US Supreme Court Grants Petition in West Maui Injection Well Case

The US Supreme Court has granted Maui County’s petition to hear its ongoing West Maui injection well case.  County officials say the decision means there’s hope the county won’t be forced to develop offshore sewage outfalls.

Maui Now graphic. PC: Map courtesy Lahaina Tracer Dye Study.

In February of 2018, a panel of the 9th US Circuit Court of Appeals ruled that the County of Maui’s Lahaina Wastewater Reclamation Facility had been violating the US Clean Water Act since the facility was first put into operation in the early 1980s.  The ruling upheld a 2014 decision by the US District Court for the District of Hawai‘i.

Maui County spokesperson Brian Perry said, “Last year’s Ninth Circuit Court of Appeals decision jeopardized Maui County’s ongoing, environmentally progressive 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 to a lawsuit.”

He continued saying, “The Ninth 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, “Maui County takes seriously its mission to protect the public’s health, safety and environment. Since the early 1990s, the county Department of Environmental Management has completed more than $40 million in recycled water projects, and nearly $70 million in projects are in the pipeline.”

In 2018, the environmental law firm, Earthjustice, noted that the Lahaina facility injected 3 million to 5 million gallons of treated sewage into groundwater each day.  In 2011, an EPA-funded study used tracer dye to show conclusively that the Lahaina sewage flows with the groundwater into near-shore waters off Kahekili Beach, where it had been linked to algae blooms that smother the coral reefs and other degradation of this unique marine ecosystem.

“We all want unpolluted waters, healthy coral and fish. 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. If the court’s decision were allowed to stand, thousands of residents and businesses could be required to get National Pollutant Discharge Elimination System permits for recycled water irrigation systems, cesspools and septic systems.”

According to Perry, the county is looking at pursuing beneficial uses for recycled water and cost-effective ways to transport it from the Lahaina Wastewater Reclamation Facility, but officials say they need both time and funding.

“This is not only a Maui County issue; it’s one that has grabbed the attention of the national recycled water community,” said Perry.

Meantime, Maui Mayor Michael Victorino said he welcomes the opportunity to have Maui’s case heard before the US Supreme Court.

In defense of their role in the case, the County of Maui compiled a fact sheet.  The full text of the document is included below:

County of Maui Fact Sheet Regarding Maui’s Water Reclamation Facilities

Fact #1: Injection wells are a safe, scientifically sound method of disposing of highly treated recycled water in use in Lahaina for nearly 40 years. The development of Maui County’s injection wells was funded in part by the US Environmental Protection Agency. Unlike other counties in Hawaiʻi that use ocean outfalls to dispose of treated wastewater, Maui County made the environmentally sensitive decision in the early 1970s to construct deep injection wells that use the earth’s natural filtration system to further purify treated wastewater. The EPA partly funded these wells at a cost much higher than an ocean outfall would have been at that time, and the facility and its operations are permitted under the federal Safe Drinking Water Act and Hawaiʻi law by both the EPA and the Hawaiʻi Department of Health.

Fact #2: Recycled water eventually ends up in the ocean safely, without harming the environment. Recycled water is used for irrigating golf courses, resort grounds and county parks and facilities in West Maui. What is not used on land goes into the injection wells. There have been no reliable scientific studies that have shown that the Lahaina facility’s recycled water causes algae blooms or the growth of harmful algae or death of coral in the ocean. With the injection wells in operation for nearly 40 years, one would expect a vastly different underwater world if the recycled water were harming ocean life. The truth is that the coral on the west side is generally in healthy condition, with sites, including Kahekili being called “pristine.” A 2012 dye tracer study, conducted by the University of Hawaiʻi for Health Department, EPA and the US Army Engineer Research and Development Center, was designed to (1) determine whether there was a hydrologic connection between the injection wells and the natural fresh water springs offshore, and (2) determine the travel time between the treatment facility and the ocean. To do this, scientists put a large quantity of dye into the Lahaina facility’s injection wells. The dye put into Well No. 2 was never found offshore. Dye put into Wells 3 and 4 began to show up at tiny freshwater springs offshore in 84 days, with “peak detection” occurring in nine to 10 months. The scientists concluded that the average travel time from the facility (which is located more than a half-mile away from the coastline) is 15 months, with total travel time being approximately four years.

Fact #3: Clean Water Act permits have not historically been required for UIC wells. Maui County operates the Lahaina facility according to state and federal “Underground Injection Control” (“UIC”) permits, which include monitoring of the recycled water quality and reporting test results for bacteria, chemistry, heavy metals, pesticides, nutrients, and other compounds. UIC permits are issued under the federal Safe Drinking Water Act and related Hawaiʻi laws, while NPDES permits are issued under the federal Clean Water Act.

Fact #4: The federal district court and Ninth Circuit Court of Appeals did not determine that the recycled water caused harm to the environment. It is important to understand that the lower courts did not conclude that the nearshore environment off of the Lahaina coastline was damaged by recycled water reaching the ocean. Rather, the court ruled the discharges of recycled water from the County’s wells that reach the ocean are regulated under the Clean Water Act, meaning that the county must operate the wells under an NPDES permit.

Fact #5: The lawsuit is a complex case of “first impression.” It’s not a matter of applying for a simple permit. The federal Clean Water Act has not been previously extended to circumstances such as those in Lahaina, where highly treated recycled water is disposed of into wells hundreds of feet deep, with some portion of that recycled water over time possibly dispersing through freshwater springs offshore. The lawsuit exposes the county to significant potential fines and penalties. Failing to vigorously defend against this lawsuit would be irresponsible. The final outcome of the case is still to be determined and could have a far-reaching effect, not only in Maui County, but throughout the nation. To put things in context, there are approximately 650,000 “Class V” injection wells in the US, with more than 5,000 located in the state of Hawaiʻi. Requiring these types of injection wells to operate under both UIC and NPDES permits poses significant problems, uncertainties, and costs borne by taxpayers.

Fact #6: Recycled water is a clean, safe, and valuable resource and Maui County has spent millions of dollars putting pipelines and other infrastructure in place to increase land-based use of recycled water. Maui County has prioritized recycled water projects, spending tens of millions of dollars in infrastructure, with more improvements planned in the near future. In the next couple of years, the county will spend approximately $21 million to increase our storage capacity for the reuse systems in Kīhei and Lahaina. These projects will provide an additional million gallons of recycled water available for use and will ensure a more resilient recycled water system for our current and future users. Over the next six years, the Department of Environmental Management plans to invest another $49 million to expand the recycled water distribution system countywide, which will allow us to provide recycled water for agricultural purposes in Kīhei, Lahaina and Central Maui.

Fact #7: The county does not control demand for land use of recycled water – demand is dependent on commercial customers, the economy, tourism and the weather. Over the past several years, Maui County has made significant strides in responsibly expanding the recycled water distribution system. These projects are not simple, nor are they inexpensive. They are dependent upon commercial customers such as golf courses and hotels, who are in turn dependent upon the economy and tourism. Demand for recycled water is also seasonal — in the rainy season, demand for recycled water sharply decreases (Why pay for recycled water when rain is free?). Recycled water usage on the west side averages 15 to 47 percent (wet to dry seasons).

Fact #8: The Department of Health does not allow residential use of recycled water. Recycled water is only allowed for use on commercial properties (typically, agriculture, hotel/resort or golf course) with a reuse manager on site, so expansion of the recycled water system to residential customers is not currently an option.

Fact #9: Wastewater is a fact of life. We all use water to bathe, do our dishes and use the toilet, and we think little of it once it goes down the drain. It’s easy to say, “No more injection,” without understanding all of the facts. The Lahaina Wastewater Reclamation Facility employs primary, secondary and tertiary treatment methods. The service area extends from Kapalua in the north to Puamana in the south. If the desired outcome is the complete elimination of the use of injections wells, there are only two options: a deep ocean outfall or adding additional filtration and processing all incoming wastewater to potable standards, which could supplement the potable water supply on the west side. All other solutions involve expansion of the recycled water distribution system, which can’t happen overnight, and which, again, depends on new customers, the economy and the weather. In addition, ceasing or dramatically reducing the use of injection wells could have a significant negative effect on the underlying freshwater aquifer and on other wells in the region, and this should be factored in as we move forward. A 2012 US Geological Survey study, simulating the effects of ceasing injection of recycled water, concluded that the injected water acts as a hydrologic barrier, reducing the amount of saltwater that encroaches into the aquifer. Without injection of recycled water, the freshwater body would become thinner, and salt water may intrude into wells, possibly rendering them unusable. Treatment and disposal of wastewater, and use of recycled water, like many of the county’s functions, is complex, heavily regulated, and involves significant capital expenditure. The county continues to work toward the most environmentally sound methods of recycled water use and disposal. Water, whether from streams, aquifers or the ocean, is a valuable resource and must be protected. The responsible use of recycled water is one of the most effective and environmentally sound methods to protect this valuable natural resource, and the county remains committed to environmental stewardship at all levels.