating discharges of pollutants into U.S. waters, and the assurance of quality surface water. The Clean Water Act requires a variety of industries to obtain federal permits for pollution that enters navigable waters, which includes waterways, but does not include groundwater. The central question is whether pollution transiting through earth’s groundwater before reaching the ocean absolves Maui County of being subject to the anti-pollution provisions of the Clean Water Act.

The Lahaina Wastewater Reclamation Facility pumps about four million gallons of treated sewage into the groundwater daily. The contaminated groundwater flows to the ocean, causing degradation of aquatic ecosystems. The possible existence of a hydrological connection between the sewage injected into the groundwater and the nearby coastal waters was questioned by environmental groups. To confirm the link, the EPA-funded Lahaina Groundwater Tracer Study used tracer dye to conclusively demonstrate that sewage from Lahaina flows with the groundwater into nearshore waters off Kahekili Beach. The evidence indicated that Kahekili Beach received more than 80% of the treated wastewater. This long-term pollution has drastically impeded coral health and reproduction and has also disrupted overall ecological functioning. In fact, the coral cover at Kahekili has decreased by over 40% (Glenn, Whittier, Dailer, Kelly, & El-Kadi, 2016).

In March, the U.S. Circuit Court of Appeals ruled that Maui County was subject to the anti-pollution provisions of the Clean Water Act. With the potential for the contaminated wastewater to reach the ocean, the court deemed this as the “functional equivalent” of a direct discharge into the waterways under the CWA (Igleheart & Ufner, 2020). The Lahaina Wastewater Reclamation Facility was found to be in direct violation, and required to obtain a federal permit for future operations.

The case was appealed to the Supreme Court with the county’s lawyers declaring the judgment as a “novel reading.” They further claimed that the expansion of the Clean Water Act would open up “states, localities, tribes and millions of property owners to new liability and the prospect of crippling fines (Savage, 2019).”

On November 6, 2019, oral arguments were held before the Supreme Court. The justices openly debated with the representatives of Maui County and the Hawaii Wildlife Fund regarding the implications of a ruling for either side. A ruling for the County of Maui would allow industries to modify the transit and methods of disposal for their wastewater with little cost, to avoid the EPA’s guidelines. On the other hand, a ruling that favored the Wildlife Fund could have major repercussions for small property owners, causing them to be at fault for unintended water leaks.

The Supreme Court is composed of justices with divergent views. The conservatives state that the court can only enforce the wastewater flowing directly into navigable waters. On the opposing side, the court’s liberal justices claim that the regulations include the transit of polluted waters from inland that eventually makes its way to lotic ecosystems.

After much deliberation, the Supreme Court upheld the Hawaii Wildlife Fund in a 6-3 vote. It ruled that potential polluters are required to obtain a permit following the guidelines of the Clean Water Act when pollutants travel from a nonpoint source to a body of water. David Henkin, a lawyer for the Hawaii Wildlife Fund, declared the ruling as “a win for people who are concerned about protecting clean water in the United States” (Liptak, 2020). This decision has broadened the Clean Water Act after decades of growing public outcry and a push for stricter standards from public health and environmental groups.

This decision was viewed favorably by environmentalists, as it rejected the Trump administration's attempt to bypass permit requirements. With the new guidelines set by the Supreme Court, various sectors of industry feared that their waste discharge would be placed under new scrutiny.

The Maui case is significant, but it will not conclude the debate surrounding the jurisdiction of the Clean Water Act. The Supreme Court recently remanded the matter back to the Ninth Circuit Court for further proceedings. Moreover, there are currently several cases surrounding the Clean Water Act that will now have to apply the Court’s ruling. In the near future, it is likely the Supreme Court will revisit the range of jurisdiction under the Clean Water Act.

For now, the decision is recognized as a huge victory for clean water, implementing vital protections for the nation’s oceans, rivers, waterways, and coastal waters. Although the Supreme Court decision still allows water pollution, the limits can lessen pollution from facilities. This is a step in the right direction that is indicative of progress. Like David Henkin said, “the Supreme Court decision made that bad thing a little bit less bad” (Frazin, 2020).

Works Cited

Frazin, R. (April 24, 2020). Supreme Court decision will still allow for water pollution, but possibly less. Retrieved September 18, 2020, from https://thehill.com/policy/energy-environment/494595-supreme-court-decision-will-still-allow-for-water-pollution-but

Glenn, C., Whittier, R., Dailer, M., Kelly, J., & El-Kadi, A. (2016). Lahaina Groundwater Tracer Study. Retrieved September 18, 2020, from https://archive.epa.gov/epa/sites/production/files/2017-09/documents/lahaina-gw-tracer-study-final-report-june-2013.pdf

Igleheart, A., & Ufner, J. (September 10, 2020). U.S. 9th Circuit Court of Appeals: Municipally-owned wastewater injection wells require federal permit. Retrieved September 18, 2020, from https://www.naco.org/blog/us-9th-circuit-court-appeals-municipally-owned-wastewater-injection-wells-require-federal

Liptak, A. (April 23, 2020). Clean Water Act Covers Groundwater Discharges, Supreme Court Rules. Retrieved September 18, 2020, from https://www.nytimes.com/2020/04/23/us/supreme-court-clean-water-act-hawaii.html

Press, A. (April 23, 2020). In Hawaii Case, Justices See Broad Reach of Clean Water Act. Retrieved September 18, 2020, from https://www.snopes.com/ap/2020/04/23/in-hawaii-case-justices-see-broad-reach-of-clean-water-act/

Savage, D. (November 06, 2019). Supreme Court Leans Toward Expanding Clean Water Act to Protect Oceans from Wastewater. Retrieved September 18, 2020, from https://www.latimes.com/politics/story/2019-11-06/supreme-court-clean-water-act-hawaii-underground-wastewater-dumping

Hawaii’s Clean Water Act Case