U.S Supreme Court to hear injection well ruling appeal Maui County’s battle with the Clean Water Act and subsequent appeals has dragged on for nearly a decade

The Maui News
February 20, 2019

LOCAL NEWS

COLLEEN UECHI
Assistant City Editor
cuechi@mauinews.com

The U.S. Supreme Court has agreed to hear a case involving the Lahaina injection wells and the federal Clean Water Act, a decision welcomed by Maui County but decried by local environmental groups as a waste of taxpayer money.

The justices agreed Tuesday to hear the case after courts around the country were split over their rulings on the reach of the Clean Water Act, which requires polluters to get a permit when releasing pollution into certain bodies of water.

In Maui County, the battle over the Clean Water Act has dragged on for nearly a decade.

“Instead of looking for solutions seven years ago, all of the county’s resources have been devoted to fighting this legally,” said Lance Collins, spokesman for the West Maui Preservation Association, one of the groups involved in the original lawsuit. “So seven years and $4 million later, there really are no alternatives because everything’s been focused on trying to win on legal technicalities.”

Maui County Mayor Michael Victorino, meanwhile, welcomed the opportunity to have the case heard before the Supreme Court. Victorino’s office said in a news release that the court’s decision to agree to hear the case “means that there’s hope the county won’t be forced, ultimately, to develop offshore sewage outfalls.”

“We all want unpolluted waters, healthy coral and fish,” county spokesman Brian Perry said. “But we want workable solutions, not onerous and costly government red tape. This is a home-rule issue that should be addressed here, not by far-off regulators imposing rules that don’t properly address our real world problems.”

In 2012, the West Maui Preservation Association, Hawaii Wildlife Fund, the Sierra Club-Maui Group and the Surfrider Foundation sued the county over its use of injection wells at the Lahaina Wastewater Reclamation Facility, saying the effluent was reaching the ocean and impacting sensitive coral reefs at Kahekili Beach.

Studies in 2011 and 2013 show that sewage from the wells was entering the groundwater and flowing to the ocean near Kahekili Beach, where it was linked to algae blooms that can smother coral reefs.

The county had argued that the discharge of treated wastewater from injection wells did not require permits under the Clean Water Act because the pollutants did not flow directly into the ocean but rather flowed indirectly through groundwater.

The U.S. District Court in Hawaii disagreed, ruling in 2014 that the county’s use of injection wells was a violation of the Clean Water Act. The county appealed to the 9th U.S. Circuit Court of Appeals and lost in February. The court denied the county’s request to reconsider the ruling in March.

David Henkin, an attorney for the nonprofit law firm Earthjustice that represents the four Maui groups, said one reason the U.S. Supreme Court may have agreed to take the case was that various courts have disagreed on the basic premise of Maui’s case — whether the Clean Water Act covers discharges that reach surface waters indirectly through the groundwater.

In April, the 4th Circuit Court of Appeals ruled similarly to Maui’s case in an issue involving an underground pipeline spill in South Carolina. But in September, the 6th Circuit Court of Appeals went the other way in a pair of cases involving coal ash ponds in Kentucky and Tennessee.

“So the only court that can resolve this split between the circuits is the Supreme Court,” Henkin said. “We’re confident that when they take a look at what the law is, what Congress’ intent was and what the effects would be of stripping authority from the state and the EPA to regulate these types of discharges . . . we expect the Supreme Court would resolve the split in our favor.”

Hannah Bernard, executive director and co-founder of the Hawaii Wildlife Fund, said the groups didn’t want to sue in the first place and had been trying to work with the county to find a solution.

“I’m disappointed that the county elevated it to the Supreme Court,” Bernard said. “I think it’s a waste of taxpayer money since it was already decided twice in the appellate courts.”

But Bernard’s even more concerned about what could happen to the reefs while the case awaits a ruling from the nation’s top court. She explained that the reefs at Kahekili are an important feeding ground for the critically endangered hawksbill turtles, and worries that the longer the case drags on, the more impacts there will be to the reef and marine life.

“I’m also disappointed because time keeps passing, and our reefs continue to be polluted by this wastewater,” Bernard said. “We’re not doing anything to mitigate this issue while we continue to argue in court.”

Perry said the county “takes seriously its mission to protect the public’s health” and that the county Department of Environmental Management has completed more than $40 million in recycled water projects, with nearly $70 million in projects in the pipeline. He said the ruling in February “jeopardized” the county’s recycled water and green infrastructure program.

“The county already has received an appeal from a South Maui condominium complex that seeks to avoid using recycled water because, in part, of fear of being exposed in a lawsuit,” Perry said. “The 9th Circuit ruling left Maui County and its taxpayers with the impossible task of addressing ocean water quality with an unworkable permitting program that was designed to be applied to ocean outfalls.”

Perry said the county needed time and funding “to continue pursuing beneficial uses for recycled water and cost-effective ways to transport it” from the Lahaina facility. Under a settlement reached in 2015, the county would need to spend $2.5 million on projects to divert and reuse the treated wastewater, and another $100,000 in fines to the federal treasury.

At a director confirmation hearing for Acting Corporation Counsel Patrick Wong on Feb. 5, Maui County Council members asked Wong why the county was continuing to appeal if it was already looking into other disposal methods.

“It’s very simple. We don’t have a permit,” Wong said. “It hasn’t been issued. Absent the permit, there’s no place for the water to go. It must still go down the injection wells. And until the Department of Health decides to issue its permit, we’re in violation. Hence the litigation continues. One or the other has to give.”

Wong said that if the county loses the case, it stands at risk for fines and penalties for the period of time it was operating without a permit.

But Collins argued that the Department of Health is likely waiting for the case to be resolved, and that as long as the county pushes forward with appeals, the department likely isn’t going to move forward with permitting. (The department could not be reached for comment late Tuesday.) And, Henkin said, it’s unlikely people would come after the county for not having a permit if they were spending time and money on fixing the problem rather than on litigation.

Henkin said the case likely won’t be heard until at least October, when the court’s next term begins. The court usually issues its final opinions by June, so the case “could conceivably go on for the better part of the next year and a half.”

“I think your readers need to be asking themselves, ‘Why is the county the poster child for every polluting industry in the U.S.?’ “ Henkin said. “And why are they leading the charge to gut the Clean Water Act? The county shouldn’t be in this fight in the first place. They should’ve listened to their citizens a decade ago and started investing in and fixing the problem.”

* Colleen Uechi can be reached at cuechi@mauinews.com.

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