Supreme Court ruling not win, loss; it offered clarity
In its ruling in County of Maui, Hawaii v. Hawaii Wildlife Fund, et al, the U.S. Supreme Court did not issue a “win” or “lose” order. It did not rule against Maui County or require it to get a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit.
The Supreme Court unanimously agreed with the county that the 9th Circuit’s previous decision had been too broad and had gone too far beyond what Congress had intended. The ruling also could have affected millions of homeowners with septic systems or cesspools.
Importantly, the high court established a new multifactor test that regulatory agencies and the lower courts must use to determine whether indirect discharges need certain permits or whether they do not.
The court’s direction is what I have asked for all along — clear direction for regulation. The court’s test gives the county and the state Department of Health a road map moving forward. It provides clarity before we commit taxpayer dollars toward long-term environmental solutions.
So far, the county has spent $48 million on recycled water projects, and it has another $82 million in projects planned or in process in the near future.
For decades, the County of Maui has operated its wastewater reclamation facilities in compliance with Safe Drinking Water Act permits from the U.S. Environmental Protection Agency and the Hawaii Department of Health. The present dispute has been whether Maui County also needs to obtain an NPDES permit, which would be an expansion of current federal regulations.
The Supreme Court sent the case back to the 9th Circuit Court of Appeals, with instructions to apply the high court’s “functional equivalent of a direct discharge” test.
Under that test, the factors to consider include: 1) transit time; 2) distance traveled; 3) the nature of the material through which the pollutant travels; 4) the extent to which the pollutant is diluted or chemically changed as it travels; 5) the amount of pollutant entering the navigable waters relative to the amount of pollutant that leaves a point source; 6) the manner by or area in which the pollutant enters the navigable waters; 7) the degree to which the pollution (at the point it enters the water body) has maintained its specific identity.
The Supreme Court gave a few examples of how its test should be applied. Where a pipe ends a few feet from navigable water (the ocean, lake, or many rivers), and the pipe emits pollutants that travel a few feet through groundwater or over the surface, an NPDES permit is required. But, where a pipe ends 50 miles from navigable waters, and the pipe emits pollutants that mix with groundwater and other materials and end up in navigable water years later, permit requirements likely do not apply.
The court acknowledged that applying its test to “middle instances” will be difficult. We don’t know how the 9th Circuit will apply this test to the Lahaina injection well case, but here is some information regarding our facility.
At the Lahaina Wastewater Reclamation Facility, the county receives and treats approximately 4 million gallons per day of wastewater. This recycled water is highly disinfected and treated with ultraviolet light. In the dry season, about half of the water is used on land for irrigation, such as agriculture or golf courses. The unused portion is disposed of into four deep injection wells.
From there, the recycled water mixes with groundwater and is diffused underground. In its slow movement underground, the recycled water mixes with other sources of inputs to the groundwater and undergoes certain chemical processes, such as denitrification (reduction of nitrogen). A tracer study done in 2012 confirmed that the recycled water-groundwater takes from three months to four years for the water to travel from the wells approximately half a mile underground, filtered through soil and rock, and spread over a 2-mile stretch of shoreline.
We all share the same goal: an ocean that is safe for marine life and our people. I want to mahalo all the environmental groups, attorneys and the Supreme Court for addressing this issue and protecting our wildlife. My administration remains committed to recycling as much wastewater as possible and continuing to work with the Department of Health and other regulators.
* “Our County,” a column from Maui County Mayor Michael Victorino, discusses county issues and activities of county government. The column usually appears on the first and third Saturdays of the month.