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U.S. Supreme Court will hear Clean Water Act case tied to West Maui wastewater plant

By Staff | Feb 28, 2019

HONOKOWAI – The U.S. Supreme Court has agreed to take up an appeal of a Clean Water Act case concerning treated sewage flowing into the Pacific Ocean from injection wells at the Lahaina Wastewater Reclamation Facility (LWRF).

The Lahaina Groundwater Tracer Study finalized in June 2013 confirmed the hydraulic connection between the injection of treated wastewater effluent at the county plant in Honokowai and nearby coastal waters.

The treated sewage flows with groundwater into near-shore waters off Kahekili Beach.

Last March, the Ninth U.S. Circuit Court of Appeals ruled that Maui County has been violating the federal Clean Water Act since its Lahaina Wastewater Reclamation Facility was first put into operation in the early 1980s.

The LWRF that serves West Maui sends 3,000,000 to 5,000,000 gallons of treated sewage into the ground daily via injection wells.

“We are confident the Supreme Court will agree with the appeals court that when Congress passed the Clean Water Act to protect our nation’s waters, it did not give polluters a loophole to use groundwater as a sewer to convey harmful pollutants into our oceans, lakes and rivers,” said David Henkin, Earthjustice staff attorney based in Honolulu.

Maui County spokesman Brian Perry said the U.S. Supreme Court’s decision to grant Maui County’s petition to hear its ongoing West Maui injection well case means there’s hope the county won’t be forced, ultimately, to develop offshore sewage outfalls.

“I welcome the opportunity to have our case heard before the U.S. Supreme Court,” Maui County Mayor Michael Victorino said.

Perry commented, “Last year’s Ninth Circuit Court of Appeals decision jeopardized Maui County’s ongoing, environmentally progressive recycled water and green infrastructure program. The county already has received an appeal from a South Maui condominium complex that seeks to avoid using recycled water because, in part, of fear of being exposed to a lawsuit.

“The Ninth Circuit ruling left Maui County and its taxpayers with the impossible task of addressing ocean water quality with an unworkable permitting program that was designed to be applied to ocean outfalls,” Perry continued.

“Maui County takes seriously its mission to protect the public’s health, safety and environment. Since the early 1990s, the county Department of Environmental Management has completed more than $40 million in recycled water projects, and nearly $70 million in projects are in the pipeline.”

In 2011, a U.S. Environmental Protection Agency-funded study used tracer dye to show conclusively that LWRF-treated sewage flows with groundwater into near-shore waters off Kahekili Beach.

LWRF treats recycled water to the highest quality in the state, but Earthjustice contends the injected material still contains a variety of contaminants, including excess nutrients that have been linked to algae blooms and are shown to damage coral reefs.

Four Maui community groups represented by Earthjustice – Hawaii Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association – sued the county in 2012, seeking to protect the sensitive coral reefs at Kahekili.

In 2017, the U.S. Geological Survey, state Division of Aquatic Resources and researchers published a peer-reviewed study documenting the ongoing, serious harm to the reef at Kahekili associated with the LWRF’s discharges to the ocean.

Reported in the Lahaina News in November 2017, the study “Vulnerability of Coral Reefs to Bioerosion From Land-Based Sources of Pollution” found that pollution in the form of treated wastewater from the LWRF has drastically weakened local coral reefs for more than ten years.

Also, by increasing local seawater acidity and nutrient levels, the polluted water has instigated harmful bioerosion and inhibited coral reef growth.

Over the past four decades, the Environmental Protection Agency and states across the country have used their Clean Water Act authority to prevent a variety of industries – including wastewater treatment facilities, chemical plants, concentrated animal feeding operations, mines, and oil and gas waste-treatment facilities – from contaminating the nation’s waters via groundwater, Earthjustice reported.

According to Earthjustice, the final outcome of this case “could determine whether the public will continue to be protected from harmful polluting activities.”

Maui County asserted that if the court’s decision is allowed to stand, thousands of residents and businesses could be required to obtain National Pollutant Discharge Elimination System Permits for recycled water irrigation systems, cesspools and septic systems.

“We all want unpolluted waters, healthy coral and fish. But we want workable solutions, not onerous and costly government red tape. This is a home-rule issue that should be addressed here, not by far-off regulators imposing rules that don’t properly address our real world problems,” Perry said.

“We need time and the funding to continue pursuing beneficial uses for recycled water and cost-effective ways to transport it from the Lahaina Wastewater Reclamation Facility to recycled water customers. This is not only a Maui County issue – it’s one that has grabbed the attention of the national recycled water community.