9th Circuit rejects county’s request to reconsider ruling

The Maui News | March 31, 2018

By BRIAN PERRY, City Editor

Action reaffirms earlier finding of violations to the Clean Water Act

While Maui County is pursuing projects to reuse its wastewater, the U.S. 9th Circuit Court of Appeals has denied the county’s request for a full-panel review of its Feb. 1 decision that the county violated the Clean Water Act by pumping treated wastewater into injection wells at its Lahaina Wastewater Reclamation Facility since the early 1980s.

“We’re pleased the 9th Circuit rejected this attempt by polluting industries to do an end run around the Clean Water Act,” said Earthjustice staff attorney David Henkin in a written announcement of the decision. “When Congress passed this landmark law to protect our nation’s waters, it did not create a loophole for Maui County to pollute the Pacific Ocean by using the groundwater underneath the Lahaina facility as a sewer.”

The county will appeal the 9th Circuit’s decision to the U.S. Supreme Court, Communications Director Rod Antone said Friday.

However, Department of Environmental Management Director Stewart Stant said the county has multiple ongoing projects in West, South and Central Maui to reuse wastewater and phase out the use of injection wells.

“We need to address injection wells,” Stant said Friday. “I’ve never wanted to use injection wells, not because the water’s bad but because it’s just wasting our resource.”

In his State of the County address, Mayor Alan Arakawa said wastewater reuse projects include a million-gallon storage tank in Kihei and development of a forest reserve/ plant nursery park near the Kihei Police Station. (Stant said the project would use reclaimed water to irrigate 152 acres mauka of the police station.)

Arakawa said the project should use all of the wastewater currently going into Kihei injection wells. And, the mayor and Stant described projects in West Maui to pump wastewater from the Lahaina plant to high-level reservoirs for irrigation use.

The county also is working with the state Department of Transportation to use wastewater from the Wailuku-Kahului treatment plant for irrigation at the Kahului Airport, Stant said.

Arakawa said a renewable power generation project near the airport will use 500 acres of biocrop as a feed source and use up to 4 million gallons of recycled water daily from the Kahului plant.

In his address, Arakawa said the county has spent $94 million on wastewater treatment facilities to better clean water for it to be used for irrigation.

The Lahaina wastewater treatment plant processes about 4 million gallons of sewage daily, injecting unused water into four injection wells.

An Earthjustice announcement of the 9th Circuit decision reports that a U.S. Environmental Protection Agency study in 2011 found that Lahaina wastewater flows into groundwater surfacing near Kahekili Beach. The upwelling of wastewater there has been linked to algae blooms that smother coral reefs and degrade marine ecosystems, it says.

Earthjustice represents four Maui community groups: the Hawai’i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association. The groups sued Maui County in 2012, seeking to protect the sensitive coral reefs at Kahekili and beachgoers from pollution.

In its February ruling, now reaffirmed, 9th Circuit justices said that, “at bottom, this case is about preventing the county from doing indirectly that which it cannot do directly,” because it would need a Clean Water Act permit to dispose wastewater directly via an outfall into the ocean.

“To hold otherwise would make a mockery of the (Clean Water Act’s) prohibitions,” the justices said.

Earthjustice reported that industry groups and 18 conservative state attorneys general had argued for the rehearing of the Maui case, “making this decision an important affirmation of Clean Water Act protections across the nation,” its announcement said. “Not a single one of the 9th Circuit’s 25 active judges even asked for a vote on whether to reconsider the panel’s decision.”

In 2015, the county agreed that, if its appeals failed, it would spend $2.5 million on projects to divert millions of gallons daily of treated wastewater from its four Lahaina injection wells and reuse that water for irrigation in West Maui. The county also would need to pay $100,000 to the federal treasury for its Clean Water Act violations, according to the settlement agreement.

* Brian Perry can be reached at bperry@mauinews.com.

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