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Mayor Victorino wants the Supreme Court to upend the Clean Water Act

 

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.

 

Citizens Deliver Petitions Urging Maui County to Settle Lahaina Injection Well Case

For immediate release: Wednesday, August 28, 2019
Contact: Mahesh Cleveland, Earthjustice, (808) 599-2436 x6621

Citizens Deliver Petitions Urging Maui County to Settle Lahaina Injection Well Case

 

Wailuku, Maui, HI — Today, Sierra Club and the Surfrider Foundation, with support from Hawaii Wildlife Fund and West Maui Preservation Association, delivered two petitions to Maui County Council Chair Kelly King. The petitions, signed by over 15,000 Sierra Club and Surfrider Foundation members nationwide, urges the Maui County government to settle the legal case involving its Lahaina wastewater treatment plant and withdraw its appeal to the U.S. Supreme Court.  

The four community groups, represented by Earthjustice, filed a complaint with the Hawaii Federal District Court in 2012, alleging that Maui County was in violation of the Clean Water Act for its injection well discharges of municipal wastewater into the Pacific Ocean just offshore of Kahekili Beach Park in West Maui. The District Court agreed, and its decision was unanimously upheld by the Ninth Circuit Court of Appeals. Now, the case is before the Supreme Court, with oral arguments scheduled for November 6, 2019. The County has allied with the Trump Administration in claiming that the pollution of the ocean via groundwater is exempt from the Clean Water Act.  

“This case is being closely and eagerly watched by some of the worst polluters in the country,” says Earthjustice attorney Mahesh Cleveland. “The loophole the County seeks would allow industrial and municipal polluters to evade regulation under the Clean Water Act simply by moving their discharges just short of the shores of navigable waters, or disposing of pollutants via groundwater. A Supreme Court ruling in the County’s favor would have serious negative impacts on water quality nationwide.”

The citizen group plaintiffs, who urged the County to address the pollution at Kahekili Beach for four years before finally filing the 2012 citizen’s suit to enforce the law, still hope the County will address the problem locally at home, without pushing to create dangerous national precedent at the Supreme Court.

“We’re asking the County to fix this problem and give our reefs a chance to recover,” said Hannah Bernard, Executive Director of Hawaii Wildlife Fund. “The County’s refusal to protect an ecosystem in our backyard could jeopardize public health and clean water across the country. But it’s not too late for the County to do the right thing.”

The Sierra Club petition, signed by over 13,000 members across the United States, calls on Maui County to settle the case instead of pursuing the Supreme Court appeal, warning that “one wastewater treatment plant in Hawaii is not worth gutting the Clean Water Act.” The Surfrider petition, signed by another 2,547 citizens, asks the County government to “settle the Lahaina Injection Well Lawsuit and work with the community to find alternative long-term solutions that will protect Maui’s reefs and beaches, and ensure continued protections under the Clean Water Act for all Americans.”

The petitions, delivered this morning to County Council Chair King at her office in Wailuku, come in advance of a Council committee hearing scheduled for next Tuesday, September 3, when it is expected that the committee will hear testimony and vote on a resolution to settle the case and withdraw the appeal.

“The County’s claim that it can lawfully use groundwater as a sewer to carry millions of gallons of polluted wastewater from the Lahaina injection wells to the ocean each day is absurd,” said David Henkin, the lead Earthjustice attorney representing the community groups. “As both the Hawaiʻi district court and the Ninth Circuit have already concluded, the Clean Water Act flatly prohibits such threats to our nation’s waters. If need be, we will present this compelling case to the Supreme Court in November, but it shouldn’t have to come to that. The County still has time to change course and focus on solutions, rather than more litigation.”

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Earthjustice is a non-profit, public-interest, environmental law firm.  The Hawaiʻi regional office opened in Honolulu in 1988 as the Sierra Club Legal Defense Fund, and has represented dozens of environmental, Native Hawaiian, and community organizations. Earthjustice is the only non-profit environmental law firm in Hawaii and the Mid-Pacific, and does not charge clients for its services.

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.

Former EPA officials back greens in Clean Water Act case

Maui County, Hawaii, wastewater treatment facilities at issue in Supreme Court litigation. Warren Gretz/NREL

Ellen M. Gilmer, E&E News reporter Greenwire: Monday, July 22, 2019

States, tribes, scientists and former EPA leaders lent their support last week to environmentalists engaged in a high-stakes Supreme Court battle over federal water protections.

In a series of amicus briefs submitted Friday, the supporters argued that the Clean Water Act’s permitting program applies to pollution that takes an indirect route — through groundwater, for example — to federally regulated surface waters.

The case, County of Maui v. Hawai’i Wildlife Fund, is on the high court’s docket for November. The county says it should not need Clean Water Act permits for treated wastewater that travels from disposal wells through groundwater and into the Pacific Ocean.

Local green groups represented by Earthjustice went to court over the lack of permits years ago and eventually won at the 9th U.S. Circuit Court of Appeals.

The Supreme Court now has the chance to review that decision and issue a final ruling on the proper scope of the cornerstone environmental law.

The Trump administration is backing Maui in the case. In a reversal of its previous position, EPA announced earlier this year that it does not interpret the Clean Water Act as requiring permits for indirect discharges of pollution.

“Accepting the United States’ recent reversal in position would effect a significant rollback in regulatory enforcement of the CWA that has been in place for decades,” former EPA Administrators Gina McCarthy, Carol Browner and Bill Reilly told the high court.

They served in the Obama, Clinton and George H.W. Bush administrations, respectively. Other former EPA officials, including deputy administrators and regional heads, also submitted a brief detailing the agency’s 30 years of practice interpreting the law to include pollution discharges through groundwater.

“It has repeatedly expressed this interpretation in regulatory preambles, permit writers’ manuals, and other guidance documents,” they told the justices. “It has regulated such discharges in both general and individual [Clean Water Act] permits. It has brought enforcement actions against entities that make such discharges without a permit.”

The disagreement stems from the text of the Clean Water Act. The statute requires permits for pollution that travels from a discrete point source to a federally regulated wetland or waterway.

In briefs to the Supreme Court, lawyers have disputed whether “to” means a pollutant must go directly from a point source into the waterway to trigger the provision or whether it can move through groundwater or some other intermediary and still require permits.

States, cities, Republican lawmakers and others turned out in support of the narrower interpretation in briefs to the court in May. They said requiring permits for pollution that moves through groundwater would encroach on states’ regulatory turf (Greenwire, May 17).

Earthjustice lawyer David Henkin last week called that approach “Orwellian” (Greenwire, July 15).

In a recent Law.com post, Roy Englert Jr., who authored an amicus brief on behalf of Trout Unlimited, called the environmental groups’ position “expressly textualist,” something that should appeal to the Supreme Court’s conservative justices.

Others filing briefs on the environmentalists’ side included a slew of states, law professors, some municipal governments and other green groups.

“The bottom line is that the Clean Water Act’s protections should apply regardless of whether pollutants are discharged directly or indirectly into our nation’s waters,” California Attorney General Xavier Becerra (D) said in a statement.

Even craft beer brewers got involved in the debate, saying Maui’s preferred reading of the Clean Water Act would make the statute “trivially easy to evade.”

“Put differently,” a coalition including Allagash Brewing Co., Long Trail Brewing Co. and others wrote, “on the County and its amici’s theory of the Clean Water Act, a factory whose pipe sends pollutants flowing into a river can avoid regulation by moving its pipe twenty feet back and spilling pollutants into a gravel pit, such that groundwater carries precisely the same pollutants into precisely the same river.”

Oral arguments are set for Nov. 6.