The bigger picture of the Lahaina injection well lawsuit
The Lahaina injection wells have been a hot topic lately, with members of the groups who sued Maui County now urging the County Council to withdraw from the U.S. Supreme Court. The Governance, Ethics and Transparency Committee will hear the plaintiffs’ request that Maui County abandon its appeal to the U.S. Supreme Court at 9 a.m. Tuesday. The last time the committee heard this item, it resulted in a 4-4 split.
The implications of this case go far beyond just the Lahaina injection wells, which are used to dispose of highly cleaned recycled water that’s not otherwise used for irrigating golf courses and landscaping. The EPA has said that if the 9th Circuit Court’s decision stands, it must apply this decision in Hawaii and throughout the western United States. The County’s Department of Environmental Management confirmed with the state Department of Health that discharges into groundwater that eventually reach the ocean will require Clean Water Act “NPDES” (National Pollutant Discharge Elimination System) permits. This directly affects common uses such as septic systems and cesspools, drainage systems, recycled water systems and other wastewater systems; future development of housing and affordable housing because every development requires a drainage basin or subsurface drainage systems; and potable water because recycled water will be minimized or shut down along coastal areas.
The Clean Water Act was not designed by Congress to apply to these types of discharges to groundwater, and both from the county’s and private side, this creates a costly and potentially impossible regulatory burden. For the county’s four wastewater reclamation facilities, it means immediately moving toward ocean outfalls — this is to the tune of approximately $130 million to $150 million per plant, and this does not include the costs of land acquisition.
For private homeowners in the coastal areas, or anywhere near a gulch or waterway that could drain into the ground and out to the ocean, this means your system is in violation of federal law. There are individual wastewater systems that don’t utilize the ground’s natural filtration, but these self-contained systems are costly, require maintenance and ongoing electrical expense, and pumping.
Real estate industry specialists express concerns about the impacts of the 9th Circuit’s decision on property values. If properties are in violation of federal law, owners are not only required to come into compliance, but the violation will need to be disclosed on property sale or to a mortgage lender. Property values affect property taxes, which impact the county’s budget.
The scope and cost of this decision is immense. Housing and other development will be affected because every project is required under law to contain stormwater onsite, and standard practice is to install drainage basins or “rain gardens” to accomplish this. These are specifically designed to collect stormwater (containing “pollutants” under the Clean Water Act) and drain to the groundwater and — like the injection wells — out to the ocean.
The plaintiffs brought suit to expand the Clean Water Act, not only to the injection wells, but to all of these other types of uses that have been traditionally regulated by other laws. The 9th Circuit’s decision undermines state sovereignty over Hawaii’s groundwater resources, and transfers this authority to the federal government. It will negatively impact our valuable potable water resources, because using recycled water near the coastline could trigger costly and impossible permitting. And, proponents of withdrawing this case from Supreme Court review may say that the Department of Health doesn’t have “plans to enforce” against individual homeowners, but DOH did not enforce against the county either. This is because the county has been in compliance with existing laws that govern its activities. Citizen’s suits under the Clean Water Act can be brought by anyone claiming that a source of pollutants can be traced from a source to the ocean.
We must have certainty in knowing how common practices are regulated, and the only way to accomplish this is to allow the U.S. Supreme Court to clarify this law. If you wish to submit testimony to the County Council on this matter, it can be emailed prior to the meeting on Tuesday to Get.Committee@mauicounty.us. In the subject line, write “Hawaii Wildlife v. County, GET-26.”
* Scott Rollins is the acting chief of the county Department of Environmental Management’s Wastewater Reclamation Division.