In 2012, Earthjustice sued Maui County on behalf of four Maui based environmental groups: West Maui Preservation Association, the Hawaii Wildlife Fund, Sierra Club-Maui Group, and the Surfrider Foundation over the operation of four injection wells associated with the Lahaina Wastewater Reclamation Facility.

Last week, the U.S. Supreme Court agreed to hear the case.

The issue: does the Clean Water Act apply to a wastewater facility where effluent disposal reaches navigable waters indirectly via injection wells?

Wastewater treatment plants basically fall into three categories: primary, secondary and tertiary, with primary being the lowest level of treatment and tertiary being the highest. LWRF is a secondary treatment plan. Wastewater treatment plants collect the wastewater from toilets, sinks, and drains across the island and sends it to a treatment plant.

The treated water is called effluent. The effluent has to go somewhere. Where and when possible, some of it can be used for irrigation, industrial or other non-potable purposes. But the rest needs to be disposed of, so it gets discharged either into the ocean, reservoirs or underground injection wells.

The original lawsuit filed in 2012 by environmental groups revolves around the adverse effect the effluent discharge has on the coral reefs and marine ecosystem at Kahekili in Maui.

Darla White/Hawaii DLNR

Injection wells are pretty much what they sound like. Pipes allow for injecting substances into the ground as opposed to a traditional well where you would be pumping something out. On Maui, there are a total of 17 wells, ranging in depths from 180 to 385 feet.

Injection wells are fairly common. Currently regulated under the Safe Water Drinking Act, LWRF is considered a Class V well. The EPA estimates there are approximately 650,000 wells operating in the United States today.

Yet, the injection wells at the at LWRF has been an issue for the community for years. Studies have effectively shown the effluent reaches the ocean and adversely impacts marine life, especially coral.

So while these types of injection wells are currently regulated by the SWDA, they are not regulated by the Clean Water Act.

Not A Big Fan of Judicial Activism

This is where our Maui conflict begins.

The SWDA is intended to protect the water we drink. Whereas, the CWA alternatively is intended to protect all “navigable waters” of the United States. So while the SDWA and the UIC permit would consider and protect our aquifers and drinking water sources, it would not necessarily protect all waters in our watersheds or oceans.

This is where the petitioners have issue with the current practice; the petitioners want the county to do more. They want the county to apply for a National Pollutant Discharge Elimination System permit. An NPDES permit applies to projects where point source pollution may enter the waters of the United States. There is even a category of NPDES permits specifically for municipal wastewater, but traditionally this has been for wastewater facilities that directly discharged effluent into navigable waters and have not to date applied to injection wells.

In 2015, U.S. District Judge Susan Mollway found the CWA did apply to the injection wells. The petitioners were then able to reach a potential agreement with the county later that year whereby if Maui doesn’t win the case on appeal, the county would pay $2.6 million in penalties with $2.5 million of that money going to divert the effluent.

On appeal, the U.S. 9th Circuit Court of Appeals ruled to uphold Mollway’s ruling.

At the heart of the 9th Circuit decision was this conclusion: “this case is about preventing the County from doing indirectly that which it cannot do directly. The County could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA’s prohibitions.”

But to borrow from the court’s reasoning, it’s concerning the petitions are doing indirectly that which they could not do directly: go to the EPA to have the clean water regulations amended to clearly include injection wells. I don’t believe it was the intent of Congress to include injection wells or similar actions in the CWA.

I’m not a fan of judicial activism.

I think it’s tempting the fates to employ the courts to make law where that authority is clearly reserved for the legislative branch. The real danger of judicial activism by liberal courts today is that it weakens the ability for progressives to rail against judicial activism by conservative courts tomorrow.

And with a tidal wave of right-leaning judicial appointees being confirmed under the Trump administration, liberals need to think hard about messages they are sending to federal courts.

Degraded coral reefs at Kahekili Beach Park in west Maui.

Peter Swarzenski/USGS.

Regardless of who wins at the Supreme Court, Hawaii loses.

If the lower court decision is upheld, applying the CWA to wastewater injection wells across Hawaii would create more regulatory gridlock for the Hawaii Department of Health and potentially hundreds of millions of dollars in upgrades and/or fines.

A reversal at the Supreme Court means the County of Maui can continue to inject effluent into the well, continuing its adverse impact on the coastal environment. No one wins.

A best-case scenario at this point would be a settlement whereby Maui agrees to upgrade the treatment plant and reclaim as much of the non-potable effluent produced for reuse in West Maui. Considering the long term conflicts around water usage in West Maui and the extensive benefits of a healthy reef system, this is a solution the County should have embraced years ago.

In exchange, the petitioners should be willing to leave the existing decision limited to LWRF as to not cripple the state further with burdensome regulatory oversight that are largely unnecessary.

Yet, it is well past time for the state to upgrade its wastewater system and reclaim effluent discharge better.

As the population grows, pollution increases, and demands for water become more critical, we would all be better off if community and government could come together to find innovation solutions for these wicked environmental challenges instead of taking their battles to the courtroom.

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