Comment on Water Use and Development Plan from Jeffrey Parker

To:
Maui County Board of Water Supply                                                                       8-17-20
Chair Shay Chan Hodges

From:
Jeffrey Parker
Director
Coalition To Protect East Maui Water Resources
P.O. Box 170
Haiku, HI 96708
808 572-8569

Subject: Water Use and Development Plan
August 20, 2020 Public Meeting

Dear Chair Hodges and Members,

As Director of the Coalition To Protect East Maui Water Resources – one of the “Consent Decree Parties”, I am writing to express our concern that the BWS may not be aware of all conditions of the Consent Decree and our settlement with the County.  Specifically how the CD relates to the portion of the WUDP dealing with the proposed Haiku well field  (now said to be in the “Koolau Aquifer Sector”)   Those conditions, which we all agreed to, are not fully satisfied in the current version of the WUDP.  We believe that BWS should recommend that the WUDP not be accepted until all pertinent conditions of the Consent Decree are satisfied.

  1. From Chapter 14 of the current Draft WUDP: “Since 2003 there have been multiple assessments and cost-benefit studies conducted to explore groundwater development outside the Consent Decree area in the Haiku Aquifer …….”

From the Consent Decree:  4.2 Before any new project is planned by the County of Maui to develop groundwater in the agreed- upon portion of the East Maui Region, the County will undertake a Cost/Benefit Study of the surface and groundwater resources available in the Central Maui Region, Upcountry Maui Region and East Maui Region and conduct a rigorous Cost/Benefit analysis, including the evaluation of economic and environmental factors, of developing and transmitting these water resources. This Study shall address planning for stream restoration in the agreed-upon portion of the East Maui Region.

None of the 3 studies mentioned in Chapter 14 of the WUDP comply with the agreements in the Consent Decree.  None of the 3 compare all the geographical regions listed in the CD. Likewise, none of them look at environmental impacts.  The Draft WUDP does not indicate that 16 Haiku deep wells will be part of any comprehensive study.

  1. From Consent Decree: Stream Restoration.10.1 The County agrees that as long term agricultural water needs are reduced, a stream restoration program will be studied, developed and initiated by the County. As such, the County agrees that one component of any plan or program to develop further water resources in the agreed-upon portion of the East Maui Region must include the study, development and initiation, as may be applicable, of a stream restoration program in the agreed-upon portion of the East Maui Region.

We think there has been ample time for the County to begin studying and developing a stream restoration program for streams in the Haiku aquifer area. None of these streams was part of the East Maui Water commission decision that is often referred to in the Draft WUDP.  These are cherished Haiku streams like East and West Kuiaha, Awalau and others. There is no reason for the DWS to postpone this important effort until the “Koolau Well Plan” is far along, and drilling of the wells is ready to commence.  A valid WUDP will detail the progress being made by the County on a stream restoration program.

  1. From the CD: Use of Data From Pumping of Two Hamakuapoko Wells  9.1 Actual data obtained from the pumping of the two Hamakuapoko Wells shall be employed  preparing the Cost/Benefit analysis referenced above and in deciding whether to begin planning any further project to develop groundwater resources in the agreed-upon portion of the East Maui Region.

To my knowledge, ongoing study of pumping of the two Hamakuapoko Wells did not happen.  The language of the CD is clear:  this data must be used in “deciding whether to begin planning any further project”.  In our view, there has been plenty of time for the County to gather this data for use in a new WUDP. Monitoring data from these is not included in the WUDP, that we could find.

  1. The WUDP clearly anticipates the removal of Haiku water and sending it to Central and

South Maui to “meet planned growth”.  Yet the residents of Haiku have never been consulted.  No public meetings have been held with Haiku residents during the preparation this WUDP.  A public meeting zoom conference should be held, through the auspices of the Haiku Community Association, or other local organization.  Additionally, to my knowledge the Consent Decree Parties also have not been consulted.

Thank you for your consideration of our concerns.

Aloha
Jeffrey Parker

 

The Troubling Consequences of Trump’s Environmental Rollbacks

Submitted July 30, 2020 as an Op-Ed to The New York Times

The Troubling Consequences of Trump’s Environmental Rollbacks

By Kayli Ottomanelli, studying social environmental science and sustainability at the University of Mary Washington, and an intern for the Rappahannock Group of the Sierra Club.

In less than 100 days Americans will vote in the fall presidential election. This election will have a far greater impact on peoples’ lives than many voters realize. Since Donald Trump assumed the presidency in 2017, he has made it his top priority to dismantle many of the environmental protections established under the Obama administration. The New York Times (NYT) has kept a running count of every environmental law Trump has modified or reversed during his tenure (1). The count now stands at approximately 100 environmental rollbacks (1). What the article will not tell you, however, is that these rollbacks will cause over 79,700 premature deaths annually and put another 73.6 million Americans at risk of serious injury or illness (2-8, 11-16). If Trump were elected to a second term, these deaths and debilitating illnesses will continue to climb precipitously.

Many might wonder how such a shockingly large death count could have been overlooked and unreported. The answer? Until now, we have only reviewed the costs of individual environmental rollbacks, not the cumulative effects of every action combined. In some cases, the consequences of an environmental rollback have been easy to identify due to widespread coverage by the media. For example, Trump’s replacement of the Clean Power Plan made dozens of headlines when the EPA predicted the new policy would result in 1,400 premature deaths (7).  It reappeared in the news when the Natural Resources Defense Council found this number to be closer to 5,200 premature deaths annually (8). Other reversals have received less attention. Case in point, the new EPA regulations on lead and copper in drinking water doubled the time allotted to replace poisonous lead pipes (3). That made fewer headlines despite increasing the risk of lead poisoning for the 18 million Americans whose water systems still contain high levels of lead (11). It can be difficult to comprehend the collective effects of 100 individual actions on our health and livelihoods. Regardless, actions do accumulate and the consequences are far worse than we ever imagined.

The death count we face now is not due to benign neglect or sheer ignorance; the Trump administration is well-aware of the costs that accompany their policy changes. Vermont Law School Professor, Patrick Parenteau, has noted that in virtually every environmental rollback, Trump’s E.P.A. has acknowledged in the fine print that their legislative changes will cause increased pollution, resulting in an enormous surge in health problems and deaths (2). Donald Trump is willfully exchanging American lives for the favor of industry leaders. The Declaration of Independence proclaims that every American has the right to the blessings of liberty: life, liberty, and the pursuit of happiness. Upon entering office, Trump took an oath promising to preserve, protect, and defend the Constitution and the blessings of liberty and prosperity it guarantees to citizens of the United States. Despite this, Trump has taken upon himself to revoke the unalienable rights of 79,700 Americans in order to repeal “unnecessary” regulations that burden businesses (1). By “burden,” he means laws that interfere with company profits, regardless of the impact on everyday citizens. By failing to act for the American people, Trump is not performing his duties as President and should not be considered for a second term.

Trump has defended his environmental policy decisions by citing their benefits to the economy. EPA Administrator Andrew Wheeler has boasted that the Trump Administration’s environmental rollbacks have saved American businesses $6.5 billion (10). However, a thriving economy means little if it is built upon the misfortune of those it is intended to benefit. According to Kip Viscusi, an economist at Vanderbilt University, government agencies currently value a statistical human life at $10 million (9). Using that valuation, Trump has cost the nation $797 billion from his environmental rollbacks alone. However, the death tally from our president should also include his failure to effectively address the Covid-19 pandemic. Millions sickened, nearly 150,000 dead, and the count continues to climb day-by-day. How many more Americans must sicken and die due to Trump’s environmental policies and gross mismanagement of the pandemic? If Trump remains president, he will continue to cost the nation billions with his deliberate disregard for human life.

Trump’s presidency has caused this nation irreparable damage. He has only prolonged the slow death of the oil, gas, and coal industries; while dramatically reducing the resiliency of our lands and waterways in the process. Our nation will never be great as long as we have a President that favors power and profit over human well-being. To prevent further unnecessary death and suffering, every effort must be made to defeat Trump in the upcoming presidential election. Every vote cast for Donald Trump will further endanger the lives of American citizens. This is what hangs in the balance in this November’s presidential election.

 

 

References

  1. Albeck-Ripka, Livia, Kendra Pierre-Louis and Nadja Popovich. “The Trump Administration Is Reversing 100 Environmental Rules. Here’s the Full List.” 15 July 2020. The New York Times. July 2020.
  2. Davenport, Coral and Lisa Friedman. “E.P.A. Weakens Controls on Mercury.” 16 April 2020. The New York Times. July 2020.
  3. Davenport, Coral. “New E.P.A. Lead Standards Would Slow Replacement of Dangerous Pipes.” 10 October 2019. The New York Times. July 2020.
  4. Environmental & Energy Law Program . “Petroleum Refinery Sector Rule (NESHAPs / NSPS).” 11 December 2018. Environmental & Energy Law Program . July 2020.
  5. Environmental Defense Fund. “National clean car standards.” n.d. Environmental Defense Fund . July 2020.
  6. Environmental Integrity Project. “Environmental Protections on the Chopping Block.” n.d. Environmental Integrity Project. July 2020.
  7. Freidman, Lisa. “Cost of New E.P.A. Coal Rules: Up to 1,400 More Deaths a Year.” 21 August 2018. The New York Times. July 2020.
  8. Friedman, Lisa. “E.P.A. Finalizes Its Plan to Replace Obama-Era Climate Rules.” 19 June 2019. The New York Times . July 2020.
  9. Gonzalez, Sarah. “How Government Agencies Determine The Dollar Value Of Human Life.” 23 April 2020. NPR. July 2020.
  10. Jackson, Derrick Z. “Derrick Z. Jackson: EPA’s new water rule is a mockery of science and the Clean Water Act.” 27 January 2020. Environmental Health News. July 2020.
  11. Layne, Rachel. “Lead in America’s water systems is a national problem.” 21 November 2018. CBS News. July 2020.
  12. Myers, Jessica. “Cronkite News: Plan to ‘revive’ uranium mining called unneeded, unwanted by advocates.” 09 June 2020. Cronkite News. July 2020.
  13. NYS Attorney General . “Attorney General James Sues Trump Admin For Gutting Safety Protections For Chemical Accidents.” 29 January 2020. NYS Attorney General . July 2020.
  14. Occupational Safety & Health Administration . ““Crystalline Silica Exposure” Health Hazard Information for General Industry Employees.” 2002. United States Department of Labor . July 2020.
  15. Storrow, Benjamin. “Trump’s EPA Made It Easier for Coal Plants to Pollute Waterways.” 24 September 2018. E&E News. July 2020.
  16. Walker, Joro. “Environmental Rollbacks by the Trump Administration Threaten Westerners’ Health and Way of Life.” 19 May 2020. Western Resource Advocates. July 2020.

The Lāhaina Wastewater Injection Wells – A Timeline

1973
Maui County’s environmental review of proposed plant and injection wells acknowledged “the effluent will eventually get into the ocean.”

1979
Lahaina Wastewater Recycling Facility (LWRF) installed original  two injection wells, Wells 1 and 2.

May 1982
Maui County begins discharging treated wastewater from LWRF into Wells 1 and 2.

1985
LWRF added Wells 3 and 4 and began additional discharges from Wells 3 and 4. Prior to December 2013, almost none of the effluent discharged from the injection wells was UV disinfected. About one of every seven gallons of groundwater entering the ocean at Kahekili is LWRF effluent.

1991
County’s environmental review for LWRF upgrades concedes that “[t]reatment plant effluent contributes various constituents, including but not limited to, suspended solids, dissolved oxygen, and nutrients such as nitrogen and phosphorous to the ocean.”

1992
HDOH warned County of Maui (COM) that, if the wells were linked to pollution in the ocean off West Maui, “a critical issue will focus over the compliance requirements of the [CWA]” – Clean Water Act.

Nov. 8, 1999
County of Maui enters into a consent decree  to settle United States et al. v. County of Maui, Civ. No. 98-00622 SOM which required the County to take certain steps to meet federal water quality standards at the Lahaina Plant to meet its UIC permit requirements.

2004
West Maui Preservation Association (WMPA) started doing more specific water quality testing in the area. WMPA got biannual general water quality testing of the waters started.

2007
Researchers surveyed the waters around Maui, using nitrogen isotopes associated with human waste (δ15N) in marine algae to identify locations of significant sewage inputs. “δ15N” is a nitrogen isotope ratio used to distinguish between naturally-occurring nitrogen or nitrogen from fertilizer, and nitrogen derived from sewage. SER 351-52 (¶ 15). Naturally-occurring nitrogen and nitrogen from fertilizer have low levels of δ15N, while sewage from a treatment plant has notably higher levels.  Results published.

February 12, 2007
In a letter dated Feb 12, 2007, Alexis Strauss, director for the EPA Pacific Southwest Region’s Water Division contacted Maui County. “Throughout the [Hawaiian] islands, it’s vital that wastewater systems be closely monitored, and very well-maintained, to and very well-maintained, to prevent sewage spills to Hawaii’s streams and ocean waters.”

Sept. 2008
DIRE (Don’t Inject, REdirect) coalition asks for EPA hearing on Lahaina Wastewater Treatment Plant UIC permit renewal. At the hearing, which was held in November 2008, the DIRE Coalition urged the County to secure a Clean Water Act permit for use of the LWRF injection wells.

November 6, 2008
EPA holds hearing and public listening session on Lahaina Plant – 75 attend.

June 2009
EPA Issues PUBLIC NOTICE OF INTENT TO ISSUE AN UNDERGROUND INJECTION CONTROL (UIC) PERMIT FOR THE LAHAINA WASTEWATER RECLAMATION FACILITY.

2009
US Geological Survey (USGS) issues its report on detection of wastewater plumes in nearshore waters in Kihei and Lahaina concluding that “injected wastewater plumes were detected at both locales”. USGS study confirmed the earlier, “convincing detection of the effluent plumes offshore” at Kahekili using algal δ15N surveys.

Sept 21, 2009
COM Wastewater responded to EPA’s Albright: “County of Maui continues to object that EPA is exceeding its jurisdiction and statutory authority under the Safe Drinking Water Act and the State Department of Health requirements in imposing the proposed permit conditions. We continue to be unaware of any legal basis for permit limits on anticipated effects of nitrogen on the coastal environment (even if there were evidence in the record that such effects would occur).“

The letter further observes that the UIC permit is meant to insure the injection wells do not affect drinking water and have nothing to do with ocean water. The cost to implement the remedies required by EPA would require major plant modifications and the extreme cost would  outweigh the  benefits.

Dec 8, 2009
DIRE Coalition reps, EJ and EPA Region 9 rep meet with Mayor Tavares.

December 20, 2009
Members of the DIRE Coalition sent a letter to Mayor Tavares, memorializing and following up on the discussion from December 8 meeting

January 2010
EPA ordered Maui County to conduct sampling, monitoring and reporting necessary “to determine whether [Defendant] is in violation of the [CWA’s] requirements.”

March 10, 2010
David Albright , Manager, Region 9 EPA Ground Water Office followed up with an order requiring COM to secure a water quality certification from the State of Hawai‘i pursuant to CWA section 401. EPA stated that Lahaina injection well discharges “may discharge into navigable waters, therefore County’s UIC permit renewal is subject to section 401”.

2010
Marine Pollution Bulletin publishes article on result of the 2009 research done by Dailer et al  “Using d15N values in algal tissue to map locations and potential sources of anthropogenic nutrient inputs on the island of Maui, Hawai‘i, USA “. The research shows that “Macroalgal blooms of Hypnea musciformis and Ulva fasciata in coastal waters of Maui only occur in areas of substantial anthropogenic nutrient input “  The study showed high levels of the d 15N in the waters off the Lahaina facility.

The National Oceanic and Atmospheric Administration (“NOAA”) has identified COM Lahaina injection wells as a “hotspot” for nutrients and other pollutants and designated them a “high” priority for pollution prevention measures.

April 2010
Kahului Wastewater Plant challenge at Maui Planning Commission.

May 7, 2010
COM applies to State DOH for a Section 401 WQC Permit as part of their “proposed UIC permit”. Application is received by DOH on June 24, 2010.

February 3, 2011
Mayor Arakawa met with representatives of DIRE Coalition – Irene Bowie, Robin Knox, Tim Lara, and Jeff Schwartz – and representatives of the County – Rob Parsons, Steve Parabicoli, and Eric Nakagawa (Wastewater Management Construction Manager). The Mayor opened the meeting by saying that he would like to “eliminate injection wells to the extent possible” but that it was necessary to start with practical steps that could be taken to increase wastewater reuse and reduce reliance on injection wells. He also said getting to 100% wastewater reuse and complete elimination of injection wells may not be possible (for reasons explained more below).

He indicated that Lahaina is the “easiest first target”, but involves lots of steps.

Feb 8, 2011
DOH responds that the COM Section 401 WQC Permit application is incomplete.

June 28, 2011
Groups file Notice of Intent to sue for violations of Clean Water Act.

August 5, 2011
Maui County Council Approves EPA Settlement on Lahaina Injection Wells

In a unanimous vote, the council gave final approval to a bill authorizing the proposed settlement with the U.S. Environmental Protection Agency over allegations that inadequately treated sewage injected into the ground at the Lahaina Wastewater Reclamation Facility is a violation of the federal Safe Drinking Water Act. The county would increase the amount of treatment the wastewater receives, under the negotiated agreement. The agreement required higher standards of disinfection at the facility.

Lucienne de Naie of the Sierra Club, Maui Chapter, urged support of the settlement.

“It’s been a long time coming to get the EPA and the county wastewater department on the same page, so we can get the water quality we deserve,” she said.

August, 2011
US Environmental Protection Agency joins state and federal agencies in launching an investigation to track suspected pollution from the Lahaina Wastewater Reclamation facility. “The tracer study will help us pinpoint wastewater movement from the Lahaina injection wells,” said Alexis Strauss, director of the Water Division for the EPA’s Pacific Southwest Region. “The goal is to evaluate the potential impact of the facility’s discharge on the coastal waters.”

September 2011
The Environmental Protection Agency required the County to disinfect all of the wastewater pumped into the injection wells at the Lahaina facility by the end of 2013.

Late 2011
Tracer studies show effluent reaching nearshore waters

April 16, 2012
Lawsuit filed.

May 9, 2012
County filed motion to dismiss.

June 27, 2012
Plaintiffs requested documents from DOH.

July 2, 2012
Plaintiffs requested documents from COM.

July 31, 2012
The Honorable Susan Oki Mollway held a hearing on Maui County’ motion to dismiss.

August 2012
The district court denied Maui County’ motion to dismiss. The court upheld Citizens’ allegations that Maui County’s “discharge of wastewater into the [LWRF] injection wells causes pollutants to flow into the ocean” and found that Maui County is violating the CWA.

August 7, 2012
COM contacted Plaintiffs to inquire whether plaintiffs would be willing to participate in an early settlement conference. Plaintiffs agreed this would be in the best interests of all. “by avoiding the time, expense and burden of further litigation and by directing defendant’s resources to improve the quality of the marine environment of West Maui and increase reuse of increasing scarce fresh water, rather than have funds sent to the federal treasury in the form of civil penalties.”

August 8, 2012
The Court issued an order denying Maui County’s motion  to dismiss.

Aug 20, 2012
Plaintiffs file confidential settlement conference statement with Magistrate Judge Barry M. Kurren.

Aug 27, 2012
First Settlement Conference w/ Judge Kurren.

Oct. 3. 2012
Settlement Conference with Judge Kurren. Judge Kurren asked the County to seriously assess its willingness to sign a consent decree admitting its Clean Water Act liability to both avoid the time and expense of litigating the issue, and to also open itself up to the possibility of more room for negotiation on reuse. Patrick Wong agreed to discuss the issue of a possible consent decree with the County Council’s Policy Committee Chair and to try and put it on the agenda for Policy Committee consideration. In the mean time, the County said that it has plans to file an application for an NPDES permit with DOH by November 15, 2012. We are scheduled to talk with Judge Kurren again on November 20 to assess where the County is at in terms of its willingness to sign a consent decree admitting its liability. If the County does not have anything meaningful to say in terms of moving settlement forward in November, we will be prepared to file a Motion for Summary Judgment with the court on the issue of the County’s Clean Water Act liability.

Nov, 2012
COM files a NPDES permit application for Maui County.

November 26, 2012
COM corporate council meets with County Council’s policy committee about the County’s willingness to stipulate to Clean Water Act liability when we meet with Judge Kurren.

Dec 6, 2012
Settlement conference with the County

Dec 21, 2012
EPA released preliminary results from an ongoing investigation by federal and state agencies to evaluate the fate of effluent from the Lahaina Wastewater Reclamation Facility near the Kaanapali coast of Maui.

According to the interim report one of two tracer dyes introduced in the wells was detected at the coastal seeps, located roughly one-half mile southwest of the Lahaina facility and between 3 and 25 meters from shore. The dye detection establishes a hydrologic connection between the Lahaina facility’s treated wastewater injection wells and the monitored submarine seeps

May 2013
Settlement conference with County and Judge Kurren.

Judge found the proposed settlement timeline acceptable- settlement conference set for December 2, 2013,

  •  if we’re able to reach a settlement or get close to reaching one by that date, we have a time scheduled to sit down and discuss it with him.
  •  use the next few months to put a draft settlement agreement in writing and negotiate terms
  •   if the Anaergia project goes forward and the parties are able to agree on settlement terms, we’ll be ready to finalize the agreement as soon as possible.
  • As we discussed during our conference call on Thursday, we’re also going to use the next few months to:

try to reach agreement with the County on supplemental environmental projects that would substitute for civil penalties (e.g., tying the Wahikuli cesspools into the sewer system, increasing the use of greywater and/or recycled water, etc.).

Judge is available to meet with us before December 2, if we hit an impasse in our settlement discussions and need his assistance, as well.

We set a deadline for filing dispositive motions for March 17, 2014 in the event that we are not able to reach agreement on settlement by the end of this year, and we have the option of filing a Motion for Summary Judgment sooner than March 17 if we reach a point where settlement negotiations no longer seem productive.

June 10, 2013
Draft of potential settlement that would have three basic parts:

  1. The county would agree to complete one or more Supplemental Environmental Projects (SEP) in lieu of paying fines for past violations of the Clean Water Act.
  2. The County would agree to end all use of injection wells at Lahaina plant (except for emergency situations, which would be clearly defined) by a “date certain”. 2015 is the date under discussion.
  3. The County would agree that if it continued to use injection wells past the “date certain”, they would agree to pay daily fines.

July 25, 2013
Maui News story: final results of a University of Hawaii study on the impacts of injection wells at the Lahaina wastewater treatment plant “conclusively demonstrate” a connection between the wells and their flows to nearshore waters.

Dec 20, 2013
County’s lawyers are willing to recommend this settlement to the Council (the lawyers have not seen the precise language re: the R-1 SEPs, so there may be some word-smithing to do, but we have agreement in principle.

Late December 2013
Corporate council informs us County Council will not accept settlement agreement. Settlement discussions end.

March 2014
After 17 months of settlement negotiations lead to no resolution, Plaintiffs file for Summary Judgement.

May 4, 2015
Mandatory settlement conference.

May 2014
The court granted summary judgment that unpermitted discharges from LWRF Wells 3 and 4 violate the CWA. The district court concluded “[a] party is liable under the [CWA] if, without an NPDES permit, it indirectly discharges a pollutant into the ocean through a groundwater conduit.” The district court noted the “exceptionally extensive” record before it, with EPA’s tracer study pinpointing the locations where LWRF pollutants enter the ocean through groundwater, allowing precise measurements of the pollutants’

January 2015
Based on separate briefing, the court granted summary judgment that Maui County’s unpermitted discharges from LWRF Wells 1 and 2 are illegal. At the hearing on the present motions, the County admitted that pollutants discharged at the LWRF are reaching the ocean, but disputed the specific quantities stated in the Trace[r] Dye Study.  They did not specify why they believed the amounts were incorrect.

January 2015
EPA wrote a letter to DOH and COM concluding the UIC permit conditions “would not function as NPDES permit requirements, and are unlikely to achieve compliance with the [CWA].”

April 17, 2015
Plaintiffs reached out to see if COM would want to reopen settlement discussions. Instead, COM filed another appeal, which was denied.

June 2015
COM summons plaintiffs reps to be deposed as part of its appeal of the US District Court rulings that it is in violation of the CWA.

June 26, 2015
US District Court held Defendant (Maui County) is not immune from civil penalties because of a lack of fair notice that an NPDES permit was required;  Court denied CoM request for summary judgement on penalties:  “Having been found liable under the Clean Water Act, the County seeks summary judgment in its favor with respect to potential penalties, arguing that this court cannot assess statutory penalties against the County because the County lacked fair notice that an NPDES permit was required.”

The court ruling stated that “the County’s argument also ignores the fair notice of violations that Plaintiffs, as citizens, gave the County before filing this action.  This is a citizens’ lawsuit, a vehicle expressly countenanced by the Clean Water Act that allows private parties to protect Hawaii’s waters by suing over Clean Water Act violations in the absence of protective action by public  officials.”

Plaintiffs, for their part, seek partial summary judgment regarding the method of calculating the civil penalties that may be assessed against the County. See ECF No. 176. Plaintiffs ask this court to determine the maximum possible number of the County’s violations of the Clean Water Act by counting the number of days within the limitations period that effluent from each injection well was discharged and then totaling the results for all four wells. The court awards summary judgement to the plaintiffs:  stating

“Plaintiffs are entitled to summary judgment as to the method of calculating the maximum number of violations by the County under the Clean Water Act. That maximum is calculated by first counting the number of days within the limitations period that effluent from each injection well was discharged, then totaling the figures for the four wells.”

Feb 2016
Plaintiffs filed answering brief for COM appeal of Court’s decision in favor of Plaintiffs.

“Every State permit expressly notes Defendant’s obligation to comply with the NPDES permit requirements and associated regulations in Hawai‘i Administrative Rules chapter 11-55. EPA’s UIC permits similarly state that compliance with the permit’s terms “does not constitute a defense to any action brought under … any other common or statutory law,” such as the CWA.

Maui County inaccurately suggests HDOH has concluded “the Lahaina UIC permit can act as an ‘equivalent control document,’” substituting for an NPDES permit.. HDOH, however, merely “is considering” whether to treat the UIC permit as an “equivalent control document.”  In the two years since HDOH made that noncommittal statement, it has yet to make a decision. (HDOH will notify Maui County “once a decision is made”).

March 2015
County submitted a draft NPDES permit application and fact sheet to DOH.

July 2015
Plaintiffs and COM enter into a Settlement Agreement and Order re Remedies without any admission of fact or law. The settlement allows the County to continue its court appeals, if it so chooses, but does not require them to do so.

Feb 1, 2018
A panel of the 9th US Circuit Court of Appeals ruled that the County of Maui’s Lahaina Wastewater Reclamation Facility has been violating the US Clean Water Act since the facility was first put into operation in the early 1980s.  The ruling upholds a 2014 decision by the US District Court for the District of Hawai’i.

March 30, 2018
The 9th US Circuit Court of Appeals 1) denied a petition for rehearing en banc; and 2) issued an amended opinion affirming the district court’s summary judgment rulings finding that the County of Maui violated the Clean Water Act when it discharged pollutants from its wells into the Pacific Ocean, and further finding that the County had fair notice of its violations.

May 21, 2018
EPA comment period expires for new proposed rules that limit any regulation of pollutants that are not directly discharged to “waters of the US.”

Aug 27, 2018
Maui County filed a petition to appeal 9th Circuit court decision to US Supreme Court.

October 23, 2018
Earthjustice files brief in Opposition to Supreme court hearing the Lahaina case.

October 1, 2018
Long list of Republican states and municipal wastewater districts file Amicus briefs on Lahaina case, supporting position of Maui County and Trump administration’s EPA.

November 5, 2018
Maui Mayor requests and County Council approves additional $500,000 to compensate special council for the Lahaina case- raising limit to $4,300,000.

January, 2019
US Solicitor General for Trump administration submits a “Friend of the Court” brief supporting Maui County petition asking that the Lahaina case be heard at the US Supreme Court.

May 2019
Maui County Council Governance Efficiency and Transparency Committee hears testimony on lawsuit

Feb 19, 2019
US Supreme Court granted Maui County’s petition to review the 9th Circuit Court of Appeals findings on the Lahaina case.

April 26, 2019
EarthJustice, on behalf of four plaintiff community organizations present an updated Lahaina Wastewater Settlement agreement to Maui County Council, Mayor and attorneys.

June 2019
Maui Mayor proposes alternate settlement to replace $2.5 in fines (if the County lost the case in court) agreed to by Maui County in 2015 that would be applied to Lahaina reclaimed water reuse projects. Instead, he proposes to fund various reuse projects, regardless of Supreme Court outcome, with no timeline to complete the projects.

July 2019
Fourteen states, plus counties, tribes, businesses and three former EPA administrators file ”Amicus briefs” with US Supreme court supporting the position of Maui citizen groups that Clean Water Act covers discharges of polluted waters underground that reach an ocean, stream or river.

Aug 21, 2019
Town Hall on Lahaina Clean Water Act lawsuit held at Maui Ocean Center

Aug 28, 2019
Petition presented to County Council asking County Council to settle the Lahaina Wastewater lawsuit and withdraw case from US Supreme Court- signed by nearly 17,000.

Aug 2019
Maui County Council Governance Efficiency and Transparency Committee votes to recommend settlement of Lawsuit and withdrawal from US Supreme Court Appeal.

Sept 2019
Maui County Council votes to settle of Lawsuit and withdrawal from US Supreme Court Appeal

October 2019
County corporate counsel sends opinion to Council chair that Council has no authority to settle Lahaina lawsuit. Mayor Michael Victorino refused to execute the settlement.

November 6, 2019
US Supreme Court hears oral arguments on Lahaina case.

April 23, 2020
US Supreme Court rules that CWA applies to underground discharges of pollutants that are “functional equivalent” of direct discharges into ocean, lakes or rivers. Case sent back to 9th Circuit Court of Appeals to apply the Supreme Court’s newly-articulated legal standard.

Ideas for Solo Hiking – Waihe‘e Ridge Trail

In April/May 2020 we are required to keep a distance from people outside of our own household to slow the spread of the coronavirus COVID-19 and to allow our health and other services to take care of those who need help. Sierra Club has therefor canceled all organized outings until further notice. But we are still allowed to venture out on our own or with members of our own household for exercise such as walking, running, hiking, swimming and surfing. No need to stay cooped up at home all day. Just keep at least six feet between yourself and anyone you meet. This is the fifth of several posts on good places to go hiking/walking without a guide.


The first four installments of this series covered only trails with limited elevation change. The two most popular Maui trails in the State Nā Ala Hele system provide an uphill challenge along with some extraordinary views: the Lāhaina Pali Trail and the Waihe‘e Ridge Trail. This article is about the latter of the two.

The 0.9 mile Maluhia road up to the trail head starts immediately opposite (mauka) of the Mendes Ranch on Kahekili Highway. The road ends at a parking lot with space for about 25 cars. It is often almost full. There is overflow parking at the turnoff from Kahekili Highway.

To the top of the trail and back is about 4 miles, with an elevation gain of 1,650 feet.

The first segment of the trail is a straight, steep walk up concrete, but after that it is all forest and dirt trail. Extensive repairs and improvements were completed a couple of years ago, making it less likely you’ll slip and slide. The trail is very easy to follow and you will meet families, people walking dogs and also runners.

Most of the forest is non-native but there are native ‘ōhi‘a, ‘ōlapa, uluhe and ‘ie‘ie to be seen. The Mauna Kahalawai Watershed Partnership has been planting more native plants. There are brushes at the trailhead to clean your boots before and after hiking so you don’t risk spreading Rapid ‘Ōhi‘a Death or invasive species.

There are very impressive views at about the half-way point looking down to the valley and along the coast past Kahului. If you are lucky, you will have even more striking views from the top, but often that level is shrouded by clouds. Early morning is the most likely time to beat the clouds. On the way up you will see at least one waterfall.

Here is a map: https://bit.ly/waihee-ridge. The Kukuipuka Heiau is just below the trail head (leave your car in the trail head parking and walk down the road a short ways to the gate on the right).

Ideas for Solo Hiking – Upcountry

In April/May 2020 we are required to keep a distance from people outside of our own household to slow the spread of the coronavirus COVID-19 and to allow our health and other services to take care of those who need help. Sierra Club has therefor canceled all organized outings until further notice. But we are still allowed to venture out on our own or with members of our own household for exercise such as walking, running, hiking, swimming and surfing. No need to stay cooped up at home all day. Just keep at least six feet between yourself and anyone you meet. This is the fourth of several posts on good places to go hiking/walking without a guide.


The Makawao Forest Reserve hosts one of the more popular trails on Maui. It is easy to get to Upcountry, and a very pleasant destination for those seeking refuge from sun and heat near the coast because it is all shady. The Makawao Forest Reserve is an example of successful reforestation using non-native trees – mostly tropical ash, eucalyptus and cook pine. In today’s world the choice might have been native Hawaiian trees, but many of the benefits of reforestation have been accomplished. You will see indigenous ti plants and you may see indigenous maile and halapepe on your hike.

The Kahakapao Loop is just under five miles round-trip. It is well-marked and easy to follow as you can see in the pictures, with a gentle elevation gain of 1,165 feet. If the parking is full (at the end of Kahakapao Road), there is another parking lot accessible from the first parking lot, with a sign for horse trailers. The trail is shared with bike riders heading up-hill (they have dedicated trails for going down-hill). Here is a map:

https://bit.ly/kahakapao

Unfortunately there are many invasive plant species in the forest, including banana poka, strawberry guava and himalayan ginger. While they may be pretty to look at, they choke out native plants.


 

 

 

 

Ideas for Solo Hiking – Near Central Maui

In April 2020 we are required to keep a distance from people outside of our own household to slow the spread of the coronavirus COVID-19 and to allow our health and other services to take care of those who need help. Sierra Club has therefor canceled all organized outings until further notice. But we are still allowed to venture out on our own or with members of our own household for exercise such as walking, running, hiking, swimming and surfing. No need to stay cooped up at home all day. Just keep at least six feet between yourself and anyone you meet. This is the third of several posts on good places to go hiking/walking without a guide.


The Waihe‘e Coastal Dunes & Wetlands Refuge is a wonderful place to hike and explore, easy to get to from Central Maui. If it wasn’t for the current “social distancing” restrictions, it would be an excellent place for a picnic and spending the day as well. The refuge is open to the public.

Here is some information from the Hawaian Islands Land Trust (HILT), the custodians of the refuge:

Once slated for development as a golf course, the Waihe’e Coastal Dunes and Wetlands Refuge protects over 24 acres of coastal, spring-fed wetland, 103 acres of dune ecosystem, over 7000 feet of marine shoreline and more than 8 acres of riparian habitat for the recovery of native birds and native vegetation. The Land Trust took fee ownership of this very sensitive 277-acre site in 2004. Active restoration programs have enhanced critical native wildlife habitat, while preserving the area’s rich archaeological and cultural resources. Once populated with two thriving ancient Hawaiian villages, an extensive inland fishpond and several heiau (Hawaiian temples), the Waihee Refuge is among the most significant cultural sites in the state.

The Hawaiian Island Land Trust (HILT) aims to restore the Waihe’e Refuge to reflect the cultural and natural state it would have been in 200 years ago. This vision requires a lot of labor intensive work; when HILT (formerly Maui Coastal Land Trust) acquired the Waihe’e Refuge, roughly 95% of the plants found on the site were considered to be invasive species.

Restoring the Waihe’e Refuge to its historical, natural state will encourage native plants to take hold of the site again, thereby enhancing the natural resilience of the system. A healthy, more resilient landscape could buffer the impacts of climate change better than a damaged landscape could. The wetland is now up to 70% native species and native plants and birds have begun to naturally repopulate the surrounding landscape.

In testament to the returning health of the ecosystem, eight different endangered species have taken up residence at the Refuge in recent years. With the wetlands primarily cleared and habitat-appropriate plants now thriving, the area is host to many native Hawaiian bird species, including ae‘o (stilt), alae ke‘oke‘o (coot), koloa (duck), and even nene (goose).
Quiet and pristine, the Waihe‘e shoreline is a favorite retreat for endangered Hawaiian monk seals and nesting green sea turtles. Off the coast, the extensive reef is one of the longest and widest on Maui. It’s believed that this reef system provided excellent fishing in ancient times and it is, in fact, still a favorite among local fishermen today.

Parking for the refuge is either on the grass next to the refuge entrance or in the beach parking lot next to it. To get there, take Halewalu Road from Kahekili Highway. Halewalu Road leads to the Waiehu Golf Course and there are signs at the turnoff for both the golf course and the refuge. After 0.4 miles the turnoff from Halewalu Road to the refuge is on the left side. There is a sign. The road ends after 0.2 miles with the refuge entrance on the left and beach parking on the right.

This map shows a hike of 2.6 miles round-trip on level ground:

https://bit.ly/waihee-dunes

After entering the refuge, after 1,000 feet you will arrive at a fork in the trail. The old dairy is on the right and there is a map and interesting information about the refuge to read here. You can continue straight at this point, parallel to and close to the ocean, or you can take a detour off to the left as in the map. The detour takes you past areas where volunteers have been working on planting native Hawaiian plants and then rejoins the coastal trail. Either way, you will continue along the coastline until you reach the mouth of the Waihe‘e River. That is the turning point.

Coming back along the coastal trail, you can opt to walk for a stretch on the round rocks on the beach before continuing on the trail back to the parking area.

There has been very little trash the last few times I have been there, but please bring a bag just in case. The area most likely to have washed up plastic debris is the last beach before getting back to the parking area.