Forty-seven years ago, a bipartisan Congress overwhelmingly passed the Clean Water Act to address a dirty water crisis brought on by decades of neglect. Conditions had gotten so bad the Cuyahoga River in Ohio infamously burned, fumes from Maine’s Androscoggin River peeled the paint off nearby buildings, and Lake Erie, once a highly productive fishery, was so choked with waste it was virtually dead.
We are once again at risk of taking clean water for granted. Only this time, the threat comes from right here in Hawaii, where the County of Maui has been injecting its treated sewage into underground wells near the Pacific Ocean since the 1970s. Predictably, much of the sewage flowed through groundwater into the ocean. The wastewater has degraded coral reefs and threatens Kahekili Beach Park and the Humpback Whale National Marine Sanctuary. This is not beneficial to anyone in Hawaii, no matter what island they live on.
The Clean Water Act was specifically passed to prevent just this type of pollution. Congress created a system where polluters, including large publicly owned wastewater treatment systems, would have to obtain permits that ensured that they cleaned up their waste before discharging it into nearby waters.
As three former federal Environmental Protection Agency heads — who served under both Democratic and Republican presidents — wrote to the U.S. Supreme Court, the Clean Water Act has always been interpreted to cover discharges that traveled through groundwater into surface waters, including the ocean.
And this only makes sense. Otherwise, it would be all too easy for potential polluters to evade regulation by turning their pipe to a spot just short of the water where the pollution would inevitably flow, letting groundwater carry the pollution the extra distance.
The Supreme Court is effectively being asked to poke holes in the landmark law, ignoring common sense and undermining its intent. The results would be devastating across the country.
In a further twist, buoyed by public outcry to protect the county’s treasured ocean waters, reef, and beach, the Maui County Council voted that the case be settled and the county accept its obligations to clean up its waste. But Maui’s mayor has decided to ignore this directive.
If the Supreme Court rules for the county, it would, as Justice Stephen Breyer noted, create a roadmap for polluters across the country to avoid the Clean Water Act. Conceivably, any factory, hog farm and sewage plant in the country could start dumping their waste underground near — but not directly in — rivers, lakes and coastlines. The result: Dirty water putting people and wildlife at risk nationwide.
Just as troublingly, the current Environmental Protection Agency has signaled that it may separately try to use legal acrobatics to make it easier for industries and municipalities to do just that.
EPA and others contend that the states can fill the regulatory gaps, but it was the failure of the states to protect rivers, lakes and oceans that made the passage of the Clean Water Act necessary. And the EPA is undertaking efforts to curtail the power of states to protect waters when proposed projects may threaten water quality or aquatic habitat. So there is reason to question whether states will, or even will be allowed to, fill this growing gap.
The Cuyahoga River did not catch fire overnight. It took years of neglect for that to happen. It is unfortunate that a case originating here in Hawaii is being used in an effort to poke holes in the Clean Water Act, which has so effectively addressed water pollution for decades. Like groundwater, a law full of holes does not hold back pollution and keep our waters clean, our wildlife thriving, or our communities safe.
