Well, it’s finally here. After decades of polluting Lahaina reefs with treated wastewater, countless community complaints, and years of litigation, the United States Supreme Court has at last issued its opinion on the Lahaina Wastewater Reclamation Facility lawsuit filed against the County of Maui by environmental groups Hawaiʻi Wildlife Fund, Sierra Club Maui, Surfrider Foundation, and the West Maui Preservation Association.
The decision of the highest court in the land, however, remains inconclusive.
While the Court rejected Maui County’s argument of what defines a “point source” of pollution (and thus requires a National Pollutant Discharge Elimination System permit) in a 6-3 decision, the justices stopped short of ruling on whether or not the Lahaina Wastewater Reclamation Facility has been operating in violation of rules, or whether the county needs the NPDES permit to operate the LWRF.
(To summarize briefly, the County – with the support of the Trump Administration – argued that because the effluent is injected into wells which leak to the groundwater that seeps out in the ocean, they do not need the NPDES permit since the discharges are not direct from the injection wells into a navigable body of water. Environmental groups represented by Earthjustice argued that the county needs the permit because the LWRF pollutants are traceable and emerge in the ocean, the injection wells at the LWRF are causing damage to the ocean environment at Kahekili Beach, and that the definition of “point source” offered by the County would create a loophole for polluters to avoid compliance with the Clean Water Act.)
Instead, the court produced a new test for lower courts to apply when ruling whether a source of pollutants needs an NPDES permit.
“The question presented here is whether the [Clean Water] Act ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater,’” summarized Supreme Court Justice Stephen Breyer in writing the opinion of the Court. “We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.”
Say what now? “Functional equivalent of a direct discharge?”
“That is,” explained Breyer, “when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means. Time and distance are obviously important.”
He gave examples.
“Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies,” he wrote. “If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply.”
In the eyes of the Court, the “functional equivalent of a direct discharge” test is a middle ground between the extremes of the County’s argument and the Ninth Circuit Court decision which applied a broader “fairly traceable” test to determine whether a source of pollutants is a point source.
Where the County’s definition would create a “large and obvious loophole” allowing a polluter to “simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea,” the Court also had issue with the Ninth Circuit’s vague “fairly traceable” test, since “Virtually all water, polluted or not, eventually makes its way to navigable water….Given the power of modern science, the Ninth Circuit’s limitation, ‘fairly traceable,’ may well allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release (say, from a well or pipe or compost heap) and in highly diluted forms.”
The Court recognized that a “functional equivalent” test “may not be the easiest to administer.”
“The difficulty with this approach, we recognize, is that it does not, on its own, clearly explain how to deal with middle instances,” Breyer wrote. “But there are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.”
The Supreme Court vacated the Ninth Circuit Court’s decision and left the specifics of the LWRF case to be worked out by lower courts using the guidance devised by the justices.
The murky decision has made space for everyone to take a victory lap.
“This ruling is a step toward the clarity we have advocated for,” said Mayor Michael Victorino, even though the Court rejected the County’s argument. Councilmember Kelly King, who opposed taking the case to the Supreme Court and warned of potential negative consequences of letting a conservative Supreme Court rule on the Clean Water Act, said, “Had the Mayor signed the settlement agreement, the County could have saved millions in court and attorney fees; however, the decision is now an extra nationwide protection against water pollution.”
“This decision implicates all of the County’s injection wells and so the solution must be county-wide. Together we can do it.” said WMPA attorney Lance D. Collins.
In the end, though, Earthjustice attorney David Henkin, who argued the case in front of the Court, remained focused on finally reaching a resolution that works for the environment.
“The Ninth Circuit needs to make a new decision when we send the case back to them, which should be in about a month’s time,” Henkin told me. “The mayor is technically correct, that the Supreme Court did not answer the question of whether the County needs a permit. The Supreme Court told the lower courts to go back and decide that again.
“That said, I really don’t think that anyone could say with a straight face, that the County is not going to be ordered to get a permit.”
When looking at the Court’s “functional equivalent” criteria of “time and distance,” Henkin considered the close proximity of LWRF to the beach and studies showing LWRF effluent takes about two months to reach the ocean. “We don’t expect the lower courts are gonna have any difficulty finding a violation,” he told me.
“It’s really an easy solution,” said Henkin, when asked how he thinks the County could do the right thing. “[The County] needs to build the infrastructure and start reusing the treated wastewater, put it to good use, keep it off the reef. For any future use or continued use of the injection wells, they need to have a permit that tells them what they can or cannot do….but it’s far better to keep the stuff out of the injection wells in the first place.”
Images courtesy Earthjustice
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