No. There’s been no change in the way the Clean Water Act has been regulated since Congress enacted it in the 1970s. The Earthjustice lawsuit, like similar lawsuits across the country, sought to expand the coverage of the Clean Water Act. The Hawaii District Court agreed with the plaintiffs and created a new theory of liability, ruling that Maui needed a permit under the Clean Water Act in 2014, and the 9th Circuit came up with another new theory of liability in 2018. This is despite neither the state or federal regulators ever bringing any enforcement action, or requiring such a permit. Congress’ intent was for the Clean Water Act to apply to point source discharges, not non-source points such as Maui’s use of injection wells where recycled water mixes with sea and groundwater. Simply put, you can’t “gut” something that’s not there.
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Maui County is appealing an attempt to expand the national scope of regulations of the federal Clean Water Act, which Congress intended as an end-of-pipe regulation appropriate for ocean sewage outfalls and other direct discharges into bodies of water. Staying the course with the U.S. Supreme Court protects our county, our taxpayers and allows the County to continue to manage its recycled water disposal in the most environmentally responsible way available and feasible.
If the 9th Circuit Court’s expansion of the Clean Water Act were allowed to stand, Maui County could be forced to abandon its longstanding green recycled water program and resort to offshore sewage outfalls. This could cost hundreds of millions of dollars. Also, private entities and citizens with cesspools, septic systems or other wastewater disposal systems could face fines and liability under the Clean Water Act if it can be shown their discharges make their way to the ocean or body of water. The EPA says that the 9th Circuit’s ruling, if allowed to stand as interpretation of the Clean Water Act in the circuit, applies to septic systems as well as green infrastructure. While the state Department of Health may not have the manpower to enforce against individual homeowners, that does not mean property owners couldn’t face citizens’ suits, like this very lawsuit that Maui County itself is defending. In Massachusetts, a condominium already is facing a citizen’s lawsuit based under the same “hydrologic connection” theory underpinning the 9th Circuit ruling. Other non-sewered areas, such as Maui Meadows or the Hana district, may face similar liability.
For decades, the County of Maui has safely operated its wastewater reclamation facilities with permits obtained under the federal Safe Drinking Water Act and the state equivalent statute. These laws govern non-source point discharges to groundwater, as is the case with Maui’s injection wells. In West Maui, excess, high quality recycled water (water not used for irrigation of golf courses, landscaping or other uses) flows underground through deep perforated pipes where it’s filtered through soil and mixes with groundwater and seawater. It takes a minimum of three months to a total of four years to emerge offshore from underground freshwater seeps. The recycled water-groundwater mix travels half a mile and is diffused over 2 miles of coastline.
Hasn’t water from West Maui injection wells negatively impacted the reef and fish in West Maui, particularly at Kahekili Beach where a tracer dye study found the presence of water from injection wells at the Lahaina Wastewater Reclamation Facility?
Ocean water quality is affected by many different things. West Maui ocean water quality, including reef conditions and herbivore fish health at Kahekili Beach, have improved since fish conservation management practices were implemented in 2009. Kahekili Beach is where tracer dye studies show a portion of the groundwater-recycled water enters the ocean through freshwater seeps. If highly diluted recycled water from underground seeps were the cause of offshore conditions, then there would be signs of further deterioration. In fact, conditions have improved. An online search of “underwater pictures at Kahekili Beach” will show images of reefs and fish that appear relatively healthy.