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Holiday Party Saturday, December 7 in Kihei!


Please Join the Maui Group Sierra Club, Surf Rider, Hawaii Wildlife Foundation, and West Maui Preservation Association in celebrating some great team work for the environment this year!

We invite you to come together with ALL of us for swimming, sunset, potluck, music, dancing, raffle, fun games, and much more. More Details to come!

Where: VFW (Veterans of Forien Wars) facility in Kihei

When: Sat Dec 7th 4:30-9:00pm

 

Supreme Court Oral Hearings in Lahaina Injection Wells Case November 6, 2019

This is the Supreme Court justices (in black) questioning Mayor Victorino’s lawyers (in red), slightly condensed.

Coral reef image courtesy of Caitlin Maratea, owner of Banyan Tree Divers in Lahaina.

Elbert Lin
Your Honor, I think if it still goes through the groundwater, the — the question under the statute is what is the — what is the conveyance, what is the thing that carries and delivers the pollutants.

I think even if it’s forcefully put into the groundwater, the groundwater is what’s carrying it. Now I can imagine, Your Honor, scenarios as we discuss in our brief where you’ve got, say, a point source, a pipe that’s very close to the water’s edge and — and expels the pollutants into the water.

The thing that’s carrying it, the last conveyance in that factual scenario, would be the pipe.

Justice Stephen G. Breyer
So what happens if you just take the pipe and you decide what we’ll do is we’re going to end the pipe 35 feet from the river or from the ocean or something? Now you know perfectly well that it’ll drip down into the ground and it’ll be carried out into the navigable water. In your theory, that isn’t covered?

Elbert Lin
In that scenario, Your Honor, the land is the conveyance and that pollution would be regulated under the nonpoint source —

Justice Stephen G. Breyer
Well, no, the conveyance is the groundwater that is underneath the land into which the pipe drips the pollutant.

Elbert Lin
— then the groundwater is what’s carrying and delivering the pollutants —

Justice Stephen G. Breyer
All right, but then what we have is, I take it, an absolute road map for people who want to avoid the point source regulation.

All we do is we just cut off the — cut off the — the pipes or whatever, five feet from the ocean or five feet from the navigable stream or five feet from — you see? You understand the problem. What I’m looking for in this case is what’s a standard that will prevent evasion, which I’m not — I don’t see how yours prevents evasion.

Justice Elena Kagan
Excuse me, Mr. Lin. Congress wanted the point source program to do something.

The Congress wanted point sources that were discharging pollutants to receive a permit before they did so.

And I think what Justice Breyer is saying is that nobody would ever have to go through that process of getting a permit if they knew that they could do something like what Justice Breyer was suggesting, just stop the pipe five feet before the ocean.

Justice Sonia Sotomayor
— but that’s the problem, isn’t it? Because it presumes the state will regulate, and some states don’t.

So what you’re doing is cutting off permitting because you’re limiting the word “to” — or — or morphing the word “to navigable waters” and changing it into “into navigable waters.” And that’s what Justice Scalia looked at was the plain text and said “to” is different than “into.” And so, for us, the question, I believe, is, do you read the plain language and does it say from a point source, it’s the well, to the ocean? It can be traced, yes.

I think the words are pretty clear.

Elbert Lin
A few answers to that, Your Honor.

Justice Sonia Sotomayor
To — to — to accept your meaning, we have to transform “in” into “into.”

Elbert Lin
Your Honor, if I could start with the statutory language, I think the wells as an example is important to address, but if you — I think if you look at the words “addition from any point source,” and you substitute in, for point source, pipe, which is in the statute and nobody disagrees is a — is a point source, addition to a lake, to an ocean, to a river, a navigable water, an addition to a lake of pollutants from a pipe, addition to a lake of sewage water from a pipe. I think, I submit, Your Honor, that the ordinary understanding of that, what one pictures in one’s mind is a pipe that is next to the water, not a pipe that is a mile away.

— that has delivery in it and it’s — it’s being associated with conveyance, which is a thing that transports, carries, and delivers.

Justice Brett M. Kavanaugh
That sounds like the directly argument that Justice Scalia’s opinion rejected.

Elbert Lin
Your Honor, we don’t think it can be found in the text because we don’t read “from” — we don’t think Congress intended “from” to mean causation.

So, one, we don’t think it can be found in the text.

Two —

Justice Elena Kagan
But that would be a normal way of reading the word “from,” wouldn’t it; in other words, to say, to decide whether something is from something else, you have to look as to whether it’s from something else? (Laughter.)

Malcolm L. Stewart
If it goes five feet to the shore and the pollutant travels onto the land, travels across the land and into the water, you know, through its own force, it spews out of the pipe or simply through the force of gravity because you’re on an incline, we would say that’s covered.

Justice Elena Kagan
So, if the pipe is on the — is on the land and spews onto the land, it’s regulated and you need a permit; but, if the pipe is underground, it’s not and you don’t need a permit?

Malcolm L. Stewart
You would not need a — you would not need a NPDES permit because you would not be discharging onto — you would not be discharging to the navigable water —

Justice Stephen G. Breyer
It’s the same problem

Justice Stephen G. Breyer
Just if you have a reaction to this.

If I don’t accept — I’m not saying — but if I don’t accept because I think these two programs are quite different, ground source and point source, different purposes, et cetera, and I’m worried about the evasion or area, you see, that we talked about first. So it seems to me this case, in my mind at the moment, is what’s the standard for separating the sheep from the goats? And you’re basically saying the Ninth Circuit’s way too broad and so are they, so we come up with zero, okay? Close to zero. Now the best — I want to try out one thing, if you think — have any reaction to it. If it’s — it’s regulated or under this, if it’s the functional equivalent of a direct discharge. Now the reason that I put that is because that leaves a lot of room for the EPA to write regulations, to decide what is the functional equivalent of a direct discharge.

And it’s narrower than the Ninth Circuit.

You want to — if you have to have a reaction to that, have it.

Malcolm L. Stewart
I still have concerns about any approach that could be interpreted as saying if the pollutants make it to the navigable water, then it’s covered.

Justice Sonia Sotomayor
Why are you doing what you’re doing? This is fairly traceable to you in large quantities.

The state didn’t control you.

What regulations are there in place that do?

— I mean the — the polluters.

What are they — what is being done to stop them?

If they followed —

— all the laws, and they still are polluting, they’re getting away with it.

So something failed.

The preventive measures of this law were not followed and something failed.

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.

 

Maui County Council petitioned to settle Lahaina injection wells case

August 28, 2019 #injectionwells #maui #petition

A petition with 15,962 names was handed over to Maui County Council Chair Kelly King this morning, asking the County to settle the Lahaina injection wells case rather than pursue it to the Supreme Court, and to invest in eliminating ocean pollution instead of continued litigation.

A large banner had a small photo taken in the waters off Kahekili Beach Park (where treated wastewater is released) for each of the 15,000+ names on the petition. People around the country fear that Maui County’s fight to weaken the Clean Water Act will allow polluters to avoid regulation in every state.

Present to deliver the petition were:

Hannah Bernard (Hawaii Wildlife)
Peregrine Paulson (Hawaii Wildlife)
Isaac Moriwake (Earthjustice)
Te’sha Makame Kaikamahine Martines-Melim (Surfrider)
Jenny Roberts (Surfrider)
Lance Collins (WMPA)
Lynda Nye (WMPA)
Lucienne Denaie (Sierra Club)
Rob Weltman (Sierra Club)
Kecia Joy (Sierra Club)

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Press release from Earthjustice for the petition delivery:

2019-8-27 1999 Pet. Delivery Press Release FINAL

Critical Information Delivered at Town Hall on Lahaina Injection Wells

The Dome at the Maui Ocean Center was packed on August 21 to hear experts speak and answer questions about the pollution into the ocean through the Lahaina Injection Wells.

Available now: Akakū’s video recording

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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.