Plaintiffs revise settlement in injection well case

County wouldn’t need to make ‘admission’ regarding wells’ impact on the environment

Plaintiffs in the long-standing injection well case against Maui County revised their settlement offer last week after meeting with Mayor Michael Victorino and county attorneys on the case that is currently headed to the U.S. Supreme Court.

If settled, the case would end a seven-year legal battle over the use of injection wells at the Lahaina Wastewater Reclamation Facility.

In 2012, four environmental groups sued the county over the wells, saying the effluent was reaching the ocean and impacting coral reefs. In 2014, the U.S. District Court in Hawaii ruled that the county’s use of injection wells was a violation of the federal Clean Water Act.

The county appealed to the 9th U.S. Circuit Court of Appeals and lost in February 2018. The court denied the county’s request to reconsider the ruling in March 2018. However, earlier this year, the U.S. Supreme Court agreed to hear the case after circuit courts around the country were split over their ruling on the reach of the Clean Water Act. The court could hear the case as early as October.

In the latest settlement offer dated May 9, plaintiff attorneys with Earthjustice said that if the county settles, the county “makes no admission regarding whether” the Lahaina Wastewater Reclamation Facility injection wells have an adverse effect on the nearshore marine environment.

Previously, a paragraph in the settlement would have the parties recognize the scientific studies showing the specific impacts of the LWRF injection wells on the nearshore marine environment, according to the confidential settlement communication sent from Earthjustice to Maui County Department of Corporation Counsel officials.

That was one of the larger changes in the latest settlement communication. Although the communication was labeled “confidential,” it notes that plaintiffs requested it be made public, “in the spirit of public transparency.”

The proposed settlement also calls for parties to jointly dismiss the county’s pending appeal to the U.S. Supreme Court.

Maui County Council Chairwoman Kelly King has expressed interest in seeing the county withdraw its appeal. A resolution by King to approve the settlement is listed as a county communication item on Friday’s council meeting agenda. Communication items are typically referred to committee.

King is also placing on the council agenda a communication item brought up at the April 24 full council meeting. It is a resolution that calls for all settlement offers in the case to be sent to the council for approval or disapproval.

King had said that she wanted the county to withdraw its appeal and instead focus on solutions and settlement. She feared that the Supreme Court could rule in favor of the county and in doing so demolish the Clean Water Act.

She said the Maui County case has garnered national attention and didn’t want to see the county “lead that charge” to demolish the act.

The resolution at the April meeting was referred to the council’s Governance, Ethics and Transparency Committee after a motion to waive council rules to allow the council to act on King’s resolution on the floor failed.

At the 2019 Maui County Democratic Convention on April 27, there was unanimous approval of a resolution to urge the county to withdraw its appeal before the U.S. Supreme Court and “instead focus on proactive, collaborative, and constructive solutions to reduce and control pollution from the Lahaina Wastewater Reclamation Facility and promote beneficial and necessary water reuse.”

Earthjustice attorney Isaac Moriwake said on Monday afternoon that plaintiffs wanted to share the latest settlement publicly as it is “of great public interest and importance” and “it is important to shine a public light on it.”

“We think we can work together with the county on this, this was always our goal even before we brought the lawsuit,” he added on Monday afternoon.

Moriwake said that plaintiffs have been meeting with Victorino and that “he’s committed to solutions.”

Moriwake said that the “proof is in the pudding, too,” as Victorino put “millions” of dollars toward fixing issues with the Lahaina Wastewater Reclamation Facility, which the council has also kept in its current version of the budget.

“Everyone, I feel is pointed in the right positive direction,” Moriwake added.

In an email Monday afternoon, Maui County Communications Director Brian Perry said: “With respect to this case, Maui County seeks clarity in how the Clean Water Act applies to permits for reclaimed wastewater for beneficial reuse. The County of Maui supports implementation of the federal law to protect the environment while not bankrupting taxpayers. For now, we reserve comment on the merits of the current settlement offer.”

Other details of the settlement include:

• Pursuant to the previously entered settlement agreement and order, the county would make good faith efforts to secure and comply with the terms of a National Pollutant Discharge Elimination System permit for the LWRF injection wells and would fund and implement one or more projects in West Maui, to be valued at a minimum of $2.5 million, to divert treated wastewater from the LWRF injection wells for reuse.

• Pursuant to the parties’ prior agreements, which have been entered as court orders, the county would reimburse the community groups’ costs of litigation in District Court and the 9th Circuit Court of Appeals.

• The county must also pay a $100,000 penalty to the U.S. Treasury. While the plaintiffs said they have “no desire” to have the county pay the fine, “the parties were required to include this relatively modest penalty in the settlement in order to secure approval from the Environmental Protection Agency,” which reviews all Clean Water Act citizen suit settlements.

• Community groups will not bring litigation seeking additional penalties as long as the county makes good faith efforts to reduce its reliance on the LWRF injection wells and injection wells in general as well as other measures.

• The parties recognize that various factors contribute to the stresses on the marine environment, including climate change, ocean acidification and other human-caused pollution.

* Melissa Tanji can be reached at mtanji@mauinews.com.

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