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

Ma’alaea

Dear Officials,RE: 404 & 401 Permits for Expansion of Ma`alaea Harbor WQC No. 0000231/ Army Authorization No. CW 94-003The Sierra Club, with 4000 members statewide, strongly opposes the expansion of Ma`alaea as proposed in the most recent mitigation plan and discussed in the draft water quality certification. Issuance of these approvals would, among other things, (1) violate the law; (2) degrade water quality; (3) disturb threatened and endangered species; (4) destroy acres of coral reef habitat; (5) destroy surfsites; and (6) destroy a sandy beach. The mitigation plan is simply unacceptable.

The Army Corps cannot allow this project to proceed because of its significant damaging economic and environmental impacts.

The environmental impacts are mentioned below and in the various environmental documents that the Corps has prepared. Further evidence of significant adverse effects will be presented by others in their testimony.

The Department of Health is required by law to follow its own administrative rules. Every provision of Hawai`i Administrative Rules 11-54 is a water quality standard that cannot be violated. By law, DOH must do more than examine the numeric standards.

A. Violation of 11-54-01.1

Waters whose quality are higher than established water quality standards shall not be lowered in quality unless it has been affirmatively demonstrated to the director that the change is justifiable as a result of important economic or social development and will not interfere with or become injurious to any assigned uses made of, or presently in, those waters. 11-54-01.1

The proposal lowers water quality. The July 1994 FSEIS and the internal staff determination (p. 4) note water quality within the Harbor will be degraded. They also note the recreational uses of the area will be interfered with — and in fact will be wiped out: the sandy beach and at least one surfsite will be destroyed.

B. Violation of 11-54-03(c)(1)

By law, the marine waters just outside the existing harbor are Class AA. 11-54-06(a)(2)(A) and 11-54-06(b)(2)(A) specifically define as Class AA, “all waters in state or federal fish and wildlife refuges and marine sanctuaries” and “all open waters in the refuges or sanctuaries established by the U.S. Fish & Wildlife Service or the National Marine Fisheries Service.”

BACKGROUND

After 3 (’55, ’59 & ’79) attempts to create a safe harbor at Ma`alaea, the Army Corps of Engineers has proposed a plan for construction of a 620 ft breakwater, and blasting of a new channel. The plan is a relic of 1960’s planning and holds losses for nearly every group of harbor users, surrounding residences and businesses.

Since the Army Corps plan is based on models, there is no guarantee that their $10 million plan will actually effectively block the south swells that threaten harbor safety. Remember, this the same group that thought blasting the reefs of Kalama Park and building a sea wall was a great idea. Time has proven them wrong and the costs are being born by downshore property owners.

The list of losses connected to the Harbor Plan is a long one:

1. Reef Loss
4.8 acres of productive reef, home to over 120 marine species, will be destroyed. The Corps plans to “mitigate” by creating a 3.3 acre artificial reef. No location is given. Another 1.5 acres is expected to grow back along the newly blasted Harbor channel. No statements are made at length of time this will take, or quality of habitat that will result, especially if water quality is changed by siltation (coral reefs are very sensitive to loss of light and silt blocks light).

2. Beach Loss
The last remnant of what was once a wide sandy curve of sandy shoreline along Ma`alaea Bay (inside the current harbor area) will be paved for a parking lot. Several Ma`alaea condos enjoy this beach. Canoe paddlers use it as a landing.

3. Beach Erosion
The addition of yet another hardened structure along the bay (the proposed breakwater) is expected to continue the pattern of downshore erosion that has forced Ma`alaea condo owners to spend $50,000 on sand replenishment in 1998. Sea Grant erosion expert Rob Mullane confirms that “the existence of the harbor accelerated the coastal erosion and beach loss along the shoreline to either side. The harbor acts as a huge sediment sink, which traps large amounts of sand moving along the coast. There used to be sand along the shoreline on either side of the harbor. The seawalls that went up in response to increased rates of coastal erosion contributed to the beach loss along the coast towards Kealia, but the original and major factor was the construction of the harbor.”

4. Siltation
Near shore waters will have greater turbidity (dissolved solids) during 2 year plus construction process and very likely for a long time after. Dredging & blasting causes very fine particles- “silt,” that do not sink and settle like coarser sand, but remain suspended in nearshore waters, smothering reefs and affecting health of marine life. Water quality concerns are dismissed by the Army Corp’s Environmental Impact Statement (EIS). The EIS claims that siltation will not be a problem during construction “if best management practices are followed.” No examples are cited of similar projects that had no adverse impacts. The EIS also expects any post construction silt to be naturally carried away to deeper waters. Experts from US Fish and Wildlife Service disagreed with this analysis and called for a plan that did not destroy so much marine habitat.

5. Surf Spots
A popular surfing spot enjoyed by Maui’s youth will be destroyed, the Corps EIS claims no other breaks (including the famous “Ma`alaea Pipeline”) will be affected. Those who have grown up surfing Ma`alaea disagree. They claim maps in the EIS show the pipeline in the wrong place (conveniently further down from the harbor expansion) impact zone. They further believe that the surf at several other breaks will be modified by the proposed plan.

6. Whale Habitat
Humpback whales frequent the waters of Ma`alaea Bay from November to May. They are often observed 100 yds or closer to the reef area slated for demolition. The Corps overcame objections of state and Federal agencies claiming the plan would harm whales by stating that the proposed harbor plan will allow blasting and dredging of reefs only from June to November (but exceptions can be made by giving a 10 day notice to National Marine Fisheries Service!) Once the years of construction are complete, the threats to whales continues due to doubled harbor capacity – 130 additional slips, 51 commercial. Increased commercial activity degrades water quality through pollutants released from boat engines and puts 50 more commercial boats making multiple trips a day in a sensitive habitat area where whales seek a sheltered place to bear and nurse their young.

7. Turtles
Extremely endangered Hawksbill turtles nest and hatch young from June to September (the time proposed for reef destruction to avoid whale season) at nearby Kealia Beach (.7 mile from Ma`alaea harbor). Young hatchlings rest and feed on the Bay’s reefs before heading out to sea. Turtles find shelter in undersea caves and crevices formed by natural reefs. Concrete structures do not offer such habitat. Green sea Turtles (threatened, but not endangered) are found in abundance in the area surrounding the proposed breakwater. Their supply of limu will be killed off during the destruction of reefs. They will be forced to leave their chosen home and compete for food elsewhere if they are not directly killed or injured during reef destruction.

8. Loss of Sustenance Gathering Sites
Reef’s that will be destroyed are home to abundant fish, sealife and limu. Local people dive and spearfish and gather limu here. Years of construction activity with noisy barges, dredging, transport barges etc. will disturb local residents, surfers, fisherman and boat users as well as marine life.

9. Loss of Resources for Existing Fishing Fleet
Harbor expansion plans do not mention the very real possibility of slip fees being raised. Increased commercial competition will divide the existing pool of customers and fish into ever smaller shares. If fees are raised, only the larger, corporate vessels will be competitive. The family based Ma & Pa operations will be forced out.

10. Cultural Impacts
The Hawaiian culture values the oceans as an interconnected web of life. Kanaka Maoli understand that when “man plays god”- destroying a natural ecosytem that has taken centuries to grow (like coral reefs), he seldom understands enough about all the levels that the system functions on to rebuild it “as good as new.” Ma`alaea was a special place to Hawaiians. The village site mauka of the Harbor has the largest collections of petroglyphs on Maui (Source Elsbeth Sterling/ W.M Walker survey c. 1920’s). The Name Ma`alaea is believed to be derived from the alae – or red healing iron oxide ocher compound found both on land and in waters offshore near Kapoli spring. The present breakwater covers many alaea beds that once existed. The Harbor itself was built on a foundation of disrespect for Hawaiian culture. The very stones of this ancient village were robbed to create the breakwater, including the huge boulders that formed a prominent heiau – 60′ x 90′ with walls 6′ thick and 8′ high. It is very unlikely that any protocol was followed in this procedure. Ka Poli spring, prized in ancient times as a puna wai in a dry region, was covered by the harbor’s restrooms and turned into a cesspool. Inez Ashdown reported in her 1971 historical account,” Ke Ala Loa” that she was shocked to find the village stones carried away by the original Harbor contractor in 1952 after she had surveyed and marked 40 sites for preservation. It is believed that the Piko stone and Adze sharpening stone in front of Buzz’s Wharf restaurant are remnants of this Village. The harbor was built by a culture that had just won a war against mighty nations-now they declared war on the natural environment and made a plan to take on these mysterious forces. Having little understanding of how these forces operated, their plan failed and now we are only offered more destruction to cover their embarrassment. This was never the way of the Hawaiian culture and several kupuna spoke up at the last hearing on the matter. They stated that the Hawaiian people were not consulted about the harbor plan. The Army Corps response was to end a letter and some complicated reports to all Hawaiian organizations on Maui. Not surprisingly, most did not respond. No gatherings were called. No one asked the people who grew up on Maui’s waters and had no commercial interest in their use what they thought about such a destructive plan. The Office of Hawaiian affairs sent a response signed by a staff person that in spite of the likely impacts to marine life, reef habitat and water quality, they found no cultural impacts. It is unknown if the elected board of OHA ever deliberated on the matter. It would seem unlikely that such a plan would be approved by the majority of OHA Trustees since it needlessly destroys those things that nourish local people. This does not reflect Hawaiian cultural values of malama o ka `aina. Historically, Ma`alaea figures prominently as a landing place for Hawaiian battle fleets and commerce, although unruly weather caused the lee of McGregor Point to be more favored by many. Apollonia Day held Ma`alaea in special regard. Numerous surveys in modern times have indicated that the wide variety of marine life found in the harbor area and surrounding reefs is quite unique in its diversity. This has been reported by researchers from the late 20’s on. In spite of the many pollutants and abuses the waters here keep struggling to renew their life giving ways. We must respect what is here stand united for a plan that creates harbor safety without destroying its resources.


MA`ALAEA SEWAGE

Department of Health’s Safe Drinking Water Branch is currently processing an underground injection permit to authorize the deepening of 2 sewage injection wells at the Ma`alaea Triangle Wastewater Treatment Facility. The permit number is # UM-1954.

DOH is also considering the permit renewal for 2 sewage disposal wells for the Milowai-Ma`alaea Condominium and 2 others for the Kanai a Nalu condo.

If you are concerned about the impacts of these projects or want more information call DOH at 586-4258.


STATE PLAN FOR MA`ALAEA FAILS TO MEET DEPARTMENT OF HEALTH STANDARDS
Analysis by David Frankel, Sierra Club, Hawaii Chapter

ACTION: Write the DOH and DLNR if you agree. Official comment period on this round of decision making is closed, but letters still have impact. Copies can be sent to the addressees below.

Michael Wilson, Chairperson
Department of Land and Natural Resources
P.O. Box 621
Honolulu, HI 96809

District Engineer
U.S. Army Engineer District, Honolulu
Building 230/CEPOD-ET-PP/Lennan
Fort Shafter, HI 96858-5440
Clean Water Branch
Hawai`i State Department of Health
919 Ala Moana Boulevard, Room 301
Honolulu, HI 96814-4920