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.

See the polluters Maui County has aligned themselves with

On July 19, 11 different groups filed friends of the court briefs in the Lahaina injection wells Supreme Court case. These groups include former EPA Administrators, 13 states, a Native American tribe, craft brewers, and clean water advocates.

On the other side, Maui County has aligned themselves with Republican states and polluters across the country. The dirtiest industries like oil, gas, pipelines, mining, and factory farms are supporting Maui in hopes that they will be able to evade water protections by pumping their pollution into pipes in the ground.

Read Earthjustice’s press release here and take action at bit.ly/lahaina.

Enviros Urge Justices To Uphold 9th Circ. Groundwater Ruling

By Juan Carlos Rodriguez

Law360 (July 12, 2019, 10:52 PM EDT) — Green groups on Friday urged the U.S. Supreme Courtto uphold the Ninth Circuit’s holding that Clean Water Act permits may be required for pollution sources that discharge contaminants via groundwater.

The Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation and West Maui Preservation Association said Congress clearly intended the act to cover unpermitted pollution discharges that “actually and foreseeably” reach navigable surface waters. They said Maui County, which is challenging the Ninth Circuit’s ruling, relies on a misguided reading of the act to support its argument that permits are not required for such discharges.

The U.S. Environmental Protection Agency, which has authority to approve the National Pollutant Discharge Elimination System permits at issue, agreed in an amicus brief supporting Maui County that the Ninth Circuit decision should be overturned.

But the environmental groups said Friday, “Either the county’s or EPA’s view … would open a substantial loophole in the CWA, allowing polluters to achieve indirectly what they cannot do directly: discharge pollutants from point sources into navigable waters without a permit.”

The groups sued Maui County in 2012, accusing it of violating the act by not obtaining a NPDES permit for sewage wastewater injection wells that discharged pollution into the Pacific Ocean via groundwater.

In their Supreme Court brief, the groups cited the CWA’s provision that prohibits “any addition of any pollutant to navigable waters from any point source,” and said the county’s wells are point sources, the waste the wells discharge are a pollutant, and the Pacific Ocean is a navigable water.

“The introduction of the effluent to the Pacific is an ‘addition’ of pollutants ‘to’ those waters. And that addition comes ‘from’ the county’s point-source wells: The wells are both the pollutants’ point of departure and a factual cause of their addition to navigable waters,” the brief said.

And the groups said the Clean Water Act does not just cover pollution that enters navigable waters directly from point sources, “without any intermediate means of transmission.”

They disputed the county’s assertion that the CWA only applies when a point source pollutes “directly” to navigable waters and the EPA’s argument that would exclude discharges that occur through groundwater.

“The County of Maui’s attorneys have done a wonderfully Orwellian job of professing support for the Clean Water Act while simultaneously trying to blow a hole in the law that protects our nation’s rivers, lakes and oceans,” Earthjustice attorney David Henkin, who represents the green groups, said Friday.

The Ninth Circuit in February 2018 sided with environmental groups that argued Maui violated the act by not obtaining a federal NPDES permit for the sewage wastewater injection wells.

Maui County argued in its brief that the CWA clearly gives states sole permitting authority over those sources, and asserted that if the circuit court’s ruling is allowed to stand, it would result in a vast expansion of federal power contrary to the act’s intent.

According to the county, the high court should look to two Sixth Circuit rulings, also handed down last year, that split from its sister circuits’ findings and held that a point source permit is not required where pollution reaches navigable waters via a nonpoint source.

There has been some discussion among newer Maui County Council members about whether to settle the lawsuit, which would take it out of the justices’ hands, but there’s been no official action on that yet.

A bill was introduced that would give the council authority to settle the suit, as that power currently lies with the mayor, but it has not emerged from the Governance, Ethics and Transparency Committee, and Maui County Council Supervising Legislative Attorney David Raatz said Friday it’s unclear if and when the bill might proceed.

The Maui mayor’s office and the U.S. Department of Justice did not respond to requests for comment Friday.

The high court in February agreed to hear the case. Oral arguments are scheduled for Nov. 6.

The Hawaii Wildlife Fund, Sierra Club, Surfrider Foundation and West Maui Preservation Association are represented by David L. Henkin and Janette K. Brimmer of Earthjustice, Scott L. Nelson of Public Citizen Litigation Group and Amanda C. Leiter of American University Washington College of Law.

Maui County is represented by Elbert Lin, Michael R. Shebelskie, Colleen P. Doyle and Diana P. Martin of Hunton Andrews Kurth LLP and county attorneys Moana M. Lutey and Richelle M. Thomson.

The federal government is represented by Noel J. Francisco, Malcolm L. Stewart, Judy B. Harvey, Matthew R. Oakes and Frederick H. Turner of the Solicitor General’s Office, Eric Grant, Allon Kedem and David S. Gualtieri of the DOJ’s Environment and Natural Resources Division and Matthew Z. Leopold, David Fotouhi and Lauren T. Maher of the EPA Office of General Counsel.

The case is County of Maui v. Hawaii Wildlife Fund et al., case number 18-260, in the U.S. Supreme Court.

–Editing by Nicole Bleier.

Stop pollution of Maui coral reefs

Honolulu Star-Advertiser, 2/27/2019 

The Clean Water Act (CWA), which took shape during the early 1970s, bans the dumping of pollutants directly into surface waters, ranging from wetlands and rivers to oceans. Whether the federal law’s prohibition also should apply to indirect dumping that has the same effect is a matter expected to go before the nation’s highest court later this year. 

At the center of the debate is Maui’s Lahaina Wastewater Reclamation Facility, which injects a daily average of at least 3 million gallons of treated sewage into groundwater that flows toward the ocean. 

Last March, the 9th U.S. Circuit Court of Appeals ruled that Maui County has been violating the CWA since the facility’s operations started in the early 1980s. Maui County appealed to the Supreme Court; if it wins, the impacts for water pollution rules nationwide could be huge. 

That would be an unfortunate outcome: In Maui, the scientific evidence demonstrates that treated sewage dumped into injection wells is seeping into the ocean, killing coral and triggering algae blooms. 

In 2011, amid growing concerns about proliferating algae blooms that smother reefs and other degradation, University of Hawaii scientists initiated a tracer-dye study that conclusively linked treatment- plant discharge with tainted near-shore waters. And last year, U.S. Geological Survey research found that discharge from injection wells — positioned about a half-mile from the shoreline — has been drastically undermining the area for years. 

The 9th Circuit’s opinion against Maui rightly concluded: “At bottom, this case is about preventing the county from doing indirectly that which it cannot do directly.” Under federal law, a National Pollutant Discharge Elimination System (NPDES) permit is needed to dispose of the wastewater in ocean waters. 

In 2018, another appellate court interpreted the law in the opposite way. In a Kentucky case, pollutants from coal ash retention ponds seeped into groundwater that fed waterways. The 6th Circuit Court ruled that only pollutants added directly to navigable bodies of water are regulated under the law. 

The split in opinion helped pave the way for the U.S. Supreme Court to take up the Maui case, in which the county asserts that because it’s not directly pouring pollutants into near-shore waters, no NPDES permit is needed. 

The county contends that from its perspective, West Maui’s coral is generally in healthy condition, with sites including Kahekili — downstream from the wastewater facility — tagged as “pristine.” The county maintains that groundwater regulation should be handled as a “home-rule” issue as pollution- related challenges vary from place to place. 

The U.S. Environmental Protection Agency’s acting administrator, Andrew Wheeler, seems to support this take. And it’s a given that if the Supreme Court reverses the 9th Circuit’s ruling, supporters of President Donald Trump’s efforts to roll back the Obama era’s stepped-up environmental regulation likely will cheer a perceived correction of federal overreach. 

But in this case, amid growing concerns tied to climate change and ocean acidification, weaker federal law would open a door to potentially accelerating pollutionrelated troubles here and elsewhere. That would be a step backward for environmental stewardship, but it’s a possibility due to the current makeup of the high court. 

Earthjustice, which is representing Maui community groups — Hawai‘i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation — in the ongoing legal debate, has rightly pointed out that we could see industries quickly assuming effective free rein to discharge pollutants indirectly into the nation’s waterways. 

It’s disappointing that Maui is continuing to side-step the pollution problem. If politics prevails over science in a ruling from the Supreme Court, heightened vigilance in safeguarding Hawaii’s near-shore ecosystems from landbased sources of pollution will fall squarely on county and state governments. 

Lahaina Injection Wells Lawsuit: Enough Already! Just Fix the Problem

The Honolulu Star-Advertiser agrees – Enough already, Maui County! Stop trying to appeal the lawsuit and start fixing the problem!

 

Call/Email the Mayor & Maui Council Chair and say “ENOUGH ALREADY! Stop wasting the public’s money to defend illegal injection wells in West Maui. Spend the money instead on fixing the problem!”

Mayor Alan Arakawa
270-7855
Mayors.Office@co.maui.hi.us

Council Chair Mike White
270-5507
mike.white@mauicounty.us

 

Background: $3 million down the toilet – Enough Already!

The County paid a main land law firm $3 million to defend its actions of injecting treated wastewater into the ocean without proper state oversight. The County was joined in its fight by the Association of American Railroads, the American Iron and Steel Institute, the American Petroleum Institute, the National Mining Association and the Fertilizer Institute.

The County lost the original court case but kept filing appeals – in total they’ve spent $3 million and lost all 4 times in court. Sierra Club Maui Group was one of 4 plaintiffs in the case, and just this month the County lost ANOTHER appeal.

The County COULD have used that money to build the infrastructure we need to support water recycling. Instead, now they’re talking about filing MORE appeals. Will this be another $3 million of public money down the toilet?

Call or email the mayor and council chair and say: Enough Already – Stop spending the public’s money on lawsuits and just fix the problem!

Campaign and meme from Tamara Paltin and http://www.savewestmaui.com
Mahalo!

Federal Court Rules That Maui County Is Violating Clean Water Act

County subject to millions in penalties for illegal discharges from Lahaina injection wells

Honolulu – On Friday, May 30, 2014, the federal district court in Honolulu ruled that Maui County’s use of injection wells at its Lahaina Wastewater Reclamation Facility violates the federal Clean Water Act.  The court concluded that most of the three to five million gallons of wastewater the County dumps into the wells each day flows through groundwater and emerges offshore of popular Kahekili Beach Park in West Maui, where the wastewater-laden groundwater “substantially affects the physical, chemical, and biological integrity of the ocean water.”  The court will impose civil penalties for the County’s violations following a hearing set for March 17, 2015.

“To discourage polluters like Maui County from using our oceans as their dumping ground, the Clean Water Act imposes stiff penalties,” explained Earthjustice attorney David Henkin.  “Maximum penalties in this case already exceed $100 million, and the meter is ticking at a rate of over $100,000 per day.  It’s time for the County to stop dragging its feet and fix this problem.”

The court’s ruling came in a case Earthjustice filed in April 2012 on behalf of Hawai’i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association, and Sierra Club-Maui Group.  The lawsuit followed years of unsuccessful efforts to resolve the issue out of court.

“For years before we went to court, the plaintiffs and other concerned Maui residents had meeting after meeting with the County and tried to convince our public officials to take seriously the threat to our marine environment and public health from the Lahaina injection wells,” said Lucienne de Naie, Conservation Chair of Sierra Club Maui.  “It’s frustrating that they refused to listen to us, forcing us to go to court, but we are happy the judge understands the gravity of the situation.”

In ruling for the community groups, the court found that wastewater-laden groundwater entering the ocean at Kahekili has “exceptionally elevated” levels of nitrogen and phosphorous, and that the addition of nutrients from the County’s facility “can accelerate the growth of fleshy seaweed and algae, which can compete with, outgrow, and kill coral.”  The court noted that “the coral reefs near the submarine seeps have been subject to algal blooms that have led to a decline in coral cover from 55% to 33% between 1994 and 2006.”  The court further found that the County’s discharges into the ocean are “substantially more acidic than the rest of the ocean’s nearshore water,” lower in salinity and dissolved oxygen, and “substantially elevated” in temperature.

“With elevated nutrients, acidity and temperature, combined with its low salinity and oxygen, the County’s wastewater is, sadly, a perfect recipe for destroying Kahekili’s coral reefs,” explained Hannah Bernard of Hawai’i Wildlife Fund.  “The dramatic decline of this once pristine marine environment is just heartbreaking.  The County needs to take immediate steps to save what’s left.”

“Destroying coral isn’t the only problem the injection wells cause,” said Angela Howe of Surfrider Foundation.  “The County’s wastewater contains chemicals like pharmaceuticals and fire retardants that also travel from the injection wells into nearshore waters, threatening local residents and tourists swimming and surfing at Kahekili Beach.”

“With West Maui in a near permanent drought, the County should be re-using the millions of gallons of wastewater from the Lahaina facility to meet the needs of golf courses, resorts, and other developments, not dumping it onto our reefs,” said Lance D. Collins of West Maui Preservation Association.”

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Earthjustice is a non-profit, public-interest, environmental law firm.  The Mid-Pacific 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 Hawai’i and the Mid-Pacific, and does not charge clients for its services. For more information, visit www.earthjustice.org<http://www.earthjustice.org>.

Hawai’i Wildlife Fund is a Hawai’i non-profit corporation based on Maui and Hawaiÿi Island that is committed to the protection of Hawai’i’s native wildlife through research, education and conservation.  For more information, visit www.wildhawaii.org<http://www.wildhawaii.org>.

The Surfrider Foundation-Maui Chapter is the local Maui chapter of the national Surfrider Foundation, a non-profit environmental organization founded in 1984 that is dedicated to the protection of oceans, waves and beaches.  For more information, visit http://ww2.surfrider.org/maui/.

West Maui Preservation Association, founded in 2004, is a Hawai’i non-profit corporation committed to preserving, protecting and restoring the natural and cultural environment of West Maui.  For more information, visit www.savewestmaui.com<http://www.savewestmaui.com>.

Sierra Club-Maui Group, a member group of the national Sierra Club, raises awareness of environmental issues and works towards preserving the environment on the island of Maui.  For more information, visit www.hi.sierraclub.org/maui<http://www.hi.sierraclub.org/maui>.

David Henkin
Staff Attorney
Earthjustice Mid-Pacific Office

earthjustice.org

EPA Agreement Finalized For Full Disinfection of Lahaina Wastewater Facility

After much foot-dragging, nay-saying and denial, Maui County finally agreed to clean up Lahaina wastewater going into injection wells after being threatened by a Maui Group Sierra Club lawsuit.

Read about it at Maui Now