By Steve Holmes
In an amicus brief filed in the Federal Court of Appeals 9th Circuit, EPA lawyers supported the decision by Judge Susan Mollway. Maui County appealed after losing to community groups including Sierra Club.
In the brief, the EPA agreed that point source pollutants entering groundwater that is hydrologically connected to the ocean fall under the Clean Water Act. Such discharges require what is called an NPDES permit. Maui County used injection wells near the coast without this permit and polluted coastal waters.
This ruling, if upheld, will have statewide ramifications. At Kealakehe, for instance, Hawai‘i County has dumped treated sewage into a disposal pit for 20 years. They have no NPDES permit for this. USGS studies show the discharges are reaching the ocean and causing harm. Sierra Club has asked EPA to step in with enforcement given their official legal position. A meeting with a deputy regional administrator has been scheduled for September in Hawai‘i as a result.
Another longstanding violation of the Clean Water Act exists in Na‘alehu and Pahala, where gang cesspools are still being used even though 2005 marked the federal deadline for their closure. No land has been secured for a treatment plant and Hawai‘i County plans to dispose of effluent in a way that would again go into groundwater that flows to the ocean. Sierra Club wants EPA to establish a consent decree that would get Hawai‘i County to do water reuse instead.