Litigation Station: East Maui, Lahaina Wastewater & Red Hill

By Wayne Tanaka | Reading time: 4 minutes

East Maui Streams

This week Wednesday, December 8, marks the start of contested case hearing proceedings regarding four revocable permits that authorize Alexander & Baldwin to continue to divert and waste millions of gallons of East Maui stream water every day.

While this is a matter of great concern to the communities of East Maui and for all who understand the importance of upholding the public trust in water, Board of Land and Natural Resources’ (BLNRs’) Chairperson Suzanne Case is refusing to livestream these proceedings, and is forbidding any participants from doing the same - or even recording them on their own devices! If you want to watch the proceedings this week, your only choice is to go to the BLNR conference room (Kalanimoku Building Room 132, 1151 Punchbowl Street) in Honolulu, Oʻahu on Wednesday and Thursday at 9 a.m. this week.

The purpose of these proceedings is to take witness testimony and hear parties’ arguments regarding how much water A&B, East Maui Irrigation and Mahi Pono actually need, as well as the impact of the diversions on streams.

We'll do our best to report back via email on notable testimonies and arguments.

Lahaina Wastewater Win!

Huge news!  After a decade of litigation, the County of Maui has finally agreed that the Lahaina Wastewater Reclamation Facility should be subject to the Clean Water Act’s permitting requirements, which will help to better protect Maui’s shorelines from wastewater pollution.

In 2012, the Sierra Club of Hawaiʻi's Maui Group, the Hawai‘i Wildlife Fund, Surfrider Foundation, and West Maui Preservation Association, all represented by Earthjustice, filed suit against the county to address the dumping of millions of gallons of nutrient- and chemical-laden wastewater every day from the Lahaina Wastewater Reclamation Facility into the nearshore waters of West Maui.  Despite evidence that the facility was clearly polluting the ocean, and notwithstanding the occurrence of massive, reef-smothering algae blooms fed by the nutrient rich wastewater, the county administration refused to accept its responsibilities under the Clean Water Act.  Over the ensuing years, the county would appeal rulings from the district court and the Ninth Circuit Court of Appeals, raising significant national concern that the U.S. Supreme Court could provide a “roadmap” for potential polluters across the country to avoid the Clean Water Act's requirements, if it adopted the county’s legal arguments.

Fortunately, the U.S. Supreme Court did not buy into the county’s position, and on November 19, the county finally announced that it would accept district court judge Susan Oki Mollway’s subsequent ruling that it does indeed need to obtain a Clean Water Act permit, and comply with permitting conditions likely to require much stronger environmental protections in its disposal of wastewater.  In its announcement, the county also announced its focus on “maximizing beneficial reuse of wastewater,” which would both reduce the amount of wastewater needing to be disposed of, as well as the amount of water that would otherwise need to be extracted from the island’s aquifers and streams.

A huge mahalo and congratulations to the plaintiffs, Earthjustice attorney David Henkin and the Earthjustice legal team, and to all the members and supporters that helped make this victory possible!

Red Hill Bulk Fuel Storage Facility

Two new developments have arisen in our litigation involving the Red Hill Bulk Fuel Storage Facility.

First, after our filing of an open records lawsuit against the Department of Health, the DOH has now agreed to release certain documents associated with the months-long leak of fuel from the Red Hill facility into Pu‘uloa (Pearl Harbor).  Sierra Club attorneys are now reviewing the nearly 250 MB of documents, and are working with DOH to ensure they are made available and accessible for public viewing.

Notably, upon initial review, there are inconsistencies in redactions between the documents the Sierra Club received from this open records request, and the same documents that had been previously released by the Navy – raising questions as to how information may be deemed too sensitive for “national security” purposes to be released.  In addition, there is a questionable lack of internal DOH emails as well as relevant emails between the Sierra Club and DOH officials, which should have been encompassed by the Sierra Club’s open records request.  The Sierra Club has raised these concerns with the DOH, and is awaiting their reply.

Second, the DOH environmental health administration has now submitted a motion to reopen the hearing contested case hearing over the issuance of an underground storage tank permit for the Red Hill facility.  The motion to reopen includes Navy whistleblower allegations that Navy officials had wrongfully withheld critical information during the prior contested case proceedings, including information regarding the existence of pipelines connected to the facility, and historical corrosion issues “including holes in tanks, that are being hidden from the regulators.”  The Sierra Club submitted its own motion in support of this request, but urged that any reopening be subject to strict deadlines, given the urgent need to address the inherent danger of the Red Hill facility.   A ruling on the reopening of the contested case hearing remains pending.