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Judge denies county’s request to reconsider injection wells decision

Ruling requires county to seek a Clean Water Act permit for wells

An injection well at the Lahaina Wastewater Reclamation Facility is shown in September 2019. A federal judge has denied Maui County’s request to reconsider a ruling in July that the county must obtain a permit under the Clean Water Act for its injection wells, which discharge treated wastewater into the ground. The Maui News / MATTHEW THAYER photo

A Hawaii federal court on Wednesday denied Maui County’s request to reconsider its July decision that the county must obtain a Clean Water Act permit for its Lahaina Wastewater Reclamation Facility, according to court documents.

Maui environmental groups who sued the county in 2012 said Thursday that they hope this ends the yearslong exhaustive battle with the county over its use of injection wells in West Maui.

The case has gone as far as the U.S. Supreme Court, which in April 2020 sided with the groups in deciding that the injection wells fall under the Clean Water Act. The case was remanded back to the lower courts to sort out.

In July, U.S. District Court Judge Susan Oki Mollway of the District of Hawaii issued an order saying that Maui County “must obtain a permit under the Clean Water Act consistent with the analysis established by the Supreme Court.”

Maui County appealed the July decision, which was reaffirmed Wednesday.

“After a string of losses extending over nearly a decade of litigation, it’s time for the county finally to accept its kuleana towards the nearshore waters of West Maui,” said Lance Collins, spokesperson for one of the plaintiffs, the West Maui Preservation Association.

The association, along with three other groups — Hawai’i Wildlife Fund, Sierra Club-Maui Group and Surfrider Foundation, represented by Earthjustice — filed suit over the wells in 2012. The groups said the facility discharges millions of gallons of treated sewage into the ocean each day via groundwater, polluting local reefs and sea life. The groups pointed to studies that used dyes to trace the flow, which showed more than half the discharge from two wells was entering the ocean in a narrow area.

David Henkin, senior attorney at Earthjustice who argued the case before the Supreme Court and Hawaii district court, said in a news release that Wednesday’s ruling “is welcome news to everyone across the country who is fighting to protect clean, healthy water for future generations.”

“As the first court to apply the Supreme Court’s test, the court sent a strong message of hope to communities working to defend their oceans, rivers and lakes from polluters like Maui County that are fouling those life-giving waters by using groundwater as a sewer,” Henkin said.

The attorney added in a email Thursday morning that the only way the case can continue on is if the county appeals to the Ninth Circuit Court of Appeals. The deadline is Nov. 19.

“If the county does not appeal, the case will be over . . . finally . . . after almost a decade,” Henkin said.

A county spokesperson said in an email Thursday afternoon that “the County of Maui is reviewing the court’s order and considering next steps at this time.”

After the July ruling, the county said it was “disappointed” in the ruling “but prides itself on its environmental stewardship that began decades ago when its leaders made the decision to focus on water reclamation and reuse rather than ocean outfalls.”

Hannah Bernard, executive director of the Hawai’i Wildlife Fund, said in the news release that Mayor Michael Victorino “ignored” the Maui County Council’s resolution to settle the case, saying he needed the Supreme Court to provide “clarity” regarding the Clean Water Act’s requirements.

“Well, the Supreme Court ruled against the county, and now the Hawaii district court has too. How much ‘clearer’ can the county’s legal obligations possibly get?” Bernard said. “It’s high time for the county to stop wasting our taxpayer dollars on litigation and instead start investing in fixing the problem.”

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

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