The State of Aloha

During the summer of 1969, the Cuyahoga River caught on fire. Again. Sparks from a passing train on a rail line near the river are believed to have ignited the highly flammable cocktail of toxic sludge that coated the surface of the river. It was the 13th time the river burst into flames. It wasn’t even considered the worst fire either. When the river ignited in 1952, plumes of black smoke rose high above the riverbanks and threatened to destroy a big part of the surrounding city of Cleveland.

The industrial revolution in the 19th century and later on in the 20th century brought economic prosperity to Cleveland. Steel mills and other factories lined the riverbanks and dumped pollutants directly into the river just before its waters reached Lake Erie.

By the 1960s, boaters would report massive algae blooms and a lot of dead fish in the lake. Signs warning swimmers to stay out of the water or swim at their own risk were a part of life in Cleveland.

Not for Carl Stokes. Being one of the very few African American mayors at the time, he had the attention of the national press. When he saw the river burning, he took action.

Stokes spoke out against the pollution and urban decay. The water was dirty, and it would not be tolerated anymore. He went to Washington and pushed the federal government to get involved in cleaning up and keeping clean waterways around the country. The result was the Clean Water Act of 1972.

So what’s our fair municipality’s beef with this legislation? The answer is sewage.

Domestic, commercial and industrial wastewater on Maui is treated at facilities all over the county. The water then goes to one of the 18 injection wells and is pushed deep underground. There, the water is further filtered as it seeps through sand and rock. Maui has used injection wells for some time now. Before that, we dumped wastewater into the ocean.

In 2012, environmental groups sued the county. They maintained that treated water from injection wells made its way into the open ocean and violated the Clean Water Act. This, they argued, resulted in algae blooms forming at Kahekili Beach in Lahaina and smothering nearby reefs and harming the marine ecosystem.

The county disagreed. The federal District Court in Honolulu didn’t. It found that the Lahaina facilities and wells were in violation of the Clean Water Act. The county appealed.

The issue turned on whether the Clean Water Act applied to pollutants entering navigable waters indirectly like the injection wells, or was it limited to something akin to open dumping like the factories did to the Cuyahoga River 50 years ago.

The appellate court ruled for the environmentalist groups. The case, it concluded, “is about preventing the county from doing indirectly that which it cannot do directly.” The county still disagreed.

It sought review by the Supreme Court of the United States. Other groups and states took notice. Attorneys general from some of the most conservative states and most polluted waters in the union along with the Trump administration urged the high court to hear our county’s appeal. It worked.

The Supreme Court of the United States plans to hear the case later this year. That means the highest court in the land will determine if treated sewage seeping into the Pacific Ocean constitutes a violation of the Clean Water Act. A victory for our county would have a huge impact across the country.

It could mean that the Clean Water Act would not apply to companies and governments whose pollutants end up in rivers, lakes and the ocean simply because they contaminated the groundwater.

Not everyone at the county building is happy about this. County Council Chairwoman Kelly King wants to get the council to withdraw the appeal and settle with the environmental groups. After all, the county has already agreed that if it loses on appeal, it will invest more money into the wastewater treatment facilities so that instead of seeping the water through an injection well, it could be reused for irrigation.

Now it looks like it might not lose at all. King’s proposal to settle will be heard and argued before the council soon. The process is surely going to raise difficult questions going well beyond injection wells.

Does Maui County want to save its injection wells so badly that it will water down the Clean Water Act? Does it make sense to spend taxpayer money on Mainland lawyers instead of upgrading the wastewater treatment facilities for irrigation? Who in the county gets to call these shots in the first place?

These questions will surely be raised and the saga will surely continue.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”