By Savannah Rose
Kaanapali Beach in Maui, Hawai‘i is one of Maui’s signature beaches. During the 18th century, only royalty could go onto this beach. The legend is that the Black Rock cliffs are a place for the soul to enter the spirit world. Long ago, King Kahekili bravely jumped from these rocks to challenge the spirits. Every evening at sunset there is a beautiful reenactment of Kahekili’s jump.
In June 2013, the University of Hawaii prepared the Lahaina Groundwater Tracer Study for the State of Hawai‘i Department of Health, U.S. Environmental Protection Agency, and U.S. Army Engineer Research and Development Center. The study showed that there was a hydraulic connection between the Lahaina Wastewater Reclamation Facility (LWRF) and the water off the coast of Kaanapali. The treated wastewater effluent that the County of Maui was injecting into its wells was making its way through the groundwater and into the ocean.
Four non-profit environmental groups (Hawai‘i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association) brought a suit against the County of Maui, alleging that the county violated the Clean Water Act (CWA) because they did not have a National Pollutant Discharge Elimination System (NPDES) permit. The United States District Court for the District of Hawai‘i ruled in favor of the environmental organizations. The court held that the county had violated the CWA by indirectly discharging into the ocean without a NPDES permit.
The District Court noted that the county had been aware that their wastewater was finding its way to the Pacific Ocean since at least 1991. This wastewater consists of suspended solids, dissolved oxygen, nitrogen, and phosphorus. As a result, the chemical, physical, and biological integrity of the water off Kaanapali has degraded.
The purpose of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The CWA requires a permit for “any addition of any pollutant to navigable waters from any point source.” The suspended solids, dissolved oxygen, nitrogen, and phosphorus in the wastewater are considered pollutants. Wells are among the CWA’s list of point source examples. The court relied on the Lahaina Groundwater Tracer Study to conclude that the wastewater from the point sources was flowing through the groundwater and into the ocean. This discharge, although indirect, still requires a NPDES permit.
The County of Maui appealed the United States District Court opinion. The Ninth Circuit Court of Appeals affirmed the District Court and held that the LWRF cannot indirectly dispose of their wastewater to avoid CWA liability.
The circuits are split on whether the CWA applies in this situation. The Supreme Court has granted certiorari to hear this case. The issues they will decide are “[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; and (2) whether the County of Maui had fair notice that a Clean Water Act permit was required for its underground injection control wells that operated without such a permit for nearly 40 years.” The date of the oral argument has not been determined as of the publication of this post.
Kaanapali, MAUI REAL ESTATE ADVISORS LLC, http://4mauirealestate.com/kaanapali (last visited Mar 15, 2019).
Stacey Alonzo, Watch traditional cliff diving at Kāʻanapali Beach’s Puʻu Kekaʻa (Black Rock), HAWAI‘I MAGAZINE (2016), https://www.hawaiimagazine.com/content/watch-traditional-cliff-diving-kaanapali-beachs-puu-kekaa-black-rock (last visited Mar 15, 2019).
CRAIG R. GLENN ET AL., LAHAINA GROUNDWATER TRACER STUDY (2013), http://earthjustice.org/sites/default/files/Lahaina-Tracer-Dye-Study.pdf.
Hawai”i Wildlife Fund v. Cty. of Maui, 24 F. Supp. 3d 980 (D. Haw. 2014).
Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018).
County of Maui, Hawaii v. Hawaii Wildlife Fund, SCOTUSBLOG, https://www.scotusblog.com/case-files/cases/county-of-maui-hawaii-v-hawaii-wildlife-fund/ (last visited Mar 15, 2019).
About the author:
Savannah is a third-year law student at Vermont Law School who is pursuing a Certificate in Water Resources Law. She has a strong passion for the environment and graduated from the University of Washington with a Bachelor of Science in Environmental Science. During her time there, she focused on earth system science and ecosystem restoration. After graduation, Savannah hopes to practice environmental law in Seattle, Washington.