Petitions Delivered Urging County to Settle Lahaina Injection Well Case
A petition signed by over 15,000 members of the Sierra Club and Surfrider Foundation was delivered to Maui County Council Chair Kelly King today. The petition urges the county to settle the legal case involving it’s Lahaina wastewater treatment plant and withdraw it’s appeal to the US Supreme Court.
“We brought this lawsuit over seven years ago and we’ve won every step of the way, making clear that the law does not allow the county to… use the ground as a sewer to pollute the ocean. It’s common sense and it’s the law,” said Isaac Moriwake, an attorney with Earthjustice.
“The petition doesn’t speak to the merits of our appeal to the U.S. Supreme Court,” Maui County spokesman Brian Perry said. “It seeks to create fear of national impact over what is a home rule issue for Maui County and its right to appeal a 9thCircuit decision that creates a costly and potentially impossible regulatory burden on municipalities and taxpayers.”
The four community groups, represented by Earthjustice (Sierra Club and the Surfrider Foundation, with support from Hawai‘i Wildlife Fund and West Maui Preservation Association) filed a complaint with in Hawai‘i Federal District Court in 2012, alleging that Maui County was in violation of the Clean Water Act for its injection well discharges of municipal wastewater into the Pacific Ocean just offshore of Kahekili Beach Park in West Maui.
The District Court agreed, and its decision was unanimously upheld by the Ninth Circuit Court of Appeals. Now, the case is before the Supreme Court, with oral arguments scheduled for Nov. 6, 2019.
“These are the seeps, where it’s blurry. This is where the wastewater comes out. It’s warmer, it’s more acidic, it’s nutrient rich and the cause of these dead zones,” said Hannah Bernard, Executive Director of Hawai‘i Wildlife Fund.
“We’re asking the County to fix this problem and give our reefs a chance to recover,” said Bernard. “The County’s refusal to protect an ecosystem in our backyard could jeopardize public health and clean water across the country. But it’s not too late for the County to do the right thing.”
“The federal Courts, all the way up to the 9th Circuit court of appeals agreed with the four plaintiff organizations that there needs to be a permit for the amount of pollution that is reaching the reef,” said Lucienne de Naie, conservation chair for the Sierra Club Maui group . “It’s not that the water is not treated. It is treated, but water that’s treated for R1 purposes for sewage effluent has very high levels of nitrogen and phosphorous that harm our reefs. They’re not beyond the limit of safe drinking water, but the reefs need very very low concentrations or the balance of their ecology starts to suffer.“
Perry said, “If Earthjustice is confident in the merits of its case, then it should have no problem taking its arguments before the U.S. Supreme Court, which will provide clarity for exactly how the Clean Water Act applies in cases such as Maui County’s.”
County officials say West Maui ocean water quality has improved since 2009, after the fish conservation practices reduced overfishing of algae-eating fish such as parrotfish and surgeonfish.
“If ocean conditions were negatively impacted by recycled water seeping into the ocean from the injection wells, then reef conditions would continue to deteriorate. They have not,” Perry said.
“The Maui Nui Marine Resource Council reported that, since 2009, there has been a 331 percent increase in parrotfish biomass on the reef and a 71 percent increase in surgeonfish numbers. These fish are growing larger and in greater numbers, meaning that they are better able to consume algae and clean reefs,” said Perry.
Environmental groups do not agree with the county’s assessment. Moriwake said, “We took pictures of this last week, and so this is not something that has been claimed that its some sort of past situation or has been improving. It’s still there and it’s not getting better, because 3 million gallons a day to 5 million gallons a day are getting pumped into the ocean from this wastewater treatment facility.”
County Managing Director Sandy Baz said actions are being taken to address the issue at a local level.
“We feel that the we’re stopping the use of direct ocean outfall where the sewage was going previously out directly into the ocean,” said Baz. “We have proposed to them that we want to go to 100 percent reuse of our recycled water instead of putting it in injection wells. So we’ve invested millions of dollars and we’re committed to investing millions of dollars into that project so that we can get to 100 percent reuse and not have to inject our recycled water into the ground.”
“The county’s main standpoint always has been (that) this is a local issue and it’s been regulated by the state… through the Safe Drinking Water Act. It’s a federal act that gives the states the power and abilities to regulate our use of the injection wells,” said Baz.
County officials say they’ve been applying for permits and have maintained compliance with state laws. “So this concept that the Clean Water Act now applies to our injection wells is something new,” said Baz. “It’s a new application of the Clean Water Act on this injection system… versus us trying to get away with polluting the water. We’re really not trying to get away with anything about pollution of clean water. We’ve made a major effort to reduce pollution,” he said.
While County officials maintain the issue is a local one that is being regulated by the state through the Safe Drinking Water Act, environmental groups claim a Supreme Court ruling in the county’s favor would create a loophole for large polluters.
“This case is being closely and eagerly watched by some of the worst polluters in the country,” said Earthjustice attorney Mahesh Cleveland in a press release statement. “The loophole the County seeks would allow industrial and municipal polluters to evade regulation under the Clean Water Act simply by moving their discharges just short of the shores of navigable waters, or disposing of pollutants via groundwater. A Supreme Court ruling in the County’s favor would have serious negative impacts on water quality nationwide,” he said.
Moriwake agreed saying passage in the higher court would, “change the law that has been established for 40 years and allow people to circumvent this basic bedrock protection of clean water across the nation by simply sticking their pipe into the ground… or cutting their pipe short, just to the water’s edge, I kid you not, this is what the county is arguing.”
Earthjustice alleges that the County has “allied with the Trump Administration in claiming that the pollution of the ocean via groundwater is exempt from the Clean Water Act.”
Baz disagrees saying, “They interestingly call us ‘aligning with the Trump administration.’ We’re not aligning with the Trump administration. We’re really trying to protect the citizens of Maui and the environment that we have. We feel that the efforts that we’ve been doing in recycling water and reducing the use of potable water for irrigation has been a good benefit to our community.”
David Henkin, the lead Earthjustice attorney representing the community groups said, “As both the Hawaiʻi district court and the Ninth Circuit have already concluded, the Clean Water Act flatly prohibits such threats to our nation’s waters. If need be, we will present this compelling case to the Supreme Court in November, but it shouldn’t have to come to that. The County still has time to change course and focus on solutions, rather than more litigation.”
“The risk is great that we could damage the Clean Water act if the ruling goes in the county’s favor,” said Bernard. “So we hope that today, we’ll be able to present these petition signatures to our chair Kelly King and then add to the body of evidence for the rest of the council members for a vote they’ll be taking next week whether we should pull this case or not.”
The petition delivery comes in advance of a Council committee hearing scheduled for next Tuesday, Sept. 3, 2019. The Government, Ethics and Transparency Committee is scheduled to discuss a settlement proposal and the plaintiff’s desire for the case to be withdrawn from the Supreme Court.
Baz responded saying, “The Supreme Court decided to hear this case because our case is an unique issue but there have been other cases throughout the nation in other Federal District Courts that have had differing opinions, so that’s really when the Supreme Court comes into play–to kind of decide the factor for national implementation.”
“We’re here today with this petition to say please council, when you meet on the 3rd,” said de Naie. “Please consider that the eyes of the nation are on our county right now at the Supreme Court, if they rule in the county’s favor the whole nation loses because large polluters who aren’t part of this case, but have filed friend of the court briefs, will all have a loophole to inject pollutants into groundwater.”
De Naie continued saying, “The wisest thing the county could do is withdraw the case, work on local solutions here with the communities. No one wants excessive fines, no one wants retribution. Everybody wants solutions. We’ve been at this since 2008, It’s the time,” she said.
Mayor Michael Victorino said, “Regardless of what happens with this lawsuit, Maui County’s goal is to recycle 100 percent of its wastewater as soon as possible.”
Perry continued, saying, “The 9th Circuit ruling in 2018 is a new interpretation of a federal law that dates back to the 1970s. Maui County has been and continues to operate its Lahaina wastewater injection wells safely and in compliance with permits under the federal Safe Drinking Water Act and the state equivalent statute.”