County faces $2.6M penalty if it loses injection well appeal
The Maui News, September 25, 2015
By EILEEN CHAO
Maui County has agreed to spend $2.6 million in penalties if it loses its court appeal against a federal judge’s ruling that its use of injection wells at the Lahaina wastewater treatment facility violates the Clean Water Act.
In a settlement reached Thursday, the county agreed to pay a $100,000 penalty to the federal treasury and spend another $2.5 million on projects designed to divert treated wastewater from its four Lahaina injection wells and reuse that water to meet existing water demands in West Maui, according to an announcement from environmental law firm Earthjustice, which represented four local groups that brought the lawsuit against the county in 2012.
“Today’s settlement ensures the lion’s share of the penalty for the county’s years of violations will be invested to solve problems in West Maui, protecting fragile coral reefs and helping to address chronic water shortages,” Earthjustice attorney David Henkin said in a news release Thursday.
Maui community groups – Hawai’i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui Group – argued that wastewater from the injection wells, which have been in use since the mid-1970s, was seeping into the ocean, triggering outbreaks of invasive algae and killing coral reefs. Results of a University of Hawaii dye study released in the summer of 2013 showed that effluent from at least two of the injection wells was making its way into the ocean near Kahekili Beach Park.
U.S. District Chief Judge Susan Oki Mollway ruled in January that all four injection wells at the Lahaina wastewater facility are “illegal” and in violation of the Clean Water Act. Henkin said at the time that the violations left the county open to tens of thousands of dollars a day in civil penalties.
The county is appealing the judge’s ruling.
Maui County Council Chairman Mike White described Mollway’s ruling as the first of its kind.
“It appears to be an unprecedented ruling to find injection wells are subject to the Clean Water Act, even when they are operating in compliance with permits issued under the Safe Drinking Water Act,” White said in a statement.
“The Lahaina wells were constructed with the support of, and operated for more than 40 years with the permission of, federal and state regulators. Yet no federal or state agencies are coming to the county’s aid in this case or being subjected to the same legal scrutiny or exposure,” he said.
Mayor Alan Arakawa said the court’s ruling has “far-reaching implications, not only for Maui County, but for state and other local governments, which is why the county must appeal this decision.”
He added that there are more than 5,600 injection wells being used in Hawaii, and hundreds of thousands more across the country.
“This national battle is being fought at the expense of Maui’s taxpayers,” he said.
If the county wins its appeal, it will be able to continue operations at the Lahaina facility as is and avoid all fines. If not, the county will need to abide by the settlement agreement, pay the fines and secure a National Pollutant Discharge Elimination System permit, which would set limits on the pollutants that can be discharged from the wells.
The county applied for the permit two years ago and again in January, but has to date not received any comments or approval from the state Department of Health, officials said.
By law, the federal government has 45 days to review and comment on the settlement agreement. The terms of the agreement allow for the county’s appeal to be expedited, the county news release said. No timeline for the appeals process was immediately available.
Henkin said Maui residents would be better served if the county, instead of spending thousands more on lawyers’ fees, would just spend the money to fix the Lahaina facility’s pollution problems.At least for now, environmentalists touted the agreement as a win.
“This settlement is a major victory in getting the county to stop using the reef off of Kahekili Beach as its wastewater dumping ground,” Lucienne de Naie of Sierra Club-Maui said in a statement. “It requires the county to invest in sensible alternatives to injection, meeting existing demand for precious water in West Maui by constructing infrastructure to get treated wastewater to golf courses, resorts and others.”
Hanna Bernard of the Hawai’i Wildlife Fund said “the devastation to this once pristine coral reef ecosystem is tragic.”
“The county should embrace its role as steward of Maui’s natural resources and treat this settlement as a starting point to do all it can to save what’s left of this fragile reef, including eventually shutting down the wells for good.”
Lance D. Collins of the West Maui Preservation Association said it was “disappointing that the county chose to fight tooth and nail, wasting taxpayer money on expensive Mainland lawyers rather than trying to protect the reefs at Kahekili Beach.”
He said he hopes the settlement agreement is “a turn in the right direction.”
The Lahaina plant treats about 4 million gallons a day of sewage. About a million gallons per day is used on a nearby golf course, pineapple fields and by construction contractors. The remainder is disposed of in the four gravity-fed injection wells, which range in depth from 180 to 225 feet and are located approximately 1,500 to 1,900 feet from the shoreline at an elevation of about 30 feet.
Henkin told The Maui News that more recycled water can go toward irrigating West Maui golf courses and lawns, if the county built additional pipeline to distribute treated water from the reclamation facility.
“If the county does build those lines to a property, they (property owners) are required to hook up and use recycled water for those needs, but unless and until the county builds the infrastructure, those water users have no choice but to use groundwater or stream water to meet their water needs,” Henkin said.
The county had been in talks with California-based Anaergia Services, whose proposed Mahinahina Energy Park project would be able to take 2.5 million gallons per day of the treated wastewater to irrigate its sorghum fields in West Maui. That project is on hold until Anaergia is able to reach a biocrop purchase agreement with Maui Electric Co.
Henkin said the Anaergia project wouldn’t satisfy the county’s obligation because under the settlement terms, recycled water from the wastewater facility should be used for “existing water demands” in West Maui. The energy park would be a new project.