Supreme Court decision would not ‘gut’ the Clean Water Act


There’s a lot of misinformation on social media and elsewhere, even within our own Maui County Council, about “settling” the Lahaina injection well lawsuit or “gutting the Clean Water Act.” One thing is certain: If special interest groups are allowed to control the county’s decisions, it will have long-term negative ramifications, not only for the county’s critical wastewater infrastructure and the recycled water program, but also for coastal property owners with septic or cesspools, with ripple effects into the housing market and economy.

For decades, the county has aggressively pursued wastewater reuse and produces the highest quality recycled water in the state. What is not used for landscape irrigation is disposed of into deep injection wells, operated in compliance with Safe Drinking Water Act Underground Injection Control permits.

In 2012, Earthjustice sued the county, claiming the UIC permits were not enough, and that federal Clean Water Act “NPDES” (National Pollution Discharge Elimination System) permits are also required. This was among a variety of similar lawsuits being brought across the nation by special interest groups seeking to expand the federal Clean Water Act to discharges to groundwater. Earthjustice prevailed at the 9th Circuit, and only now that the U.S. Supreme Court has agreed to hear Maui’s case, Earthjustice is reneging on the promises it made in a 2015 settlement agreement and lobbying hard for the county to withdraw its appeal.

There’s not much difference between an injection well, septic system, cesspool, stormwater or recycled water impoundment–all of these contain water and varying pollutants, which slowly mix with groundwater, filter through the soil and migrate out to the ocean. Permitting, like the law, is not one size fits all. The UIC program and other laws regulate groundwater discharges, while Congress designed the Clean Water Act to regulate direct discharges to surface water.

The NPDES permit program has been described as a cost-prohibitive “nightmare” for land-based discharges. The impacts of the 9th Circuit’s decision are not guesswork; the county’s case is already being cited across the country, including in lawsuits brought against condominiums using septic systems. It is doubtful the county could obtain or comply with an NPDES permit for its injection wells, and it would be impossible for most condominiums and homeowners.

Also, there is no viable alternative to the injection wells that would be cost effective or expedient. In my opinion as a licensed engineer and former director of the Department of Environmental Management, the only alternatives are ocean outfalls, since no other option would be able to accommodate large wet-weather flows. Implementing an outfall at each treatment facility is a daunting task since there are many technical impediments and many people are against outfalls. This comes at a steep cost as well, in the neighborhood of $200 million. To put this in perspective, this is one-quarter of the total county budget.

This is a zero-sum game: Hundreds of millions of dollars to do away with injection wells means hundreds of millions of dollars less to priorities like road repair, affordable housing, improving our watersheds or stopping runoff to the ocean. Also of great concern is the likely cessation of water reuse and groundwater recharge programs.

New development may be severely impacted because the county would likely limit connections to the wastewater facilities until an alternate disposal method is implemented. Construction in non-sewered areas like Hana, Haiku and portions of West Maui would be more expensive. Septic systems, which are an allowed disposal method, may no longer be legal under the 9th Circuit’s test. There are closed systems, but these are costly and require maintenance and regular pumping. This will increase the costs of affordable and workforce homes, costs that are already too expensive for many families.

Letting the U.S. Supreme Court decide this matter does not “gut” the Clean Water Act. Such an action affords our nation’s highest court to weigh in on an interpretation of federal law. It would be foolhardy to not allow the Supreme Court to adjudicate this matter as the ramifications extend beyond Hawaii to the western United States. The County Council must listen to county technical and legal advisers on this matter and continue with its appeal to the U.S. Supreme Court. Any other path is unacceptable.

* Kyle Ginoza was formerly the Maui County director of environmental management and holds bachelor’s and master’s degrees in mechanical engineering from Stanford University and a Masters of Business Administration from UCLA.