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Council committee recommends settling injection well case

Lawmakers seek to end Clean Water Act case before high court

A Maui County Council committee worked late into Friday night and approved a settlement in the long-standing Lahaina Wastewater Reclamation Facility injection well case, which had made its way to the Supreme Court.

Members of the council Government, Ethics and Transparency Committee voted 5 to 3 to recommend that the full council settle and remove the case from consideration by the high court.

Those voting in favor were committee Chairman Mike Molina, Keani Rawlins-Fernandez, Shane Sinenci, Kelly King and Tamara Paltin. Those voting against were Alice Lee, Yuki Lei Sugimura and Tasha Kama. Riki Hokama was absent and excused.

The committee action comes as Maui County is scheduled to have its appeal heard before the Supreme Court in November. The case, which will have national implications, deals with the reach of the Clean Water Act.

The case stems from a lawsuit filed in 2012 by four environmental groups against the county over injection wells at the Lahaina Wastewater Reclamation Facility. Plaintiffs say the effluent is reaching the ocean and impacting coral reefs and sea life.

The county argues that the discharge of the treated wastewater from injection wells does not require permits under the Clean Water Act because the pollutants do not flow directly into the ocean, but rather indirectly through groundwater.

The high courts chose to hear the Maui County case because circuit courts around the country were split over the reach of the Clean Water Act. Maui County has lost in lower courts, most recently in the 9th Circuit Court of Appeals.

The council committee voted on a resolution to approve a settlement first proposed publicly by plaintiff Earthjustice earlier this year. The terms include:

• Community groups not bringing litigation for additional penalties as long as the county makes good faith efforts to reduce its reliance on the Lahaina injection wells and injection wells at other facilities as well.

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

• 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, or an equivalent control document, for the Lahaina injection wells.

Maui County Mayor Michael Victorino had proposed a new settlement offer and sought a closed session with members to hear the terms. But the committee deadlocked on going into closed session and never heard the mayor’s proposal.

Managing Director Sandy Baz said the administration did not want to disclose terms publicly without first briefing the committee in private, noting the need to protect the county and the council. Deputy Corporation Counsel Richelle Thomson offered the same legal advice to the council.

The committee deliberated from the early afternoon into the night with a vote taken around 9:30 p.m.

“I’m hoping members will think about it, our responsibility to our community and to the greater environment to vote to settle,” said King. “I think there is public outcry, let’s take care or our water, lets stop fighting our right to pollute.”

But Lee questioned the council’s authority to take the action to settle the case. It has always been an administrative function, she said.

“There has to be a separation of power,” she said.

Lee said it is unfair that some accuse the council and county of not being supportive of the environment. In the last budget session, the council approved more than $20 million for reuse and reduction of the use of injection wells.

Those seeking to settle the case worry about the impacts of ocean pollution and say a victory in the case would allow for continued pollution. They do not want Maui to be the poster child for decimating the Clean Water Act and claim a victory would align the county with President Donald Trump’s new Environmental Protection Agency leadership, which has been seen as easing environmental restrictions.

Supporters of the appeal before the high court say a decision will provide legal clarity about the scope of the Clean Water Act. They say withdrawal of the case could have ramifications for cesspool owners, who may face fines and be required to obtain permits, and for the county, which would be required to figure out what to do with the injection well water and could face costly wastewater upgrades.

State Department of Health Director Bruce Anderson on conference call with the committee Friday afternoon said that Maui County applied for a National Pollutant Discharge Elimination System permit several years ago for injection wells as ordered by a previous decision in district court.

But the DOH does not know how to deal with such a permit. He acknowledged that the department had been requiring an underground injection control or UIC permit instead.

“Issuing another permit is not going to solve the problem, it’s a paper process,” he told the council. “The solution is going to be in a way to reclaim that water and cease to use those injection wells (unless in) heavy rain or times you can’t use (the water) for irrigation.”

Anderson dispelled the claim that the state would start cracking down on individual cesspool and septic tank owners if the county settled the case. He said the state already has rules and regulations in place for those individual wastewater systems and would not require an NPDES permit.

Anderson said he did not know why a federal Environmental Protection Agency official said in a letter to Maui County attorneys that individual systems could be targeted for an NPDES permit if the county settled its case.

Friday’s meeting was a continuation of a meeting on Tuesday where 65 testified.

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