History of West Maui’s Injection Wells
By Lance D. Collins, West Maui Preservation Association
When the Clean Water Act was passed in 1972, Maui was disposing of raw sewage with shallow, nearshore ocean outfalls. Deep injection wells, together with recycling treated water for irrigation of agricultural fields and golf courses, was proposed as the solution. After numerous delays that resulted in threats by the EPA and an FBI investigation, West Maui's sewage was being minimally treated and injected into the ground at Honokōwai.
Until the ascent of sugar operations in West Maui, the area, known as Hāʻenanui, was an abundant and well-known fishery awarded with the adjacent land at the Mahele. Today, much of the Haʻenanui fishery is now part of the Kahekili Fishery Management Area administered by the Department of Land and Natural Resources.
Diminishing Resources + Studies Initiated
Algal blooms at Kahekili. PC: Jennifer Smith, Earthjustice
Concerns were raised in the 1970s and 80s about potential environmental damage that could be caused by the use of injection wells. In Kahului, individuals raised concerns about threats to endangered species habitat at Kanahā. However, by 1990, the state Department of Health had taken a dim view of injection wells as a primary method to dispose of sewage.
At the same time, massive algae blooms began to appear along the shorelines of West Maui which had a major impact on every ocean user—from subsistence fisherfolk to commercial ocean tour companies. The County funded a small study by Bishop Museum to study the problem.
In 1992, the Honokōwai plant spilled nearly 2 million gallons of raw sewage into the ocean. The following year, Hawaiʻi's Thousand Friends and the Surfrider Foundation, represented by the Sierra Club Legal Defense Fund, now known as Earthjustice, notified the County of Maui that allowing spills and bypasses and continuing poor operations and maintenance that allowed for such spills violated the Clean Water Act without a National Discharge Pollution Elimination System permit.
While the Bishop Museum study came back inconclusive, an EPA funded study pointed to the injection wells as a prime source of nutrients causing algae blooms. Dr. Bruce Anderson, then the Department of Health Deputy Director, denied injection wells caused algae blooms but agreed that limiting injection would reduce the blooms.
Nevertheless, the EPA lent Dr. Wendy Wiltse to the West Maui Watershed Partnership to assist in water quality issues in West Maui. The EPA also conducted a follow up study with fluorescent dye that came back inclusive, however, the EPA only tested the waters for the dye for a few weeks. After strong community complaints, further brief testing to detect the dye was performed and again no detection. Anderson told the press that the results showed an absence of a connection.
Maui County Sneaks Around
In 1996, the County settled allegations of sewage spills by agreeing to limit the amount of sewage injected at Honokōwai. In exchange, the County got the EPA to drop monitoring well requirements for the injection wells – over Earthjustice's strong objections.
The UH Geology department conducted a study that confirmed injection well sewage and agricultural run off were the major contributors to land-based nutrients in the nearshore waters of West Maui. Despite the accumulating scientific evidence, the County was able to find other scientists who denied any connection or strongly re-interpreted unfavorable data to signify inconclusive results.
In 1999 and 2001, the County entered into consent decrees with the EPA to better treat sewage to meet slightly higher water quality standards, to do some Clean Water Act testing. Pioneer Mill had closed and sustained community pressure on the issue waned as it faced a surge in hotel development.
Conclusive Studies Abound
Degraded reefs coral reefs at Kahekili Beach Park in West Maui.
Peter Swarzenski, USGS
But then in 2002, UH marine biologist Jennifer Smith reported preliminary findings at a West Maui community meeting showing a clear link between the algae blooms and fresh water with high nitrogen concentrations – coming from sewage and agricultural run off. This finding re-energized the West Maui community and led to other researchers obtaining grants to investigate the source of the nitrogen and the cause of algae blooms.
In 2004, the West Maui Preservation Association began biannual water quality testing at Honokowai and added additional shoreline testing. The West Maui Preservation Association asked the Department of Health to include data in two of their biennial Clean Water Act reports in 2006 and 2008.
In 2007, UH researchers discovered that the ratio of nitrogen isotopes in the Honokōwai waters were consistent with significantly elevated levels of nitrogen from human waste. The USGS published a study modeling precisely where the millions of gallons of partially treated sewage daily enters and diffuses along the shoreline. It was also becoming very clear that the long abundant reefs of Haʻenanui were in serious decline.
Don't Inject, Redirect
Don’t Inject, Redirect Coalition
PC: Hawaiʻi Wildlife Fund
A broad coalition of community groups including the Sierra Club Maui Group, Maui Tomorrow Foundation and Hawai'i Wildlife Fund, among others, formed the Don't Inject Redirect Coalition to try to work with the County to find a solution to the wastewater.
In 2009 and 2010, the EPA held two highly attended community meetings on the facility's Safe Drinking Water Act permits, called underground injection control (UIC) permits.
The West Maui Preservation Association also filed a petition for a contested case with the Department of Health over the UIC permits and the injection wells. After nearly a year of procedural ranging, the result was inconclusive and not immediately appealable. The Department of Health took the position that they had never regulated injection wells with National Pollutant Discharge Elimination System (NPDES) permits. They didn't have rules or the staff resources to write such permits.
A UIC permit regulates pollution that affects drinking water while an NPDES permit regulates pollution that affects marine life.
Tensions Mount + Suits are Filed
In 2010, the County administration changed and the attitude towards the Don't Inject Reject Coalition changed from lukewarm interest to hostile and constructive discussions broke down.
By 2011, it was clear that the injections were significantly affecting the chemical, physical and biological integrity of the nearshore waters. Earthjustice notified the County that the community groups intended to sue for Clean Water Act violations if the problem were not addressed. After additional negotiations, Earthjustice filed suit in 2012. After the suit was filed, the County proceeded to file a mostly blank NPDES permit application.
The County argued that the groups could not sue but instead had to seek relief from the Department of Health or the EPA first. The County also argued that it lacked “fair notice” that the Clean Water Act applied to the injection wells. These arguments were rejected by U.S. District Court Judge Susan Oki Mollway, who ruled that the ocean pollution was “fairly traceable” to the injection wells and the wells were the functional equivalent of a direct discharge of pollution to the ocean. Without a permit, such discharges were a violation of the Clean Water Act.
The Court also ruled that a separate violation of the Clean Water Act occurred each day from each well that pollution was being released from.
The County appealed and the Ninth Circuit affirmed Judge Mollway, holding that the pollution entering the ocean was fairly traceable to the injection wells and that the injection was the functional equivalent of a direct discharge.
Victory At Last
Plaintiffs at the U.S. Supreme Court
PC: Melissa Lyttle, Earthjustice
The County again appealed to the U.S. Supreme Court who ruled 6-3 in April that the functional equivalent of a direct discharge of pollution into the ocean is regulated by the Clean Water Act, provided a multi-factor test of what constitutions a “functional equivalent” and sent the case back to the Ninth Circuit for further proceedings.
As originally designed, 25% of the wastewater facility's treated wastewater is reused for irrigation. The County has begun to fund capital improvements that will further extend the distribution lines. However, now that there is no dispute that the wells are polluting the nearshore waters of Honokōwai and that a Clean Water Act permit is required, the County has no further reason to delay redirecting the water for beneficial uses on land. Even the Commission on Water Resource Management has proposed using recycled water to lessen and avoid the need to divert waters from Honokohau Valley allowing valley kalo farms to thrive and in-stream biota revitalized.
To hear more from Lance and learn more about this long-living case, its groundbreaking court ruling and what this means for Maui’s waters and beyond, check out this victory discussion the Sierra Club Maui Group and allies recently hosted.
Lance D. Collins is an private attorney in Maui in the areas of good government, environment and Hawaiian rights. He is the co-editor of Tourism Impacts West Maui and Social Change in West Maui (distributed by UH Press) and the compiler and indexer of the 17 volume Proceedings of the Charter Commissions of the County of Maui 1964-2012.