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Tentative deal reached in Kihei injection well suit

Lawsuit not related to Lahaina well case headed to U.S. Supreme Court

A lawsuit over Maui County’s Kihei injection wells — which is a separate and much older case than the current Lahaina injection well suit grabbing headlines — appears to be heading for settlement, both parties acknowledged Friday.

In 2009, the Puko’a o Kama Alliance filed a complaint against the county to stop the harm from underground injection wells used to dispose of treated sewage in South Maui. The group alleges that the use caused harm “to marine and coastal resources as well as negative impacts to traditional and customary practices of Native Hawaiians in South Maui,” according to a news release from the organization.

After 10 years of litigation, the alliance has agreed to settle the matter in exchange for the county’s commitment to continue reducing its reliance on injection wells in South Maui, the release said. The county has three injection wells in Kihei.

“It is our hope and belief that settling our case will show that resolving lawsuits in good faith will not lead to more litigation,” said Lance Collins, attorney for the Puko’a o Kama Alliance.

Collins was referring to the separate and unrelated Lahaina Wastewater Reclamation Facility injection well lawsuit from 2012 that is currently headed to the U.S. Supreme Court.

He said that because the Kihei case has been brought up many times in the discussions over the Lahaina case, plaintiffs in the Kihei case wanted to show that settlements can be reached.

“Daniel Kanahele (the head of the organization) feels strongly that the county really needs to resolve the Lahaina case and not litigate it until the end,” Collins said.

Collins added that he met with acting Corporation Counsel Moana Lutey this week regarding settlement of the Kihei case. He said an agreement has been reached and paperwork still needs to be finalized.

Maui County Communications Director Brian Perry said in an email Friday afternoon that the county is “reviewing a proposed settlement which involves a $1,000 payment by the county.”

“A portion of the proposed agreement relates to an existing county project. That planned project for Kihei treatment plant upgrades is among more than $15 million in beneficial water reuse projects included in Mayor Michael Victorino’s proposed fiscal 2020 budget.”

Perry added: “The County of Maui remains committed to reducing reliance on injection wells, producing the highest quality recycled water in the State of Hawaii and making recycled water available for beneficial irrigation use.”

Collins said that the Kihei wastewater lawsuit involves state laws and is based on the argument that the Kihei injection wells have negatively affected traditional and customary practices in South Maui, as well as impaired water quality.

The suit was filed in 2009, then the case was stayed by now retired 2nd Circuit Judge Joel August and referred to the state Department of Health for consideration, the news release said.

The DOH declined to take a position and the case was further stayed by 2nd Circuit Judge Rhonda Loo pending the final outcome of the Lahaina injection well case, the release said.

The Lahaina injection well case is centered on the federal Clean Water Act and whether the county should have a National Pollutant Discharge Elimination System permit for the injection wells, which the county does not have. The county instead has an Underground Injection Control permit issued by the Safe Drinking Water Branch of the state Department of Health.

On Thursday, the Maui County Council’s Governance, Ethics and Transparency Committee was deadlocked in a vote to recommend authorizing a settlement in the Lahaina case.

Members also were deadlocked over deferring the matter, and a tied vote automatically deferred the matter in committee, with committee Chairman Mike Molina saying the matter will be revisited “at some point this year.”

Plaintiffs Hawai’i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui group have revised their settlement offer, with some council members and some in the public urging the county to settle the suit, as they say the Clean Water Act will be decimated if the high court rules in the county’s favor.

Although county officials say they want clarity in the matter, which the court could bring, they fear possibly large fines, more lawsuits and the need for millions of dollars for infrastructure work to remove the treated wastewater by other means.

The lawsuit stems from 2012, when the four groups filed a complaint against the county over the wells at the Lahaina Wastewater Reclamation Facility, 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 the reach of the Clean Water Act. The court could hear the case as early as October.

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