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11 • 29 • 2021

Decade-Long Litigation for Maui Clean Water Comes to Successful End

By Angela Howe

The court battle over pollution from Lahaina injection wells, which was heard before the U.S. Supreme Court in November 2019, has finally come to an end with the County of Maui’s acceptance ’s announcement last week that they will accept the court’s ruling and will not seek any further appeals. Surfrider Foundation, alongside Hawaii Wildlife Fund, Sierra Club – Maui Group, and West Maui Preservation Association, sued the County of Maui on April 16, 2012 for their polluting injection wells, and have prevailed at every level of the litigation. Remarkably, not only has Surfrider Foundation set good precedent with this case, in terms of how future Clean Water Act cases will be ruled upon, but we have also instigated marked improvements for Maui’s water quality, to the tune of $2.5 million designated for water quality improvements in West Maui.

Since the initial filing of the case almost a decade ago, the plaintiff environmental groups, represented by Earthjustice, have argued that the Clean Water Act prohibits these illegal discharges to the Pacific Ocean without a National Pollutant Discharge Elimination System (“NPDES”) permit. Surfrider Foundation and co-plaintiffs filed the case originally to address the unpermitted discharges and the detrimental effects on the water quality and health of the nearshore coastal waters and ecosystem, particularly in the Kahekili Beach area of West Maui, where multiple freshwater seeps containing wastewater were detected.

After the U.S. Supreme Court win for clean water in April 2020, the County of Maui still pursued their arguments against the “functional equivalency” test set by the High Court. The County argued that it did not a need permit because the treated wastewater was not entering the ocean directly, but rather indirectly through groundwater. On remand this year at the federal District Court of Hawaii, Judge Mollway agreed with environmental groups that the injection well discharges were the functional equivalent of a direct discharge and therefore subject to regulation by the Clean Water Act. The remand decision came on July 15th of this year, but the County asked for reconsideration again. The Hawaii federal court denied the request for reconsideration in October.  The County of Maui announced on October 19, 2021 that it would not appeal that decision to the Ninth Circuit Court of Appeals, which ends the many years of litigation on the issue.

According to a September 2015 partial settlement of the case, the County agreed to spend $2.5 million dollars on water quality improvements and reuse projects on West Maui, if they did not prevail on appeals. The 2015 settlement agreement requires the County to divert and reuse the Lahaina facility wastewater by funding and implementing water reuse projects, and pay $100,000 to the U.S. Treasury. The County is also obligated to make good faith efforts to secure an NPDES permit, and bring its facilities into legal compliance.

Surfrider Foundation will help usher in the water quality improvements, including maximizing the beneficial use of recycled water on Maui. This will include a reduction or elimination of injection wells at the Lahaina Wastewater Reclamation Facility. The County is already involved in rehabilitation of upper-elevation reservoirs in the area; this will allow water to be pumped and stored for use on the slopes to provide water for irrigation as well as establish a greenbelt for fire protection. As Earthjustice attorney, David Henkin points out “The treated wastewater that is injected into the wells may be death to the reef, but it is a valuable freshwater resource that can be used to irrigate agriculture, golf courses and landscaping in arid West Maui.”

“This case has been a long road for the Surfrider Foundation and the Maui Chapter. We are thankful to the Maui Chapter leaders and volunteers who have been involved in this campaign, as well as our environmental partners. Over the last decade, our strong community network has kept constant pressure on the County of Maui to ensure that our ocean waters are clean and safe for our families, community, and visitors,” stated Lauren Blickley, Surfrider Foundation Hawai’i Regional Manager.

The finality of this important case is without doubt a sweet moment for the Surfrider Foundation. Although Surfrider uses litigation as a last resort in our ocean conservation campaigns, there are times when we must go to court to defend clean water. Surfrider Foundation will continue to protect water quality and coastal resources on Maui, and around the nation, with the powerful resources of our network, policy experts and Legal Department in the future.