County of Maui, Hawaii v. Hawaii Wildlife Fund [SCOTUSbrief]
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County of Maui, Hawaii v. Hawaii Wildlife Fund [SCOTUSbrief]

This case involves a citizen suit brought
by the Hawaii Wildlife Fund and other organizations against the County of Maui. The Hawaii Wildlife Fund ultimately won in
both the district court and the Ninth Circuit. That makes the County of Maui the petitioner
in this case, and they are challenging the Ninth Circuit’s decision. The issue in this case is whether or not a
permit is required under the Clean Water Act when pollutants originate from a point source
but are conveyed to navigable waters by a non-point source, such as groundwater. We should care about this case because it
could lead to a substantial expansion of federal regulatory authority under the Clean Water
Act. The Clean Water Act is a federal statute which
governs the discharges of pollutants into navigable waters. The NPDES program, the National Pollutant
Discharge Elimination System, is designed to provide a permit system that allows certain
discharges into navigable waters. If you have a regular garden hose at home,
if you took that garden hose, and you attached a pollutant device to it, and you sprayed
some pollutants directly into a navigable water, that would be a point source. If instead you’re washing your car, and you
have a bunch of soap on your car, you get out the garden house, and you spray down the
car, that soap can get carried away into a drainage system, and that soap is a pollutant
that may end up in a navigable water. That kind of activity could be regulated under
the non-point source program, but it wouldn’t be regulated under the point source program
because you did not take your hose and directly inject a pollutant into the navigable water. This case started in 2012 with a citizens
suit provision claiming that the County of Maui was required to get an NPDES permit. Despite not having an NPDES program it- it
isn’t as though the County of Maui was not regulated. They indeed were regulated under a variety
of other permitting regimes, including under the Safe Drinking Water Act, the Coastal Zone
Act, and the Non-Point Source Control Plan of the state of Hawaii. The pollutants we’re talking about here is
wastewater, which is treated wastewater that is being introduced to groundwater from the
underground injection wells. The County of Maui is arguing that the only
way that something can be a point source for purposes of the NPDES program under the Clean
Water Act is if the source, the point source, is the means of transportation or means of
delivery of the pollutant into a navigable water. Those things which release into groundwater,
even though they eventually end up in navigable waters, are not discharges to navigable waters
because they were not delivered by a point source into the navigable water. The Hawaii Wildlife Fund’s argument, consistent
with the Ninth Circuit’s opinion, is that the statutory definitions do not limit themselves
to direct discharges, directly into navigable waters. That if you are a point source, you are a
point source, according to the respondents, and therefore you are regulated by the NPDES
program. If pollutants end up in a navigable water
that are fairly traceable to a point source, then that point source is the source of the
discharge into the navigable waters, according to the respondents. Now, this is not just about the County of
Maui. It’s about all wastewater treatment facilities
throughout the United States. In addition, there are a variety of other
activities that are similar enough to the wastewater treatment injection wells here
that they too could fall into the NPDES program if in fact the, uh, Ninth Circuit decision
is upheld.

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