Rules and Regs: Hawaii Injection Well Case May Not Reach the Supreme Court

Also in this month’s regulations update, a Michigan county votes to end point-of-sale septic inspection requirements

Rules and Regs: Hawaii Injection Well Case May Not Reach the Supreme Court

With an important wastewater case less than a month from its hearing before the U.S. Supreme Court, there is a dispute between Maui County, Hawaii, supervisors and the mayor about whether the case will be settled.

The County Council voted 5-4 on Sept. 21 to settle the lawsuit brought by Hawaii Wildlife Fund and other groups. The lawsuit claimed the county’s disposal of treated wastewater with deep injection wells violates the Clean Water Act. Dye tests performed several years ago found pollution seeping from the wells into groundwater and then into the Pacific Ocean.

“My administration will review its options,” Mayor Michael Victorino tells The Maui News. If the court extended the Clean Water Act so it reached groundwater, permits would become a nightmare, he says.

And if pollution going through groundwater can be regulated under the act, it also opens the possibility that onsite systems would be regulated. Federal regulations now differentiate between large-scale and small-scale discharges of stormwater, attorney Erin Ryan told Pumper in March. She is an expert in water law and holds the Elizabeth C. & Clyde W. Atkinson professorship at the Florida State University College of Law. Something similar might happen with onsite systems. For example, if small systems are treated differently, a single small onsite system on several acres might be exempt from regulation, but a subdivision in which every home is served by an onsite system might be considered a single-source subject to regulation under the Clean Water Act.

As this column was prepared, Victorino had not announced a decision on the settlement. When the Maui County Council discussed the settlement, Ed Kushi, the first deputy corporation counsel, said both the council and mayor had to agree on whether to settle because doing so involves key functions of both branches of government: the council’s responsibility to deal with fiscal matters and the mayor’s responsibility for terms and conditions.

If the mayor also decides to settle the case, then it would be pulled from the Supreme Court calendar, Ryan tells Pumper in a recent email. In that case, the Clean Water Act would cover pollution moving through groundwater, but only in Hawaii, Alaska, Washington, Oregon, California, Arizona, Nevada, Idaho and Montana. Those states comprise the 9th U.S. Circuit Court of Appeals district, and that court agreed with Hawaii Wildlife Fund that Maui’s wells violated the act. Other states would continue to deal with different interpretations of the act based on what their federal appeals courts have said.

A continued lack of clarity in how to interpret the act may embolden someone to push a similar case through the appeals process, Ryan writes. “It seems clear that the Maui litigants were not eager for the current (Supreme Court) to weigh in, but others with conflicting interests would be very happy to prompt consideration by what they presume is a new majority willing to curtail Clean Water Act jurisdiction.”

Oral arguments before the Supreme Court were scheduled for Nov. 6.

Suffolk County installing nitrogen-reducing septic systems

Suffolk County, New York, executive Steve Bellone said in September that the county next year will install 1,200 nitrogen-reducing onsite systems. This would more than double the number of advanced systems installed monthly under the current grant program, he says, according to the newspaper Newsday.

The county, which occupies the eastern end of Long Island, has been troubled with near-shore pollution coming in part from onsite wastewater systems. Thousands of homes in the county rely on cesspools for treatment, and the county and some municipalities have passed laws requiring the use of nitrogen-reducing systems in new construction and for significant remodeling. 

Michigan county votes to end point-of-sale septic inspection requirements

After an internal debate that lasted 10 months, Kalkaska County, Michigan, commissioners voted 6-1 in September to end the county’s point-of-sale septic inspection program and a well-inspection program. The programs are operated by District Health Department No. 10.

People in favor of retaining the program told commissioners they want the government to help protect water quality. Opponents complained that the need for inspections delayed land transfers.

Because the program is through the District Health Department, the boards of all 10 counties in the health district must approve Kalkaska County’s request to withdraw. All but one county, Manistee, has done that. News reports say the Manistee County Board will take up the issue at its meeting in late October. Commissioners in Manistee recently worked to close loopholes in their inspection program. 

East Hampton considering changes to septic replacement rebate program

The East Hampton (New York) Town Board is considering an increase in the rebate program for replacement of onsite wastewater systems with nitrogen-reducing systems.

Financial support for homeowners would increase to a maximum of $20,000 — an increase of about $5,000 — and would allow the town to pay contractors directly instead of requiring property owners to pay costs upfront and then apply to the town for reimbursement. Changing from a rebate program to a direct-payment grant program will remove the possibility that homeowners need to report rebate money as taxable income, reports The Southampton Press

Clallam County postpones septic system fee decision

The Clallam County (Washington) Board of Health tabled a proposed septic system fee until next year and recommended the county draw on its reserves to support a state-mandated septic program.

The health board had proposed a fee of $13 annually to fund 2 1/2 environmental health staff positions. The county is supposed to oversee regular septic system inspections, make sure failing systems are repaired, and maintain accurate records. But those tasks have never been fully funded even though the county adopted its program in 2007, reports the Sequim Gazette.

On the day before the fee was tabled, the county board ordered the hiring of one environmental health person because the county had received a $240,000 grant.

Only one member of the health board voted against tabling the fee. Bob Lake told the other board members that by telling the county to use reserves, the cost of the program would be partly borne by people who don’t have septic systems instead of only by those who do.

Clallam County occupies the northern shore of the Olympic Peninsula from the Pacific Ocean almost to the mouth of Puget Sound.

Faulty septic systems suggested culprit for bacteria in Whipple Creek

For some years, people have wondered about the reason for high bacteria counts in Whipple Creek.

“Traditional measures of bacteria, they tell you that bacteria is there, but they don’t tell you what it’s from,” Jeff Schnabel, stormwater infrastructure manager with Clark County Public Works tells The Columbian newspaper of Vancouver, Washington.

Advanced molecular testing found markers of human intestinal bacteria in five tributaries of the creek, which empties into the Columbia River. That result suggests failing septic systems are releasing bacteria, the newspaper says.

County ordinances require gravity septic systems to be checked every three years by a county-certified inspector. Pressure systems must be inspected every two years, and advanced systems require annual inspections.

Chuck Harman, onsite septic program manager for Clark County Public Health, says his department would use the results to work with property owners.

Clark County is on the north bank of the Columbia River, opposite Portland, Oregon.

Wastewater company avoids disposal fees in deal with utility board’s chairman

Two municipal officials were accused of allowing a wastewater company to avoid fees for disposal of septage through the municipal wastewater system.

Rodman Lucas owns Aqua Clean Toilet Systems and is also operations manager of the Wrightstown (New Jersey) Municipal Utilities Authority. A report from the state comptroller alleges that Lucas made an agreement with Mayor Thomas Harper, who is also chairman of the authority’s board, to dump septage into a sewer manhole. By doing that Lucas avoided about $21,000 in disposal fees, says the Philadelphia Inquirer in a news story.

Between 2015 and 2018, Aqua Clean dumped more than 565,000 gallons of septage into the municipal system, the comptroller’s report says. When he was subpoenaed by the comptroller’s staff, Lucas refused to answer questions by asserting his Fifth Amendment rights, but he and the municipal authority later said the authority benefitted from the arrangement because the authority borrowed tools and equipment from Lucas in exchange for the disposal.

The comptroller’s office has no power to prosecute the men but has referred the matter to the New Jersey attorney general. 


Comments on this site are submitted by users and are not endorsed by nor do they reflect the views or opinions of COLE Publishing, Inc. Comments are moderated before being posted.