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Court to decide how injection wells decision impacts county

US Supreme Court decided against Maui County in April ruling

An injection well at the Lahaina Wastewater Reclamation Treatment Facility pumps treated water from the sewage system into the ground in September 2019. In the spring, the U.S. District Court in Hawaii will decide how the U.S. Supreme Court’s decision in a lawsuit over the injection wells will affect Maui County. The Maui News / MATTHEW THAYER photo

A federal court in Hawaii will decide in the spring how the U.S. Supreme Court’s decision in a lawsuit over injection wells in West Maui will apply to Maui County, an attorney in the case said Tuesday.

The Supreme Court ruled against Maui County in April, saying that sewage plants and other industries cannot avoid strict environmental requirements under landmark clean water protections when they send polluted water indirectly to rivers, oceans and other navigable waterways.

The case dates back to 2012, when four environmental groups filed a lawsuit against the county over injection wells at the Lahaina Wastewater Reclamation Facility. They said the effluent was reaching the ocean and impacting coral reefs and sea life. The county had argued that it did not need a federal National Pollutant Discharge Elimination System permit under the Clean Water Act because the pollutants weren’t flowing directly into the ocean, but rather indirectly through groundwater.

Both sides saw the Supreme Court ruling in a different light.

Mayor Michael Victorino said it was a “step toward the clarity we have advocated for.” He added that the Supreme Court also confirmed that discharges to groundwater are the responsibility of the states, allowing the county to address the problem at a local level.

But Earthjustice attorney David Henkin, who represented the plaintiffs before the Supreme Court, said in April that the high court ruling meant that the county was in the wrong and needed an NPDES permit.

Henkin said Tuesday that the details of how the decision impacts the county will be ironed out before Senior Judge Susan Oki Mollway in U.S. District Court. Mollway previously sided with the plaintiffs in the early days of the case before it made its way to the high court, Henkin added.

Henkin’s comments came as the U.S. Environmental Protection Agency on Tuesday announced its draft guidance on how the Supreme Court’s decision should be applied under the Clean Water Act National Pollutant Discharge Elimination System permit program.

“EPA’s guidance will address several questions that the regulated community and others have raised since the Supreme Court issued its decision earlier this year,” EPA Assistant Administrator for Water David Ross said in a news release. “NPDES permits are essential tools that help protect our nation’s water resources. Understanding when such permits are needed is critical to the efficient administration of our Clean Water Act permitting programs.”

Henkin said that the EPA draft guidance generally does not provide specifics on when an NPDES permit is needed. However, it does raise some “red flags” in Maui County’s case and may require the county to get a permit.

The county did not provide a comment Tuesday on the draft guidance.

Henkin added that the EPA under the Trump administration has left some leeway in its draft guidance that may allow some pollution to go unchecked, by not faulting entities who accidentally pollute waters, for example, as well as possibly not requiring an NPDES permit for certain groundwater discharges.

“This is the dying gasp of an administration that tried, but failed, to convince the Supreme Court to gut the Clean Water Act,” Henkin said in an email Tuesday. “Once again, the Trump administration is trying to give a free pass to polluting industries. The incoming Biden administration should throw this draft guidance in the dumpster.”

He added that the draft guidance is legally nonbinding and didn’t think it would be finalized before President-elect Joe Biden’s administration moves in. Even if it were finalized, the new administration would not have to follow it, he added.

Henkin said that when Biden was vice president, the Obama administration filed a brief in support of the plaintiffs — Hawaii Wildlife Fund, West Maui Preservation Association, Surfrider Foundation-Maui Chapter and the Sierra Club-Maui Group.

The draft guidance will be available for public comment for 30 days following publication in the Federal Register, the EPA said.

For more information, visit epa.gov/npdes/releases-point-source-groundwater/.

* Melissa Tanji can be reached at mtanji@mauinews.com.

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