Lawsuit against Maui County watched nationwide

In 2014, residents of Anderson County, in South Carolina, discovered that the underground planting line of energy company Kinder Morgan had ruptured, dumping hundreds of thousands of gallons of gasoline into groundwater and the ground. Much of the fuel ended up in parts of the Savannah River, but concerned citizens and environmental groups like Savannah Riverkeeper were powerless to hold Kinder Morgan accountable. Until 2018, when, after three years of litigation, local citizen groups can win in Circuit Court, asserting their ability to enforce the Clean Water Act against unauthorized pollution of the waterway by Kinder Morgan.

In the 1990s, County of Decatur, a small, predominantly rural county in Tennessee, made the decision to privatize its landfill. The company in charge of managing the site, Waste Industries, estimated that it could increase its profits by accepting “special waste” deemed “difficult or dangerous” to dispose of. Years later, and after accepting more than 640,000 tonnes of toxic smelting byproducts from aluminum companies, Waste Industries attempted to pull out of its contract with Decatur County and responsibility for the toxic leachate ( “Landfill juice”) coming from the landfill and polluting nearby. air and water. The Decatur County lawsuit against Waste Industries is ongoing.

In Minnesota, the Lake Superior Chippewa Bottom Strip, a federally recognized Native American tribe, collect fish and manoomin (wild rice) in the same places their ancestors did for hundreds of years. These traditional gathering places are however threatened by the development upstream of the mines, which discharge wastewater contaminated with mercury and sulphate. When these pollutants arrive at Chippewa gathering places, they kill the manoomin and make the fish toxic for human consumption.

These stories from across the country are among many found in amicus curiae (“friend of the court”) briefs filed in support of the Hawaii Wildlife Fund and against Maui County prior to oral argument. scheduled for the United States Supreme Court on November 6. With one side of the battle, including Anderson and Decatur counties and the Fond du Lac Band, fearing that a decision in favor of the county will “gut” Clean Water Act protections, and the other side saying that a HWF victory would expand the CWA (and the power of the United States Environmental Protection Agency), the federal implications are huge, making this a case that is being watched nationally by individuals , policy makers, businesses and advocacy groups. This is a case that has been brewing for years and goes back at least to 1973.

Treated wastewater from the LWRF is injected into underground wells, enters the groundwater and seeps into the ocean off West Maui

In 1973, the epicenter of the dispute, the Lahaina Sewage Recovery Facility, was just a design. When an environmental review was carried out, county consultant Dr Michael Chun made a statement accordingly: he said treated wastewater, or effluent, would be injected into wells and, significantly, he recognized that the pollutants would indeed emerge into the ocean – far from shore. At the time, it was considered a desirable alternative to discharging treated water directly into coastal waters.

Years after the review, the LWRF was in operation, pumping the effluent that could not be recycled into underground wells. And, although injection wells were originally intended to be used only as a back-up method for recovering water in times of excess, they have since become the county’s primary method of effluent disposal. .

According to 2018 court documents and in layman’s terms, that means a lot of doo doo water. The LWRF receives waste from a system serving 40,000 people. The water is then treated and some is sold for irrigation. But most of it – about three to five million gallons per day – is injected into groundwater where it ultimately makes its way to the ocean waters of the West Side. On a day of a 2.8 million gallon discharge, a county expert said, the effluent flow into the ocean is about 3,456 gallons per meter of coast, “roughly the equivalent of l ‘installation of a garden hose at all times every meter along the 800 meters. of the coast. About one in seven gallons of sewage entering the ocean near the LWRF is made up of well effluent. “

But the lawsuit is not about whether the treated sewage is heading to the ocean in places like Kahekili Beach – Maui County, as Chun did in 1973, acknowledges this is happening. The question is whether Maui County has the right permits to allow this to happen.

Although Maui County has the appropriate state Safe Drinking Water Act permit for the discharge of treated effluent into groundwater, it does not have a required National Pollutant Discharge Disposal System permit. by the federal law on clean water for discharges into surface water (counterintuitively, the standards for certain pollutants such as nitrates are stricter under the CWA than under the SDWA). Essentially, the county doesn’t think it needs an NPDES permit, as the EPA states: “The Clean Water Act prohibits anyone from discharging ‘pollutants’ through a’ point source ‘into’ water. of the United States ”, unless they have an NPDES Permit.

Because effluent from injection wells passes through groundwater (which the county does not consider to be “United States water”) before reaching the ocean, according to the county, injection wells cannot. not be considered a “point source,” a term broadly defined due to litigation, but recently by the EPA as “any discernible, confined, and discreet means of transportation, such as a pipe, ditch, a channel, tunnel, conduit, discrete crack or container ”.

Image of a reef off West Maui near the effluent seepage, taken 8/19/2019

“In conflict with this court and several appellate courts, the Ninth Circuit improperly extended the NPDES point source to cover diffuse source pollution, which is regulated in other ways,” the county said in its filing with the Supreme Court.

Of course, the Hawaii Wildlife Fund disagrees and, based on its reading of the case law, made points which were later accepted by the Ninth Circuit Court of Appeals, which said the Maui County responsible for its injection well practices. “The tribunal based its decision on three independent grounds,” he wrote in his opinion. “(1) the county ‘indirectly discharges[d] a pollutant into the ocean through a groundwater conduit ”, (2) groundwater is a“ point source ”under the CWA, and (3) groundwater is“ navigable water ”under of the [Clean Water] Act.”

So, in the end, the case that puts Maui County in the spotlight comes down to legal precedent and semantics. This is a clarification the county deems necessary, stating that “the Ninth Circuit has created a growing conflict over the distinction between point and diffuse pollution.” Critics of the county’s position argue, however, that the clarification will be influenced by the preferences of the judges appointed by Trump and will only serve to help the president’s campaign to roll back environmental protections.

“Maybe now you understand why county supporters are anxious to see the Supreme Court rule in favor of the county,” Earthjustice attorney Mahesh Cleveland said at a conference at the Maui Ocean Center and organized by HWF. “You will give them all a loophole in the Clean Water Act that would allow them to pollute with impunity as long as they use groundwater as a sewer.

“I mean, do you really think the pipeline industry cares about the people of Maui? Or the coal and gas industry cares about our reefs? Or that the extraction and hydraulic fracturing operations worry about smothering our beaches of algae? Of course not; it’s about money and deregulation.

Representatives from Sierra Club, Earthjustice, West Maui Preservation Association, and Hawaii Wildlife Fund present petitions signed by 15,962 people asking county council to settle LWRF case

On Wednesday, the Sierra Club and the Surfrider Foundation presented Board Chairman Kelly King with two petitions signed by more than 15,000 members across the country, which urged Maui County to settle the case and withdraw the appeal. the Supreme Court.

“The county’s refusal to protect an ecosystem in our backyard could put public health and drinking water at risk across the country,” said HWF Executive Director Hannah Bernard. “A Supreme Court ruling in favor of the county would have serious negative repercussions on water quality nationwide.

But for some, like Mayor Michael Victorino, it’s less about national implications than immediate impacts at home. “Staying the course with the county’s appeal to the United States Supreme Court protects our county and the taxpayers,” Victorino wrote in a recent Community Voices article for Honolulu Civil Beat, referring not only to the settlement, but also to the potential liabilities if the county loses. “[Staying the course] enables the county to continue to manage its recycled water disposal in the most environmentally and economically responsible manner currently available and feasible. “

“Staying on course”, however, also means continued infiltration of effluents into Maui’s already stressed marine ecosystem. Despite the mayor’s comment that “A short online search shows photos of fish, sea turtles and a coral reef that appear to be in relatively healthy condition in Kahekili,” a 2019 peer-reviewed study in Nature revealed that “the corals living in the [submarine groundwater discharge] infiltration zone are impacted by wastewater effluents injected into the LWRF.

These impacts included “nitrate concentrations up to 50 times higher than ambient seawater and lower pH of bottom water,” the study authors found, in addition to ” lower calcification and increased bioerosion in corals collected next to seeps ”.

Regardless of your definition of “point source” and “United States water”, coral disease and death will affect us all, ecologically, economically and culturally.

“We are stealing the relationship of future generations with these animals, plants and practices,” said Rhiannon Chandler-‘Iao, executive director of Hawaii Waterkeepers. “We prevent the transmission of cultural knowledge from one generation to the next when we lose our coral reefs and all the marine life they contain. For me, that is reason enough to settle this matter here at home, as if there was no life at stake on the continent.

It remains to be seen whether the public and council members see it the same way. The Maui County v. Hawaii Wildlife Fund case, and whether the county should pursue the dispute in the United States Supreme Court or settle with HWF will be discussed at a September 3 meeting of the Government Committee. , ethics and transparency of Maui. County Council. For up-to-date information on the County Council’s agenda, visit Mauicounty.us/agendas/

Cover design by Albert Cortez

Image 1 courtesy of Earthjustice

Image 2 courtesy of Marley Rutkowski

Image 3 by MauiTime

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