Column: Time to address Maui ocean pollution

Maui County lost its quest to freely dump millions of gallons of partially treated sewage into the ocean when, in April, the U.S. Supreme Court ruled that a functional equivalent of a direct discharge into the ocean without a permit violates the Clean Water Act. You wouldn’t know that from the way the county has approached the case since losing.

Fifteen years ago, science began to validate what the community had long known about the partially treated sewage injected into the ground at Honokowai. It was seeping up directly offshore into the Haʻenanui fishery, causing massive algae blooms and slowly killing the once abundant coral reef.

When negotiating failed, we sued Maui County in 2012 for violating the Clean Water Act. Maui County defended the lawsuit arguing that we could not sue without first going to the state Department of Health. Maui County also argued that it lacked “fair notice” that the Clean Water Act applied to the injection wells.

U.S. District Court Judge Susan Oki Mollway squarely rejected these arguments. Mollway ruled that the ocean pollution was “fairly traceable” to the injection wells and the wells’ discharges were the “functional equivalent” of a direct discharge of pollution to the ocean. Without a permit, such discharges violate the Clean Water Act. Mollway also ruled the injection into each well each day constituted a separate violation.

To avoid massive civil penalties against Maui taxpayers going to the federal treasury, we settled so that Maui County would pay only a required minimum fine and instead invest $2.5 million locally on upgrades to better distribute recycled wastewater. Maui County also reserved the right to appeal the legal points.

The county appealed to the 9th Circuit Court of Appeals, and lost. The county then appealed to the U.S. Supreme Court. By this point, Maui had spent more than $4 million on outside attorneys’ fees.

While the last appeal was pending, we offered to settle by making further concessions and, in August 2019, the Maui County Council accepted the offer. Nevertheless, Mayor Mike Victorino refused to sign the settlement agreement, arguing that he somehow could overrule the Council and continue litigating. He claimed: win or lose, everyone would benefit from the “clarity” of a Supreme Court decision.

On April 23, the U.S. Supreme Court ruled, 6-3, that the functional equivalent of a direct discharge of pollution into the ocean requires a Clean Water Act permit. They provided a multi-factor test of what constitutions a “functional equivalent” and sent the case back to the lower courts to implement the decision.

With the newfound “clarity” of the 6-3 decision, it was a huge surprise to hear Maui County ask the District Court last week to reopen the original case, have a “do over,” start the litigation from scratch and show how the courts made a big mistake. We wonder how many more millions the outside attorneys are hoping to make.

We did not get into this fight to win lawsuits. We want to save and revitalize our reefs and the ocean and human life that depend upon them. We want treated wastewater recycled for agriculture and conservation use in West Maui and to eliminate the need for stream diversions.

We call on Mayor Victorino to end the nonsense and accept the clarity of the U.S. Supreme Court decision. Let’s work together to fix West Maui’s dirty secret once and for all.

Rob Weltman is chairperson of Sierra Club Maui Group; Lucienne de Naie is the conservation committee chairperson of Sierra Club Maui Group.