Maui is urged to withdraw its high-court wastewater appeal

Honolulu Star-Advertiser, Sept. 4, 2019

By Timothy Hurley

A Maui County Council committee heard scores of testifiers about its Lahaina injection well legal case Tuesday, most of them urging the county to give up on its high-profile U.S. Supreme Court appeal.

“What we’ve been doing is crimes against nature, and it must stop now,” Steve Paselk told members of the Governance, Ethics, and Transparency Committee.

More than 90 people signed up to give testimony, and a meeting that started at 9 a.m. was still going into the evening.

The meeting was expected to be adjourned to Friday for deliberation on a resolution to settle the lawsuit and withdraw from the case. The committee is also expected to consider in closed session a resolution to authorize a revised settlement proposed by Mayor Michael Victorino.

There were few details of Victorino’s sparsely worded resolution Tuesday, but the mayor has been a vocal supporter of taking the case before the Supreme Court, saying it’s about gaining clarity on a home-rule issue and potentially avoiding costly new regulations.

But many of those who spoke Tuesday said it’s about doing the right thing for the environment.

“Our reefs are precious and they need solutions,” said Lucienne de Naie, longtime community activist and conservationist.

The legal dispute dates back to 2012 when four community groups — the Sierra Club, Surfrider Foundation, Hawaii Wildlife Fund and West Maui Preservation Association — filed a complaint with the federal District Court alleging that Maui County was violating the Clean Water Act for its injection well discharges of municipal wastewater into the ocean near Kahekili Beach Park in West Maui.

The Lahaina plant disposes of 3 million to 5 million gallons of treated sewage daily through its underground injection wells. Environmentalists have argued for decades that pollution from the wells is contaminating groundwater that seeps into the ocean, killing coral and creating algae blooms.

An Environmental Protection Agency-funded study in 2011 used tracer dye to link the Lahaina sewage to near-shore waters off Kahekili Beach, and a 2017 U.S. Geological Survey study concluded that discharge from the plant was undermining the coral reefs there.

Meanwhile, the District Court agreed with the community groups, and its decision was unanimously upheld by the 9th Circuit Court of Appeals. The county appealed to the U.S. Supreme Court.

The suit has turned into a national environmental case that could change the way the EPA regulates water pollution across the country. Governmental and private interests have lined up on different sides, generally with blue states, conservation organizations and liberal-leaning groups lining up behind the community groups and the Trump administration, industry and conservative-leaning groups and red states backing Maui County.

On Tuesday, several testifiers said they are embarrassed to have Maui linked to the high-profile case. They said the case is being supported by some the country’s biggest polluters.

“I’m dismayed at the county’s attack on the Clean Water Act. This isn’t clarifying law; it’s upending decades of law interpretation,” said Isaac Moriwake, attorney for Earthjustice, the firm representing the community groups.

But others, including Realtors, engineers and a handful of Maui County Wastewater Division employees, said the issue is begging for clarity from the high court.

“There could be a lot of potential unintended consequences that come with this lawsuit,” said Deborah Aweau, adding the county could be forced to spend many more millions in wastewater upgrades if the circuit court decision stands.

The county would need to comply with National Pollutant Discharge Elimination System requirements that it is already unable to meet, Aweau and others said, and homeowners with septic tanks and cesspools could be saddled with costly requirements as well.

But the state Department of Health indicated in a recent letter to the Council that it wouldn’t enforce the septic and cesspool requirements, some members pointed out, and they are already subject to a 2050 state ban.

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