WAILUKU - If the Maui County Council agrees to avert a U.S. Environmental Protection Agency sanction of its Lahaina Wastewater Reclamation Facility, it will cost taxpayers and developers at least $4 million to safeguard a potential drinking water source that has not been and likely won't be tapped for human consumption.
The council's Policy Committee voted Wednesday to defer a decision while it gets more information.
The EPA has not issued a notice of violation or sued over injection wells, but it has informed the county Department of Environmental Management that it considers the Lahaina plant in violation of the Safe Drinking Water Act. That nobody is drinking the water does not matter.
This controversy is separate from the campaign against use of injection wells to dispose of treated sewage water on grounds that it seeps into the ocean and damages the marine environment. In this case, the contention is that the aquifer the wells reach is, or could be, a drinking water source.
Like all the aquifers around the borders of the island, the water under the Lahaina facility is more or less brackish. It has never been used for drinking water, and Deputy Corporation Counsel Jane Lovell, who negotiated the proposed settlement agreement, told the committee that probably the only way it could be used would be via desalination.
It would be expensive to build such a facility and power it with electricity, she said, and since on Maui, most electricity derives from imported fossil fuels, desalination would be environmentally questionable.
EPA Region IX maintains that the aquifer does come under the drinking water act. The state Department of Health long ago granted an exemption to the coastal aquifer, on the grounds that it is not a potential source of drinking water.
The test is in two parts: EPA can regulate an aquifer that "contains a sufficient quantity of groundwater to supply a public water system" and either does supply one or has less than 10,000 milliliters per liter of dissolved solids and is not exempt.
If it isn't a potable water resource, EPA cannot even ask for permits, Lovell said. But it gets complicated because the county has asked for renewal of state permits to continue injecting effluent, she said.
Council Member Mike White asked how many injection wells there are in the United States. Estimates vary between 400,000 and 1.7 million, but they are common. Except that Maui County is unusual in using them for its municipal sewage effluent. Other counties just dump wastewater straight into the ocean.
There is no estimate of how thick a layer of freshwater may lie atop the salty water in the aquifer, but the layer is thin. County officials said they think it would be even thinner if potable water were not used for irrigation, leaching down and thickening the natural "clean" layer created because freshwater, being lighter, floats atop salty water.
Committee Chairman Riki Hokama emphasized that no lawsuit or violation has been issued, and he seemed skeptical about spending money to address a situation in which the county has not, so far, been charged with any wrongdoing.
Lovell said negotiations were long and difficult, and there is the threat that EPA could sue the county - or the county could sue EPA.
The agreement is intended to forestall either. The county is not conceding that EPA is right about the aquifer's being a legal "underground source of drinking water." But the administration of Mayor Alan Arakawa is willing to set that controversy aside in the interests of solving the dispute over the Lahaina plant.
"It is a genuine compromise," Lovell said.
Kyle Ginoza, director of the Department of Environmental Management, said the upgrade to the plant's ultraviolet disinfection system was in the plans anyway, although doing it by the agreement's deadline of the end of 2013 will require reshuffling and delaying other capital improvement projects.
Depending on rainfall and how many tourists are in West Maui, the Lahaina plant generates up to 5 million gallons a day of effluent.
Some of it is treated to the highest standards for wastewater and sold for irrigation. The rest is dumped underground.
It will cost between $4 million and $5 million to double the ultraviolet disinfectant to treat all the effluent.
Intrawest, developer of Honua Kai, has agreed in principle to pay for some of the design work, expected to cost $700,000. Other developers at Kaanapali (Starwood and Hyatt) are expected to contribute as well.
They are under some compulsion to do so because their special management area permits require them to use reclaimed water for irrigation.
Ginoza said he had a positive meeting Tuesday with Intrawest and expects a firm decision within weeks.
Hokama indicated he was uneasy about an agreement that obligates the county to deliver its part on deadlines described by Lovell as "ambitious" and under the threat of penalties she called "potentially severe," while depending on private interests to provide some of the money.
The proposed agreement stipulates that if the Department of Environmental Management does not get disinfection standards up to agreed minimums, EPA could impose fines of $250 per day, escalating to $500 and then $1,000 per day.
Council Member Joe Pontanilla said he would be concerned about setting a precedent that could then be used against the county at the Wailuku-Kahului Wastewater Reclamation Facility.
White said he was "not comfortable to take part in precedent-setting when we accept a federal agency's making a determination not supported by the state Health Department."
And Hokama added: "If it's a violation, cite us."
Lovell said: "I don't think I can get a better deal."
* Harry Eagar can be reached at firstname.lastname@example.org.