July 06 2011

Surfrider Foundation Maui Chapter Sues Over Injection Wells

by Angela Howe

Surfrider Foundation, along with several other community groups represented by Earthjustice, sent a Notice of Intent to Sue for Clean Water Act violations to Maui County on June 28, 2011.  The suit stems from the nearshore water quality impairment caused by the ongoing violations of the Lahaina Wastewater Treatment Plant.  The County’s facility injects millions of gallons of wastewater into the ground everyday.  Although it is treated to some extent at the facility, the water is still full of bacteria, chemicals and other pollutants that contaminate ground water and is then passed on into Maui’s nearshore waters.  At the shore, the water degradation presents health risks, harm to marine life and promotes algae blooms.

The lawsuit was brought by and through Surfrider Foundation’s Maui Chapter, partnering with Hawai’i Wildlife Fund, West Maui Preservation Association, and Sierra Club-Maui Group.  In addition to the many other successful community activities, the Surfrider Foundation Maui Chapter has worked on nearshore water quality issues for many years, especially with respect to recreational hot spots, like the town of Lahaina on the Northwest side of the island.  Surfrider Foundation Maui Chapter has sponsored a water quality testing program (for coliform levels) in ocean waters for many years in cooperation with local Health Department.  This suit would fulfill the Surfrider Foundation’s objective of working towards protecting oceans, waves and beaches through the powerful activist network.

The waters along the West Maui coast are currently designated Marine Class AA under Hawai'i state law, which means that the waters should be kept in as pristine condition as possible for the benefit of shellfish and other marine life, conservation of coral reefs, and compatible recreation, among other uses. The waters are also designated as a Marine Whale Sanctuary under the National Marine Sanctuaries Act. Additionally, several parts of the West Maui coast, including some of the waters directly offshore from the Lahaina injection wells, are currently on Hawai'i’s impaired waters list due to violations of water quality standards for turbidity, chlorophyll-a, nitrogen, and phosphorous.

The lawsuit is not only in defense of important water quality interests on Maui’s coast, but is also an opportunity to set good precedent for a stronger interpretation of the Clean Water Act.  The Plaintiffs will argue that the Clean Water Act protections should expand to anywhere that a hydrological connection between point source and navigable waters exists.  There are good facts for the instant case, including two compelling scientific studies that link the injection well discharges to the nearshore pollution.  Specifically, Surfrider argues that the County needs to apply for a National Pollution Discharge Elimination System ("NPDES") permit under the federal Clean Water Act, which would limit the pollution the County may discharge into the ocean.  Under the Clean Water Act, a source discharging pollutants into coastal waters is a violation unless there is a permit that sets the terms of any such discharge and imposes other monitoring and mitigation requirements.  Since the Clean Water Act strictly prohibits and penalizes discharging without a NPDES permit, the plaintiffs will ask the court to require that the County obtain a water pollution control permit to limit the discharges of pollutants.  Beyond the current suit, the County has also failed to obtain a Clean Water Act § 401 water quality certification from the State of Hawai'i. 

Surfrider Foundation and partnering groups have attempted to resolve this issue without litigation, and over the past several years have participated in public hearings and attended numerous meetings with Maui County officials, including both former Mayor Tavares and current Mayor Arakawa and members of their administrations. But the County has failed to obtain an NPDES permit despite the community’s concerns, and despite decades of polluting marine waters in violation of the Clean Water Act. The law requires that formal notice of intent to sue be provided at least sixty days before a lawsuit is filed. If there is no attempt to address this major water quality impairment issue on behalf of the County, Surfrider Foundation and our co-plaintiffs will file suit in Hawaii District Court on August 29, 2011.

This suit is of grave importance for the protection of recreational and environmental resources enjoyed by Maui's 155,000 residents and nearly 3 million visitors each year.  The Chapter's efforts will ensure the full protections of the Federal Clean Water Act are in force for one of the most beautiful islands in the United States, if not the world.