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.

West Maui Reefs Horribly Degraded

These underwater pictures from the reef off of Kahekili Beach Park show the extent of the damage suffered in the last several years. Runoff, global warming and El Nino events have added to the attack on this precious and irreplaceable resource, but a significant contributor is the release of treated wastewater high in nitrogen and phosphorous through the Lahaina injection wells. These “nutrients” stimulate the growth of algae that smother the corals.

Despite the scientific studies showing the damage and decline in the coral reef off of Kahekili Beach Park, along with what everyone using that shoreline area can see with their own eyes, Maui County Mayor Mike Victorino made a press release August 28, 2019 which said:

“West Maui ocean water quality has improved since 2009, …,” Perry said. “If ocean conditions were negatively impacted by recycled water seeping into the ocean from the injection wells, then reef conditions would continue to deteriorate. They have not.”

All photos courtesy of Caitlin Maratea, owner of Banyan Tree Divers in Lahaina.

 

Lahaina Injection Wells Frequently Asked Questions

What You Always Wanted To Know About The Lahaina Wastewater Injection Wells Case

1. The County Releases Wastewater Into The Ocean?

After pressure from the community and from the EPA, the Lahaina Wastewater Reclamation Facility (LWRF) disinfects the wastewater with ultra-violet light to kill bacteria that are harmful to people. However, the resulting effluent is high in nitrogen, phosphorous and other chemicals that are harmful to the coral reef and to ocean life.

2. The Treated Wastewater Doesn’t Stay In The Injection Wells?

The treated wastewater is mostly dumped into large, unlined basins called “injection wells”. The EPA traced the path of the wastewater from the injection wells and proved definitively in a study published in 2013 that about half the effluent finds its way into the ocean at Kahekili Beach Park.

3. How Much Wastewater Are We Talking About?

While some treated wastewater is used for irrigation, 3-5 million gallons/day are dumped into the injection wells at the LWRF.

4. How Bad Can It Be To Release Treated Wastewater Into The Ocean?

A US Geological Survey study of the effects of the wastewater release on the coral reef at Kahekili Beach Park, published in 2017, reported that “sustained, nutrient rich, lower pH submarine groundwater discharging onto nearshore coral reefs off west Maui lowers the pH of seawater and exposes corals to nitrate concentrations 50 times higher than ambient. Rates of coral calcification are substantially decreased, and rates of bioerosion are orders of magnitude higher than those observed in coral cores collected in the Pacific under equivalent low pH conditions”.

5. Seriously, Can You See The Difference In The Coral?

From 1994 to 2006, coral cover at the Kahekili Marine Reserve declined by 40%.

6. Fixing the Problem Must Be a Top Priority for the County?

Community and environmental organizations urged the County to address the problems for many years but the discussions did not lead to tangible changes or commitments. In 2012, the community and environmental organizations filed suit against the County under the Clean Water Act (CWA), which requires that a special permit – NPDES – be acquired if pollutants are to be released into the ocean. Both the Hawai‘i-based district court and the Ninth Circuit appeals court have ruled in favor of clean water, ruling that the County cannot freely pollute the ocean via injection wells and are required to get a permit under the Clean Water Act. Yet Maui County has spent $4.3 million in taxpayer money to fight the law, money that could have been used for water reuse to keep the contaminated water off of West Maui’s reefs.

7. Why Are the Trump Administration And The Major US Polluters Supporting The County On This Issue?

Having lost in all court hearings so far, the County is taking the case to the Supreme Court rather than settling the affair and addressing the problem with the threat to the reefs and ocean life. The Trump EPA has been aggessively weakening or removing dozens of long-standing protections of our air, land and waters. Allowing the fossil fuel companies to dump toxic waste into the ground near rivers, lakes or oceans would save them money but harm the health of people, plants and animals who depend on safe and clean water.

8. If The County Gets An NPDES Permit, Will I Have To Get One Too?

The County claims that if it has to get a permit to release 3-5 million gallons/day of treated wastewater into the ocean, then 12,000 cess pool owners on Maui will also have to get an NPDES permit. However, individual properties are not regulated through NPDES permits, which are intended for industrial scale polluters like coal-fired power plants. The Hawaii Department of Health has also explicitly clarified that they will not require NPDES permits of cess pool owners.

9. What Are The Plaintiffs Asking Of The County?

The Sierra Club Maui Group, Surfrider Foundation, Hawaiʻi Wildlife Fund and West Maui Preservation Association – the organizations that sued the County – want the County to settle the case as agreed on in 2015, putting at least $2.5M towards diverting and reusing the wastewater and completing its application for an NPDES.

10. What Are The Downsides To Settling The Lahaina Injection Wells Case?

There are no downsides, only benefits, to settling the case and putting the money into solving the problem instead through better processing of the wastewater and then reusing it for irrigation in West Maui. The reefs win, the residents and visitors who enjoy the waters of West Maui win, the County wins in reputation as a leader in ocean protection rather than a destroyer of reefs.

11. Will It Cost $800M To Fix The Problem?

Mayor Victorino has said that it will cost $800M to eliminate the ocean pollution. The number was composed by adding up several fantasy numbers: $125M each to build “ocean outfalls” for all wastewater facilities on Maui (this is something no one wants or needs), huge numbers for fines and penalties (there won’t be any, other than the $2.5M in the settlement to spend on wastewater handling improvements + $100k fine to the federal government), and some exaggerated numbers for the actual work to be done. The mayor says he is “committed to 100% reuse” of the wastewater; that means he knows that it will not cost $800M to do it.

12. What Is Happening Now With The Case?

The Maui County Council voted on 9/20 to settle the case. The decision was in the form of a “resolution”, something that only requires a single vote. It cannot be “vetoed” by the mayor. However, the mayor is balking at his constitutional responsibility to tell Corporation Counsel to execute the settlement and withdraw the case from the Supreme Court. Corporation Counsel is refusing to withdraw the case, acting as advocates for the Trump administration instead of as advisers to their clients, the County Council.