Maui Water-Pollution Case Faces Supreme Court Resolution

(CHRIS MARSHALL/Courthouse News Service)

WASHINGTON (CN) – The U.S. Supreme Court took up an appeal by Maui on Tuesday over the island’s history of discharging wastewater into the Pacific Ocean without a permit.

Led by Hawaii’s Wildlife Fund, a group of environmentalist nonprofits that initiated the suit claimed that the failure by state and federal regulators to make Maui get a permit under the National Pollutant Discharge Elimination System amounted to a violation of the Clean Water Act.

Though both a federal judge and the Ninth Circuit agreed, Maui noted in its petition for certiorari that both the Environmental Protection Agency and Hawaii regulators “have always known” that groundwater causes discharge from its wastewater-treatment center in Lahaina to reach the ocean.

The Supreme Court invited the U.S. solicitor general to brief the position of the United of the States last year and it granted Maui a writ of certiorari on Tuesday. Per its custom, the order does not include any statement from the court.

Maui’s facility disposes anywhere from 3 million to 5 million gallons of treated wastewater daily, but the county says that a federal permit is necessary only for pollution that directly pours into a waterway.

The county has already agreed to a $100,000 settlement if the decision over Maui’s permitting requirements is upheld. The county also agreed to invest in new infrastructure.

Maui’s court opponents are represented in the case by the group EarthJustice.

“We are confident the Supreme Court will agree with the appeals court that, when Congress passed the Clean Water Act to protect our nation’s waters, it did not give polluters a loophole to use groundwater as a sewer to convey harmful pollutants into our oceans, lakes and rivers,” Earthjustice staff attorney David Henkin said in a statement.

Earthjustice noted that over the last 40 years, EPA and state officials have “regularly used” authority granted to them under the Clean Water Act to stop wastewater treatment plants, chemical plants, mines or other oil and gas waste treatment facilities from polluting national waterways via groundwater.

“The final outcome of this case could determine whether the public will continue to be protected from these harmful polluting activities,” Henkin said.

At the firm Alston & Bird, partner Kevin Minoli called Maui’s case one that significantly expands the EPA’s decades-long understanding of Clean Water Act permitting requirements.

The other case Minoli is watching is Kinder Morgan Energy Partners LP v. Upstate Forever.

“By holding that permits are required whenever any amount of the discharge reaches the surface water in any way and at any point in time, the two decisions have unearthed incredible uncertainty for those who are trying to understand and comply with the law,” said Minoli, a former senior official in the Environmental Protection Agency’s Office of General Counsel.

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