Lawsuit calls for study of tour boat operations off Kaanapali Options pondered after 9th Circuit ruling over treated sewer water disposal in Lahaina

The Maui News
February 2, 2018

BRIAN PERRY
City Editor
bperry@mauinews.com

Maui County is reviewing its legal options after losing its appeal to the 9th U.S. Circuit Court of Appeals of a ruling that the county's use of injection wells at the Lahaina Wastewater Reclamation Facility since the early 1980s violates the federal Clean Water Act.

The county could ask the 9th Circuit justices to reconsider or it could appeal to the U.S. Supreme Court, which would need to agree to hear the case. A three-judge panel of 9th Circuit rendered its decision Thursday, upholding a 2014 ruling by the Hawaii District Court.

If the county's appeals fail, it agreed in 2015 to 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.

According to an announcement of the 9th Circuit ruling by Earthjustice, a nonprofit environmental law organization, the county maintained that the discharge of treated wastewater from the Lahaina sewage treatment plant's injection wells did not require Clean Water Act permits because the pollutants did not flow directly into the Pacific Ocean but entered indirectly through groundwater.

"Both the district and appeals court judges found that argument unconvincing," the Earthjustice statement said.

It quoted the 9th Circuit ruling, which used the acronym CWA for "Clean Water Act," as saying: "At bottom, this case is about preventing the county from doing indirectly that which it cannot do directly. . . . The county could not under the CWA build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without a (federal pollution discharge) permit. It cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery of the CWA's prohibitions."

The U.S. Environmental Protection Agency submitted a brief to the appeals court in support of the U.S. District Court ruling. It stated that all four Lahaina injection wells are "illegal" and in violation of the Clean Water Act. A University of Hawaii dye study released in the summer of 2013 showed the effluent from at least two injection wells went into the ocean.

The Lahaina sewage treatment facility serves West Maui and injects 3 million to 5 million gallons of treated sewage daily into groundwater each day, the Earthjustice statement says.

It said an EPA-funded study in 2011 showed that Lahaina sewage flows into groundwater surfacing near Kahekili Beach, "where it has been linked to algae blooms that smother the coral reefs and other degradation of this unique marine ecosystem."

In the case, 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.

Earthjustice reported that, in 2017, the U.S. Geological Survey, the state Department of Land and Natural Resources' Division of Aquatic Resources, and other experts published a peer-reviewed study "documenting the ongoing, serious harm to the reef at Kahekili associated with the Lahaina facility's discharges to the ocean."

"This is a tremendous victory for those who use the Kahekili Beach and for all Americans who care about protecting our nation's oceans, rivers and streams," said Earthjustice staff attorney David Henkin. "No more can the County of Maui or other polluters attempt to circumvent the Clean Water Act by using groundwater as a sewer to carry pollution into the ocean or waterbodies."

The court also found that the Clean Water Act's plain language gave the county ample notice a Clean Water Act permit is required for the Lahaina facility, the Earthjustice statement said.

The county Department of Environmental Management released a statement Thursday that pointed out the county's injection wells dispose of excess recycled water a half-mile inland of the shoreline.

The county statement acknowledged the 9th Circuit ruling, but it said that, "in so holding, the court fashioned a new theory of liability, where any small fraction of pollutants that can be fairly traceable to a source triggers liability."

"In creating this new theory, the court rejected both the U.S. Environmental Protection Agency's opinion as well as the plain text of the Clean Water Act itself. The county is reviewing the order."

The county statement said the county's Environmental Management Department has continued, in the meantime, "to aggressively pursue recycled water reuse as a primary goal."

"These projects are not inexpensive to install and to operate — the energy costs of pumping water from place to place are very high and are dependent upon (Maui County) Council's appropriation of sufficient budget," the department said.

The county went on to list its main water reuse projects in West Maui, South Maui, Central Maui and Molokai.

In Lahaina, the Environmental Management Department is working on an alternative disposal method, instead of using the injection wells as the primary source of disposal.

"This alternative utilizes an existing reservoir located at the 800-foot elevation, and plans are to utilize existing pipeline infrastructure to pump the water up to this reservoir and utilize the excess recycled water for irrigation," the county statement said.

A cost estimate for this and other projects was not immediately available.

In Kihei, the department is soliciting bids next month for construction of a new 1 million-gallon recycled water storage tank, the county said. That tank will double the amount of storage and pressurization for distribution of recycled water in South Maui.

Current users of recycled water in South Maui use enough to empty the existing 1 million-gallon recycled water tank more than once a day, it reported.

The county reported that it's moving forward with an agricultural/land application project in the vicinity of the Kihei Wastewater Reclamation Facility, located on 150 acres owned by the county.

Henkin said he hopes Maui County will spend its money on wastewater reuse projects, instead of paying at least $2 million in legal fees for private attorneys.

"We think the District Court got it right. We think the 9th Circuit clearly got it right," he said. "The county's focus should be on fixing the problem, rather than fighting the problem."

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

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