After the U.S. Supreme Court’s rejected Maui County’s argument that it doesn’t need Clean Water Act compliance to inject treated sewage into groundwater that eventually winds up in the ocean, Mayor Michael Victorino said he viewed the 2020 ruling as a “step toward the clarity” county officials had sought on the matter.
Such clarity was firmly underscored last week when a federal judge ruled that a pollution discharge permit is required for the operation of injection wells at the county’s Lahaina Wastewater Reclamation Facility. The permit set limits on pollutants that can be released into a federal waterway.
While there’s an option to appeal U.S. District Judge Susan Oki Mollway’s judgment, it’s plain that Maui County should now focus on fixing the environmental problem rather than spending more taxpayer money on lawyers fighting a losing battle — one that would likely extend the case’s long losing streak.
The Clean Water Act (CWA), which has been in place since the early 1970s, bans disposal of pollutants directly into surface waters, including oceans. At the heart of Maui County’s case is whether the law’s ban also should apply to indirect dumping via injection well — a deeper-than-wide pipe placed vertically in the ground.
Since the 1980s, the Lahaina facility has been using injection wells for daily disposal of millions of gallons of treated sewage, pumping it into groundwater beneath land about a half-mile from the shoreline. Given evidence that the flow is reaching surface waters off Kahekili Beach Park — and contributing to algae blooms that can spur coral demise — it appears clear that direct and indirect pumping deliver the same polluting effect.
University of Hawaii scientists have conducted a
tracer-dye study that conclusively linked treatment-plant discharge with tainted near-shore waters. And U.S. Geological Survey research has found that discharge from injection wells has been drastically undermining the marine area for years.
Seven years ago, Earthjustice sued Maui County on behalf of community groups, maintaining that the county’s use of injection wells violates the CWA. After the county repeatedly lost in court, it appealed to the U.S. Supreme Court, which ruled that injecting treated sewage into groundwater that flows to the ocean is the “functional equivalent” of a direct discharge covered by federal law.
The high court then sent the case back to the lower court, where Mollway confirmed that in Maui County’s case, specifically, the functional-equivalent test holds up.
This first application of the U.S. Supreme Court’s test comes as a welcome victory for clean water and, as Earthjustice has noted, “common sense.” Had the court sided with Maui, the upshot could have been a severe weakening of one of the nation’s premier environmental protection laws.
In 2019, the Maui County Council voted to settle the lawsuit, but Victorino made a unilateral decision to continue pursuing appeal. Victorino had said he was hopeful the Supreme Court could allow the county to continue using injection wells until it 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 — as well as unclear regulatory requirements.
Moving forward, Maui should swiftly own up to its environmental responsibility by forgoing another appeal — instead accepting settlement terms negotiated in 2015 that mandate investment of at least $2.5 million in infrastructure to reuse treated wastewater from the Lahaina facility for irrigation in arid West Maui terrain.
The settlement also requires the county to obtain the CWA’s pollution discharge permit for the facility, which will impose needed safeguards against harm to water quality and reef health.
