04 • 02 • 2020

Litigation Leads to Hawaii Plastic Pollution Win: EPA Withdraws Approval of State’s 303(d) List

By Surfrider Foundation

In February 2020, Surfrider Foundation, Center for Biological Diversity and Sustainable Coastlines Hawaii sued the U.S. Environmental Protection Agency (“EPA”) to address plastic pollution under the Clean Water Act. The lawsuit challenged EPA's failure to examine studies showing widespread plastic pollution in Hawaii’s coastal waters and declare the waters “impaired” under section 303(d) of the Clean Water Act.  This month, the EPA responded to the lawsuit by withdrawing their erroneous list of impaired waters in Hawaii that failed to take into account water quality impairment due to plastic pollution. The EPA has ordered Hawaii to now examine the impact of plastic pollution on its ocean, beaches and wildlife.

The U.S. Environmental Protection Agency this week notified state officials that it is withdrawing its 2018 approval of the “list of impaired waters” required under the Clean Water Act with respect to plastics in Hawai'i water bodies.  The letter states that EPA “is now exercising its inherent authority to reconsider prior decisions in order to ensure conformity ...with the applicable statutory and regulatory requirements with respect to the waterbodies within Hawai‘i state boundaries for which the State received data and information related to plastics.” Hawaii now has until May 29, 2020, to evaluate whether plastic pollution is impairing any of the state’s water bodies, including threats to wildlife and people.

The plaintiffs took action this year to protect 17 coastal water bodies around Hawaii from widescale plastic pollution that covers beaches, pollutes our waves, degrades coral reefs and threatens  wildlife. Plastic pollution in Hawaii ranges from microplastics that contaminate coastal waters and harm marine life to massive piles of plastic waste along Kamilo Beach, nicknamed “Plastic Beach.” Studies indicate that 17 water bodies around the Hawaiian islands are impaired by plastic pollution.

“Our plastic pollution activists in Hawaii and around the nation are pleased to see this decision,” said Angela Howe, Esq., Surfrider Foundation’s Legal Director. “This is a critical first step to address marine plastic pollution through our nation’s water quality protection laws and to help prevent future degradation of beaches, coral and marine life.”

The Clean Water Act requires the EPA to designate as “impaired” all water bodies that fail to meet state water-quality standards. Section 101(b) of the Clean Water Act explains that one of the Act’s foundational principles is “to recognize, preserve, and protect the primary responsibilities and rights of States.” Once a water body is designated as impaired, officials must take action to reduce the pollution.

“This is great news for Hawaii, which has been hit hard by plastic pollution,” said Maxx Phillips, the Center’s Hawaii director. “The ocean plastic pollution crisis is a public health crisis. Plastic permeates our waters, chokes wildlife and carries toxins onto our beaches, through our food web, and eventually onto our tables. It’s time for Hawaii to finally address this threat.”