US Supreme Court hears Maui Clean Water Act case that could have national impact

Updated: Nov. 6, 2019 at 11:03 AM HST
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WASHINGTON, D.C. (HawaiiNewsNow) - The U.S. Supreme Court heard oral arguments on Wednesday in a Maui wastewater case that could have wide-reaching effects across the country.

The central question is whether Maui County is violating the Clean Water Act by injecting wastewater from a treatment plant in Lahaina into groundwater that eventually ends up in the Pacific Ocean.

Supreme Court justices had several questions for both sides.

“Their questions were insightful," said Maui Mayor Mike Victorino, who attended the hearing.

"I felt that they truly understood the complexity of the issues in this case and the potential effects of the expansion of the Clean Water Act on governmental entities and private properties.”

Hawaii Wildlife Fund and other environmental groups argued the contaminated water is damaging the reefs and polluting the ocean.

They won their case in federal appeals court. But the county appealed and took it to the Supreme Court, in a case that could be precedent-setting for counties and states nationwide.

Drew Caputo, who is on the Earthjustice team representing Hawaii Wildlife Fund, contends Maui’s County’s motivation in the case is “to reduce the compliance burdens that they have as polluters.”

He thinks this case is clear, saying the tainted sewage water that ends up in the ocean should be federally-regulated.

The county says that’s not necessary because the wastewater they are treating is not going directly into the ocean, simply into wells that make their way to the Pacific via groundwater.

Caputo thinks this is a loophole in the 1972 Clean Water Act that needs to be closed by the U.S. Supreme Court. “Even if you know that that pollutant is going to go to the river, ocean or the lake through the groundwater, you can do that without any pollution control obligations at all,” he said.

Jesse Richardson, from the national Water Systems Council, filed a brief in support of the County of Maui. Richardson believes the county should change its polluting habits, but that it should be a state mandate, not federal one.

“In a lot of states this would be covered by state regulation and it should be covered in Hawaii,” said Richardson.

Richardson says if the Supreme Court finds in favor of Hawaii Wildlife, the consequences would be widespread. He thinks it could force every American to go through an expensive permitting process whenever they touch groundwater anywhere near the ocean.

“That would add a lot of time and expense to that and that would ultimately be passed onto the homeowner,” said Richardson.

Last month, the Maui County Council urged Mayor Mike Victorino to settle the case before it headed to the Supreme Court.

[Read more: Maui mayor says he won’t drop wastewater case headed to US Supreme Court]

Victorino, however, decided to fight the appeals court ruling and attended Wednesday’s hearing. He argued that conforming to federal permits will lead to huge increases in Maui water rates.

A decision from the nation’s highest court is expected sometime in June.

“This case has never been about winning or losing," Victorino said. "It’s about clarity in the law so that we can move forward, confident as to the clear boundaries of the law so we can implement our programs and practices accordingly. I look forward to the court’s decision.”

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