December 2019 Vol. 74 No. 12


Justices Mull Clean Water Act’s Reach to Wastewater Permits

The U.S.Supreme Court seems uncertain about how to decide a Hawaii case that may determine if a sewage treatment plant needs a federal permit to send treated wastewater deep underground.

The case – Maui v. Hawaii Wildlife Fund – is being watched closely because it may decide about the reach of the landmark Clean Water Act (CWA). A verdict is expected in the case by June.

Justices heard arguments in November about whether a sewage treatment plant needs a federal permit when it sends wastewater deep underground, instead of discharging the treated flow directly into the Pacific Ocean. Studies have found the wastewater soon reaches the ocean and has damaged a coral reef near a Maui beach.

Several justices appeared to be searching for a compromise between environmental groups on one side, and the Trump administration and the local Hawaii government on the other. Trump’s Environmental Protection Agency (EPA) recently reversed the agency’s long-standing position.

Sewage plants and other polluters must get
a permit under the CWA when pollutants go through a pipe from their source to a body of water. The question in this case is whether a
permit is needed when the pollutant first passes through the soil or groundwater.

Maui injects 3 million to 5 million gallons a day of treated wastewater into wells beneath the Lahaina Wastewater Reclamation Facility, which sits about a half-mile from the Pacific shoreline. Environmental groups in Hawaii sued Maui after studies using dyes to trace the flow showed more than half the discharge from two wells was entering the ocean in a narrow area. They won a ruling from the federal appeals court based in San Francisco.

The justices seemed concerned that a ruling for Maui would provide what Justice Stephen Breyer called a “road map” for polluters to evade federal permit requirements.

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