WATER LAW
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An Indirect Regulation of Groundwater:
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In June 2013, the U.S. Environmental Protection Agency (EPA), the Hawaii Department of Health, the U.S. Army Engineer Research and Development Center, and researchers at the University of Hawaii conducted a study on three of the four wells to gather data on the hydrological connections between the injected recycled water and the coastal waters. The study involved placing tracer dye into the wells and monitoring submarine seeps off the nearby beach. The study concluded that a hydrogeologic connection exists between two of the three wells tested and the nearby coastal waters. Eighty-four days after injection, tracer dye introduced into two of the wells began to emerge from the seafloor along North Kaanapali Beach, near Kahekili Beach Park, about a half-mile southwest of the treatment plant. According to the study, 64 percent of the treated wastewater injected into the two wells eventually makes it to the ocean. In 2012, after prior reports that recycled water from the Lahaina treatment plant was discharging to the ocean, four environmental advocacy groups filed suit under the CWA against the County. The lawsuit alleged that the discharges to groundwater were effectively to surface waters and subject to the CWA’s NPDES program. The Federal District Court for the District of Hawaii agreed, holding that that the groundwater was acting as a conduit for the discharges, making them within the CWA’s NPDES requirements. The County appealed to the Ninth Circuit Court of Appeals. There, a three-judge panel agreed with the lower court, holding that any time there is a “fairly traceable” connection between a discharge to groundwater and discharges from the groundwater to a surface water, the original discharge will be subject to the CWA’s NPDES program. The court’s decision represents a major departure from past application of the CWA. The plain text of the CWA provides that any discharge of a pollutant from a point MUNICIPAL WATER LEADER
PHOTO COURTESY OF FLICKR/RODRIGO SALA.
n February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit issued a highly anticipated decision in Hawai’i Wildlife Fund v. County of Maui, No. 15-17447 (9th Cir. Feb. 1, 2018). The court held that the County of Maui (County) is required to obtain a Clean Water Act (CWA) permit to dispose of recycled water via discharge into groundwater that is hydrologically connected to the ocean. The case has broad implications for water supply and wastewater treatment agencies across the West because it would require certain types discharges to groundwater to be regulated under the CWA’s National Pollutant Discharge Elimination System (NPDES)—thereby importing all the CWA’s surface water–related requirements (including the ability for private citizens to bring enforcement lawsuits) into the groundwater setting. The discharges at issue in the Ninth Circuit case emanate from the Lahaina Wastewater Reclamation Facility on the northwest coast of Maui (between Lahaina and the Kapalua airport). The facility is the principal municipal wastewater treatment plant for West Maui. It receives approximately 4 million gallons of sewage per day from a collection system serving approximately 40,000 people. That wastewater is treated and used as recycled water for irrigation throughout the area, including on nearby golf courses. Excess recycled is injected into wells at the facility. While the County initially considered building an ocean outfall to dispose of excess recycled water directly into the ocean, it decided against that because of potential harm to coastal waters. Instead, the County installed two wells in 1979 as part of the original plant design, and two more were installed in 1985 as part of an expansion project. The County uses the wells to dispose of a large portion of the recycled water it produces at the plant, approximately 3 to 5 million gallons per day.
