Maui County’s environmental review of proposed plant and injection wells acknowledged “the effluent will eventually get into the ocean.”
Lahaina Wastewater Recycling Facility (LWRF) installed original two injection wells, Wells 1 and 2.
Maui County begins discharging treated wastewater from LWRF into Wells 1 and 2.
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.
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.”
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.
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.
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.”
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.
EPA Issues PUBLIC NOTICE OF INTENT TO ISSUE AN UNDERGROUND INJECTION CONTROL (UIC) PERMIT FOR THE LAHAINA WASTEWATER RECLAMATION FACILITY.
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
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”.
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.
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.
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.”
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.
Tracer studies show effluent reaching nearshore waters
April 16, 2012
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.
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.
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
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:
- 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.
- 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.
- 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.
After 17 months of settlement negotiations lead to no resolution, Plaintiffs file for Summary Judgement.
May 4, 2015
Mandatory settlement conference.
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’
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.
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.
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.”
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”).
County submitted a draft NPDES permit application and fact sheet to DOH.
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.
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.
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.
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.
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.
Maui County Council Governance Efficiency and Transparency Committee votes to recommend settlement of Lawsuit and withdrawal from US Supreme Court Appeal.
Maui County Council votes to settle of Lawsuit and withdrawal from US Supreme Court Appeal
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.