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Mayor: Injection well settlement could cost county $800 million

Supporters of ending suit call this ‘Chicken-Little’ predictions

Maui County Mayor Michael Victorino said Thursday afternoon that if the county settles a lawsuit over wastewater injection wells before the U.S. Supreme Court — as a majority in the County Council appears poised to authorize — it could cost the county more than $800 million in fines, required improvements and legal fees.

The council will be hearing the settlement resolution at its meeting beginning at 9 a.m. today in Council Chambers.

A plaintiffs’ attorney said late Thursday afternoon that the mayor’s statement was an act of “last-minute desperation‚” and that he has “stooped down to all-out Trumpian fearmongering.”

“Contrary to the mayor’s Chicken-Little predictions of ‘gazillions’ of fees and fines, in reality, the county hasn’t paid a single cent of fines despite polluting the reefs off of Kahekili Beach for decades,” said Isaac Moriwake, an attorney for Earthjustice, which represents the four plaintiffs. “Instead, the county and the Maui community group plaintiffs worked out an arrangement to fund $2.4 million in water reuse solutions.

“That’s how it goes when people work together, rather than fight to the death in court.”

The case stems from a lawsuit filed in 2012 by the Hawai’i Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation and West Maui Preservation Association 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 and that the county is in violation of the Clean Water Act.

Despite losing in the courts, including in the 9th Circuit Court of Appeals, the case ended up in the Supreme Court and will be heard in November. The main issue to be decided by the high court is whether the Clean Water Act applies to groundwater flows into rivers, lakes and the ocean or to just direct flows.

The Alan Arakawa administration fought the lawsuit during his two terms as mayor, and Victorino, who took office in January, is continuing the approach.

Some council members have expressed their opposition to the legal tack taken by the mayor, and are seeking to have the administration settle the lawsuit.

The council Government, Ethics and Transparency Committee voted 5 to 3 on Sept. 6 in favor of a resolution urging the mayor to settle the lawsuit. That measure, which requires only one vote in the full council, is up for final action in the council today.

On the eve of the meeting, Victorino issued a statement, saying that “it’s important for everyone, council members and our residents, to fully understand the impacts of withdrawing this case from consideration by the U.S. Supreme Court.”

He said a settlement could lead to “a projected doubling and nearly tripling of sewer rate fees in the next five to 10 years; fines of nearly $1 million per day for Maui County’s 18 injection wells; a projected cost of $150 million to $200 million per treatment plant for conversion to ocean sewage outfalls; and payment of more than $1.1 million in plaintiffs’ attorneys fees and costs.

“All this for an uncertain impact on the nearshore environment, which receives other sources of pollution, such as fertilizer residue, land-based sediment and cesspools,” he continued.

The mayor said that if the county settles and the 9th Circuit ruling stands:

– Injection wells will need to be converted to direct dumping into the ocean, which provide more regulatory certainty under the Clean Water Act. The cost would range from $150 million to $200 million per wastewater facility. Taken together for the four wastewater treatment plants, the cost could reach $800 million.

– The county would face Clean Water Act maximum fines of $53,000 per day for each injection well at the four wastewater reclamation facilities — four wells in Lahaina, eight in Kahului, three in Kihei and three on Molokai. This would expose the county to potential fines of almost $1 million per day for those 18 injection wells.

– With sewage ratepayers funding wastewater facilities, the Department of Environmental Management estimates that sewer rates would double in five years to pay for financial impacts and almost triple in 10 years. This means residents who currently pay $73 per month would pay $150 in five years and $209 a month in 10 years. There would be similar increases for commercial customers. Those who currently pay $8 per 1,000 gallons and would pay $16 in five years and $25 in 10 years.

The county also would be on the hook for plaintiffs’ attorneys’ fees and costs in excess of $1.1 million, $100,000 to the federal government and $2.5 million in water reuse projects in West Maui, the mayor said.

The county’s bond rating also could be negatively impacted. There could be delays in getting permits for affordable housing projects if projects have pollutant discharges that are “fairly traceable” to a body of water, which would require a Clean Water Act permit, Victorino said.

“My administration is fully committed to eliminating injection wells, except for emergency backup uses,” Victorino said. “We are not there yet. It will take time and money, and the cooperation of our recycled water customers.

“I ask for our day in court to allow the U.S. Supreme Court to clarify the regulatory reach of the Clean Water Act and whether a permit under that act is required for Maui County’s injection wells.”

Moriwake said, “we’re glad that the Victorino administration ‘is fully committed to eliminating injection wells, except for emergency backup uses.’ That’s what we’ve always wanted too, and what the state Department of Health said should be required.

“The mayor says it will take time and money, and that’s exactly what the settlement will give the county. If the mayor is really serious about fixing the injection well problem, then let’s get to work together now, rather than working with the Trump Administration to gut the Clean Water Act.”

Earthjustice also is willing to forego its legal fees in the case if the county settles the case, Moriwake said in a letter to council Chairwoman Kelly King on Thursday.

“Earthjustice pledges and commits that if Maui County settles this case and withdraws its appeal, Earthjustice will forbear the reimbursement of its attorney’s fees and limit the reimbursement of litigation costs to the amount of the community groups’ out-of-pocket costs, only which total $132,306.69, plus post-judgment interest,” according to the letter.

Moriwake said the environmental groups “have never expressed or shown any interest in having the county spend money on litigation.” They have sought instead “to encourage the county to invest its taxpayer dollars to find solutions.”

Moriwake was reminded of the City and County of Honolulu fighting requirements to modernize its antiquated sewer system.“Honolulu wasted tons of time and money fighting the improvements and threatened citizens with increased sewer fees,” he said.

“Guess what: the sky didn’t fall,” Moriwake said.

The same will happen (or not happen) with Maui County when it embraces the responsibility to modernize its wastewater system, instead of trying to defend the outdated status quo and destroy the law to boot.

“The Victorino and Trump administrations are not only joining forces to attack our nation’s cornerstone clean water law, they’re also spreading the same style of propaganda.”

Lee Imada can be reached at leeimada@mauinews.com.