fbpx

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!

Submit Comments on the Anaergia MANA Draft EIS

(Read about this issue in our previous post here  and in a Maui News article about the recently held public meeting.)

Anaergia/MANA has submitted a Draft Environmental Impact Statement (DEIS) to the county, which must be approved in a final form before the project can move forward.

The deadline to comment on this Draft EIS is Tuesday, February 6, 2018.

We urge Sierra Club Maui members and supporters to submit comments on the Draft EIS.

At first glance, the project might look eco-conscious and economically viable – but when you delve into the details, it becomes very clear this project has not been properly vetted. 

Here is the announcement of the Draft EIS (PDF) in the December 23, 2017 OEQCʻs The Environmental Notice.

The Draft EIS is available for download here (large PD).

 

Comments should be emailed to: