Judge requires permit for Lahaina wastewater wells

A federal judge has ruled that a Clean Water Act permit is required for the operation of injection wells at Maui County’s Lahaina Wastewater Reclamation Facility.

The ruling by U.S. District Judge Susan Oki Mollway in Honolulu extends a nine-year losing streak for the county that included last year’s high-profile setback before the U.S. Supreme Court.

“This ruling is a victory for clean water, for justice and for common sense,” David Henkin, senior attorney at Earthjustice, declared Friday.

Henkin, who has represented four Maui community groups fighting the injection well discharges for more than a decade, said the Hawaii federal court decision would have ramifications for clean water around the country because it is the first court to apply a test established by last year’s Supreme Court ruling.

The high court, by a 6-3 vote in April 2020, said it wasn’t buying the county’s argument that it was exempt from the Clean Water Act just because sewage was not directly dumped into the ocean. The court said injecting treated sewage into groundwater that flows to the ocean is the functional equivalent of a direct discharge covered by the law.

The court sent the case back to the lower court to let it determine whether the functional-equivalent test exists in this case, and Mollway provided confirmation in a 50-page ruling Thursday.

“This was not a surprise,” Henkin said, noting it was the third time Mollway arrived at the same conclusion when the case landed in her court.

The question now is, Will Maui County appeal one more time?

Maui Mayor Michael Victorino would not say Friday, although he said in a statement that the county will continue to analyze the ruling’s impact.

Maui County has 30 days to appeal when Mollway enters her judgment into the record next week.

Henkin said a conditional settlement reached in 2015 is still available to the county. Among other things, it calls for the county to fund at least $2.5 million in West Maui projects to divert treated sewage from the injection wells and to pay a $100,000 penalty to the federal government.

The county also will be required to obtain and comply with a Clean Water Act permit for the Lahaina facility, which will ensure that any continued use of the injection wells will not harm water quality or the reefs and wildlife it harbors.

In his statement, Victo­rino said the county is disappointed in the court ruling but is still proud of its environmental stewardship that began decades ago when leaders made a decision to focus on water reclamation and reuse rather than ocean outfalls.

The Lahaina plant treats wastewater to the “R1” level, the highest quality in the state, he said, and the recycled water is used for irrigation, with the excess injected into deep wells.

“A troubling aspect to this ruling is the potential impact to the County’s recycled water program. The County will continue to analyze the impact of this ruling,” Victorino said.

He added, “Maui County is grateful that the U.S. Supreme Court found Maui County’s case worthy of its consideration and set out a test so that this important national law would be applied with uniformity.”

Henkin and his clients — Hawai‘i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association — in 2008 began talking to county officials about their concerns regarding pollution from the sewage treatment plant.

After an Environmental Protection Agency-funded study in 2011 used tracer dye to link treated sewage from the plant to nearshore waters off Kahekili Beach, the community groups sued in 2012, accusing the county of violating the Clean Water Act by injecting millions of gallons of treated wastewater into the ground daily.

Five years later a U.S. Geological Survey study concluded that discharge from the sewage treatment plant was drastically undermining the coral reefs off Kahekili.

The county lost in the U.S. District Court and 9th Circuit Court of Appeals before appealing to the nation’s highest court, spending at least $4.3 million for outside counsel and experts over the years.

The Maui County Council voted in 2019 to settle the lawsuit, but Victorino made a unilateral decision to continue with the appeal after county attorneys said the Council couldn’t drop the case on its own.

Victorino had said he was hopeful a favorable ruling by the Supreme Court could allow Maui to continue using the injection wells until the county finds a feasible alternative method to deal with the excess wastewater. He also said he wanted to avoid the potential of huge costs from lawsuits and onerous regulatory mandates.

The dispute turned into a national test case over the scope of the Clean Water Act and specifically over whether the law requires a permit when pollutants originate from a “point source,” such as a treatment plant, but end up in navigable waters via a “nonpoint source” such as groundwater.

Governmental and private interests across the country took sides, generally with “blue” states, conservation organizations and liberal- leaning groups lining up behind the Maui community groups, and the former Trump administration, government, industry and “red” states backing Maui County.

Maui Councilwoman Kelly Takaya King, who led the opposition to the Supreme Court appeal when she was Council chairwoman, said she’s been urging the administration to stop wasting money and end the appeals so the county can do something positive for the environment.

“I really the hope the administration can use this as a learning opportunity as we go forward,” she said Friday. “Let’s stop wasting time in court and work on solutions, not workarounds.”