WAILUKU – Maui County has lodged a settlement agreement with the U.S. District Court in Honolulu involving environmental organizations that sued over the county’s operation of the Lahaina Wastewater Reclamation Facility’s underground injection control (UIC) wells and the impact on near-shore waters in North Kaanapali.

The agreement settles the penalty phase of a lawsuit brought by the four citizen groups – Hawaii Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui Group – who claimed the county needed a National Pollutant Discharge Elimination System (NPDES) Permit, under the federal Clean Water Act, for its disposal of treated wastewater through wells into the groundwater below the Honokowai facility.

The plant’s operations are allowed under existing permits issued by the Hawaii Department of Health (DOH) and the U.S. Environmental Protection Agency (EPA) under another federal regulatory program, the Safe Drinking Water Act, the county reported.

If the appeal is successful, the county will continue operating the facility under the state and federal Safe Drinking Water Act permits. The county has also agreed to implement a $2.5 million water reuse project in West Maui.

If the appeal fails, the county will also need to obtain an NPDES permit for continued operations. The county reported that it applied with the Department of Health for a NPDES permit two years ago. To date, DOH has not issued or commented on the permit application.

The proposed settlement agreement is posted online at www.earthjustice.org (search for “Lahaina”).

Earthjustice noted on the site, “Maui County and four community groups represented by Earthjustice… lodged a settlement in federal court that requires the County to come up with safer ways to dispose of wastewater at its Lahaina Wastewater Reclamation Facility.”

On May 30, 2014, the federal district court in Honolulu ruled that Maui County is violating the Clean Water Act by using injection wells to discharge treated wastewater from a sewage treatment plant in West Maui.

According to Earthjustice, the court concluded that most of the three million to five million gallons of treated wastewater Maui County’s Lahaina Wastewater Reclamation Facility dumps into the wells each day flows through groundwater and emerges offshore of Kahekili Beach Park, where the wastewater-laden groundwater “substantially affects the physical, chemical and biological integrity of the ocean water.”

Following a 45-day review period by the EPA and the U.S. Department of Justice, the settlement agreement is anticipated to be entered by the court. The terms of the agreement allow for an expeditious appeal of the lower court’s rulings.

“We expect that there will be significant interest in the appeal of the lower court’s decisions from other potentially affected municipalities and states across the nation,” said Mayor Alan M. Arakawa.

“This national battle is being fought at the expense of Maui’s taxpayers.”

According to the county, in many other states, recycled water is being discharged to groundwater for a variety of accepted purposes, including aquifer recharge and as a saltwater intrusion barrier (the freshwater forms a barrier, so that the saltwater does not intrude into a freshwater aquifer).

In issuing its liability rulings, the district court developed a new “conduit” theory of Clean Water Act liability – one that states that the groundwater acts as a conduit for the treated effluent to reach the ocean a half-mile away.

The court’s theory acts to extend the reach of the Clean Water Act to groundwater, which has historically been regulated under the Safe Drinking Water Act, the county noted.

The EPA estimates there are anywhere between 400,000 and 650,000 Class V UIC wells – the type of UIC well at issue in the county’s case.

In Hawaii alone, the EPA reports that there are more than 5,600 such wells.

“The court’s rulings have far-reaching implications, not only for Maui County but for the state and other local governments, which is why the county must appeal this decision,” said Mayor Arakawa.

“The ruling leaves municipalities in regulatory limbo.”