Legal, Water Quality
February 27 2019

Maui Injection Well Case Called Up to the U.S. Supreme Court

by Angela Howe

The U.S. Supreme Court will consider the arguments at issue in the Surfrider Foundation, Hawai'i Wildlife Fund, Sierra Club-Maui Group, and West Maui Preservation Association case regarding the County of Maui’s polluting injection wells and their liability under the Clean Water Act. This case is about the Lahaina Wastewater Reclamation Facility’s injection of 3-5 million gallons per day of treated sewage into groundwater that then transports the sewage to the ocean waters.The waters in Lahaina are very popular amongst residents and tourists, while the offshore waters of Kahekili Beach Park are part of the Hawaiian Islands Humpback Whale National Sanctuary.

Surfrider and our coalition partners, as represented by Earthjustice, have been successful in this case at the lower district court and the U.S. Court of Appeals for the Ninth Circuit.  The Ninth Circuit ruled that the County of Maui violated the law by injecting treated sewage into the groundwater, which enters the Pacific Ocean, a water of the United States covered by the federal Clean Water Act. Though treated, the sewage still contains a variety of contaminants, including excess nutrients that have been linked to algal blooms and shown to damage coral reefs. Specifically, the county's wastewater facility that was put into operation in the early 1980s acted as an unpermitted point source of pollution under the Clean Water Act, according to U.S. District Court Judge Susan Mollway.  The Ninth Circuit agreed with the District Court stating: “This case is about preventing the County from doing indirectly that which it cannot do directly,” referring to the deposit of pollutants into the Pacific Ocean.

However, after the County of Maui appealed the case up to the U.S. Supreme Court for review, the Supreme Court asked the U.S. Solicitor General to chime in on whether the case should be reviewed.  The Solicitor General recommended that the nation’s high court take up the case. The US Supreme Court did so with the specific purpose to review whether the Clean Water Act applies to a wastewater facility where effluent disposal reaches navigable waters indirectly via injection wells. The Supreme Court granted the County's petition for review on the question of "[w]hether the [Clean Water Act] requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." 

Another factor for why the U.S. Supreme Court took up the case may have been the perceived split in the circuits.  While the U.S. Court of Appeals for the Fourth Circuit did find Clean Water Act liability for a case involving a burst underground pipeline in 2014, which spilled hundreds of thousands of gallons of gasoline, contaminating nearby rivers, lakes, and wetlands; the U.S. Court of Appeals for the Sixth Circuit did not find liability for pollutants from coal ash retention ponds that seeped into groundwater that fed local waterways.  

Surfrider filed the case in April 2012 to protect nearshore water quality, sensitive reef habitat, and the public health for those who enter the water off of the Northwest coast of Maui. Two studies, by the University of Hawai’i Manoa and U.S. Geological Survey, concluded that effluent from the Lahaina wastewater plant is discharging pollutants into the ocean. Surfrider Foundation Maui Chapter, as part of the strong local coalition challenging polluting injection wells, works to protect the beautiful reef and marine life enjoyed by residents and visitors of Maui alike. 

The U.S. Supreme Court has not set a hearing date for this case, but it is expected to be reviewed in the October to December 2019 timeframe.