County of Maui Seeks New Discovery Following Supreme Court Loss

Mon Jul 13th, On Litigation, by

In April 2020, the U.S. Supreme Court ruled in a majority 6-3 vote in Hawaii Wildlife Fund et al v. County of Maui, that the County of Maui could no longer inject sewage or recycled water into local groundwater through Lahaina injection wells under the Clean Water Act (“CWA”). The groundbreaking case changes the way groundwater is interpreted under the CWA and establishes a new test.

Previously, CWA covered only “navigable waters” but the high court determined that, in some circumstances, the act could apply to groundwater. The court articulated a new test, stating “when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge,” the source of pollutants would require a National Pollutant Discharge Elimination System (“NPDES”).

Following their loss in the Supreme Court, Maui County went to the U.S. Magistrate Judge Kenneth Mansfield to submit new discovery. Maui County argued against the court’s new test and claimed that for the test to be effective more extensive research must be presented before it can determine whether wells require a NPDES permit. Maui argued that there was evidence that was overlooked pertaining to external factors, such as “material makeup and identifiable environmental forces,” that contribute to contaminating navigable waters other than their wells/groundwater sources.

According to Maui, because only two out of the four wells tested positive for contaminating navigable waters when using original tracer dye tests, the new test is not substantial enough to determine whether a NPDES permit is required. Furthermore the county states the record lacks “sufficient investigation, data collection, empirical observation, and scientific analysis and conclusions quantifying and/or even qualifying levels of diffusion, chemical change, and the comparative identity of the groundwater seeps with the recycled water injected at the well sites.”

In response, environmental groups (Hawai‘i Wildlife Fund, Sierra Club, Maui Group, Surfrider Foundation, and West Maui Preservation Association) are arguing that the County had plenty of time to collect new discovery and provide it in their testimony while on trial, considering the Hawaii Wildlife Fund et al v. County of Maui case first opened in 2012, and reopening discovery for new evidence would be counterproductive. The environmental groups explain that the Court is limited in terms of granting new discovery as well, considering that the deadlines to submit new discovery passed years ago. They also assert that the County of Maui’s claims are redundant because the Court already illustrated the “seven factors ‘that may prove relevant (depending upon the circumstances of the particular case)’ to determine if a discharge via groundwater is the functional equivalent of a direct discharge.” Of the identified seven factors, transit time and distance traveled would be upheld as the most critical factors.

The environmental groups argue that the County of Maui “has no basis to claim it lacked adequate opportunity to develop expert testimony regarding any of those factors during the last round of proceedings in this court and, thus, cannot satisfy the ‘good cause standard’ to reopen discovery on remand.”

The California Environmental Attorneys at Bick Law LLP will continue to monitor the County of Maui case and related environmental litigation across the country.

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