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.

 

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.”

###

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.

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!