Maui ends legal fight over pollution

Maui County has decided not to appeal the latest U.S. District Court decision regarding pollution from its Lahaina sewage treatment plant, ending a lengthy legal battle that went all the way to the U.S. Supreme Court.

U.S. District Judge Susan Oki Mollway in July ruled that a Clean Water Act permit is required for the operation of the injection wells at the Lahaina Wastewater Reclamation Facility. Then Mollway last month denied a motion by the county to reconsider her ruling.

The county announced Nov. 19 it would appeal no more. In a news release posted on its website, the county said it would work with the state to comply with court demands.

“We welcome Maui County’s decision to abide by Judge Mollway’s decision,” Earthjustice attorney David Henkin said in an email. “It is high time for the county to stop wasting time and money on litigation (about $5 million on outside lawyers and experts) and to start focusing instead on fixing the problem, as we have urged them since first engaging on this issue over 13 years ago.”

Now that there’s a final determination that the Lahaina injection wells are violating the Clean Water Act, the county must comply with the terms of a settlement reached in 2015 by the litigating parties. The settlement requires the county to invest at least $2.5 million on projects to increase reuse of treated wastewater from the Lahaina wastewater facility.

“This is a win-win for the people of Maui County, who depend on a clean and healthy environment,” Henkin said. “The nutrient-laden is death to the reefs if injected, but is a valuable resource that can help meet irrigation needs in arid West Maui (for agriculture, landscaping, golf courses, etc.).”

In the news release, Corporation Counsel Moana M. Lutey said Maui County’s goal in the case was always to seek clarity in the law.

In April 2020 the U.S. Supreme Court rejected as “unreasonable” the county’s argument that it doesn’t need to comply with the Clean Water Act to inject treated sewage into the groundwater that eventually ends up in the ocean.

As part of its ruling, the high court established a seven-part test and then sent the case back to the District Court to apply that test.

Mollway reaffirmed her previous decisions by determining that the county does in fact need a Clean Water Act permit because of the pollution that reaches the ocean.

“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,” Lutey said.

In its release, the county said its focus has been on maximizing the beneficial reuse of recycled water and reducing or eliminating the use of injection wells.

“The County has been actively working toward these outcomes for decades,” the release said. “In Lahaina, the Department of Environmental Management is rehabilitating upper-elevation reservoirs so that the water can be pumped and stored there for use on the slopes. This can provide water for irrigation as well as establish greenbelts for fire protection.”

For decades Maui’s Lahaina sewage treatment plant has been discharging millions of gallons of treated sewage daily into groundwater near Kahekili Beach.

In 2012, after years of complaints from the community and unsuccessful negotiations with county officials over the toll the pollution has taken on reef and marine life, Earthjustice sued Maui County on behalf of four Maui community groups: Hawai‘i Wildlife Fund, the Sierra Club Maui Group, Surfrider Foundation and West Maui Preservation Association.

Studies from at least two federal agencies have shown that treated wastewater travels in the groundwater and winds up in the ocean, where it harms coral reefs.

Despite the evidence, the county continued to fight the case, eventually appealing to the U.S. Supreme Court in 2019. Although the Maui County Council voted to settle the lawsuit, Mayor Michael Victorino made a unilateral decision to continue with the appeal after county attorneys said the Council didn’t have the authority to drop the case on its own.

Victorino had said he hoped for a favorable ruling by the high court so that Maui could continue to use the injection well system until the county finds a feasible method to replace it. He also said he wanted to avoid 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 but end up in navigable waters via a nonpoint source such as groundwater.