County will not appeal injection wells ruling

Decision signals end for decadelong lawsuit that went as high as Supreme Court

The Maui News
November 20, 2021

COLLEEN UECHI
Managing Editor
cuechi@mauinews.com

Maui County will not appeal a U.S. District Court's ruling in favor of environmental advocacy groups who sued the county nearly a decade ago, bringing an end to a long legal battle over the county's practice of injecting treated wastewater into the ground.

Judge Susan Oki Mollway issued an order in July saying that Maui County "must obtain a permit under the Clean Water Act consistent with the analysis established by the Supreme Court" for its use of injection wells at the Lahaina Wastewater Reclamation Facility. The county appealed the July decision and was denied by a Hawaii federal court in October.

The county announced Friday that it would not appeal Mollway's decision.

"Maui County's goal has always been to seek clarity in the law," Corporation Counsel Moana Lutey said in a news release Friday evening.

"We now have clarity in the law from the U.S. Supreme Court, and will continue to work with the State of Hawaii Department of Health to apply the high court's instructions going forward."

Members of the groups that filed suit and their attorney celebrated the decision Friday after years of court cases, appeals and constant uncertainty.

"It's been torture. When we got word from the Supreme Court that they decided in our favor back in (2020), we were so thrilled, and yet to have that victory yanked out of our grasp when the county went ahead and appealed, that was just heartbreaking for us," Hannah Bernard, executive director of the Hawaii Wildlife Fund, told The Maui News on Friday. "It's been a year fighting for the county to just finally stand down."

In 2012, the Hawaii Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association filed a lawsuit over the county's use of injection wells at the Lahaina facility, saying that the effluent was reaching the ocean and impacting coral reefs. A University of Hawaii dye tracer study released in 2013 showed that effluent from at least two injection wells was reaching the ocean.

In 2014, Mollway ruled against the county, which then appealed to the 9th Circuit Court of Appeals. The court agreed with Mollway in its ruling in 2018.

Maui County Council members and other residents urged the county to settle the case before it headed to a higher court, but the county pressed on, and the U.S. Supreme Court heard arguments in the case in 2019.

The central dispute boiled down to whether Maui County was violating the Clean Water Act by disposing of wastewater through injection wells. The county argued that it didn't need permits because the treated wastewater was not entering the ocean directly, but rather indirectly through groundwater.

In April 2020, the Supreme Court ruled that sewage plants and other industries cannot avoid Clean Water Act requirements simply by discharging polluted water into the ground, rather than directly into nearby waterways.

The case was remanded to the lower courts, which confirmed that Maui County needs a National Pollutant Discharge Elimination System permit.

"When the community groups and Earthjustice first got involved in this issue in 2008, we spent four years out of court before going to court, offering a lending hand to the county to try and fix the problem, and unfortunately . . . the county put its head in the sand and pretended there wasn't a problem," Earthjustice attorney David Henkin said Friday. "And then we spent the last nine years in court trying to convince the county that they need to fix this.

"As in 2008, we will offer to lend a helping hand to the county and look forward to working with the county and the state Department of Health to fix this problem, which is very fixable," Henkin added. "The treated wastewater that is injected into the wells may be death to the reef, but it is a valuable freshwater resource that can be used to irrigate agriculture, golf courses and landscaping in arid West Maui."

The county said in a news release that its focus continues to be maximizing beneficial use of recycled water, reducing or eliminating use of injection wells, which it said it has been working toward for decades. In Lahaina, the Department of Environmental Management is rehabilitating upper-elevation reservoirs so that the water can be pumped and stored for use on the slopes to provide water for irrigation as well as establish greenbelts for fire protection.

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

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https://www.mauinews.com/news/local-news/2021/11/county-will-not-appeal-injection-wells-ruling/

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