Council approves increase of legal budget in defense of 'illegal' wells Members also approve option to settle the case

The Maui News
July 8, 2015

By MELISSA TANJI - Staff Writer

WAILUKU - The Maui County Council approved raising compensation to $2.25 million on Tuesday for private legal counsel to defend against a lawsuit in which the county faces millions of dollars in fines over its use of four injection wells at its Lahaina Wastewater Reclamation Facility.

All nine council members voted in favor of increasing funding for special counsel Hunton & Williams LLP from $1.75 million to $2.25 million for trial preparation, motions, trial and appeal, according to the resolution.

The members also approved a resolution to authorize settlement of the case.

Both resolutions were set to be referred to a committee Tuesday, but because of the upcoming trial, the council voted to take immediate action.

A trial is set to begin on Aug. 11. In January, Earthjustice, which represents a coalition of groups suing the county, said maximum penalties in the case at that time exceeded $100 million.

"We are doing this in the best interest for the people of Maui County," said Council Member Mike Victorino about the council's actions Tuesday during the meeting in Council Chambers.

Council members, including Council Chairman Mike White, said they wanted to share more about the situation publicly, but there wasn't much that could be said because the matter remains in litigation and was discussed in executive session.

County spokesman Rod Antone said that because the council resolutions were discussed in executive session, the county administration could not comment.

Earthjustice did not provide comment Tuesday.

U.S. District Court Judge Susan Oki Mollway has ruled that the four injection wells at the Lahaina wastewater facility are "illegal" and in violation of the federal Clean Water Act. The lawsuit, filed in April 2012, contends that wastewater from the injection wells is making its way to the ocean, endangering the public, contributing to algal growth and harming coral reefs. Four Maui community groups - the Hawai'i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui Group - filed the suit to force the county to secure a national pollutant discharge elimination system permit under the federal Clean Water Act, which would set limits on the pollutants that can be discharged from the wells.

The Lahaina wastewater facility takes in 4 million gallons of sewage a day and injects treated and disinfected effluent into the ground, according to court documents.

Results of a University of Hawaii dye study released in the summer of 2013 showed that effluent from injection well Nos. 3 and 4 was making its way to the ocean near Kahekili Beach Park.

Mollway previously noted that the dye study for well No. 2 showed no impact on nearshore waters and that there was a lack of a study for well No. 1. But she said in a previous ruling that "the parties do not dispute that effluent pumped into wells 1 and 2 eventually finds its way to the Pacific Ocean."

Mayor Alan Arakawa has said that the effluent had been used to irrigate the sugar and pineapple fields in Lahaina, which are now gone. He previously said that the county could work with others to use the effluent to water fields for a biocrop that could generate electricity, but such projects have yet to materialize.

Earthjustice has previously said that the plaintiffs do not want to see the fines go into the federal treasury. Instead, they want to see the money invested in infrastructure on Maui that would reuse the effluent.

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