On September 25, the County of Hawaiʻi was sued in federal court over the operation of its Kealakehe sewage treatment plant. That facility disposes of treated effluent by pumping it uphill to a disposal pit, where it then percolates through the porous lava into the groundwater. From there, it flows the short distance – about two-thirds of a mile – into Honokōhau Harbor, the busiest harbor for commercial ocean recreation vessels and charter fishing boats on the island’s western coast.
Over the three decades of operating the plant, the county has not applied for a National Pollutant Discharge Elimination System (NPDES) permit, which the federal Clean Water Act requires for any discharge of pollutants into navigable waters. Over that time, several individuals and groups had objected to the practice, to no avail.
But in 2020, the U.S. Supreme Court, in a case brought by Earthjustice over the operation of the Lahaina, Maui, sewage treatment plant, held that such discharges need to be permitted if, after traveling through groundwater and entering navigable waters, they are found to be functionally equivalent to discharges made directly into the ocean. The federal district court in Honolulu, when confronted with the question of whether the Lahaina discharges met this test, determined that they did.
On May 24, Earthjustice, representing Hui Mālama Honokōhau, sent to the county a 60-day notice of intent to sue over violations of the federal Clean Water Act. “We hope that this letter will convince the county immediately to investigate and correct these ongoing violations,” the letter stated. “Until the county obtains an NPDES permit, discharging treated sewage to the ocean via groundwater subjects the county to civil penalties under” the Clean Water Act.
“While the Hui need not prove adverse impacts to establish the county’s CWA liability here, the county’s failure to obtain and comply with an NPDES permit for its discharges has had – and continues to have – significant, detrimental effects on water quality and health of the nearshore ocean waters and ecosystems in and adjacent to Honokōhau Harbor and on public health,” the notice of intent stated. “The county should take prompt action to prevent additional harm.”
With no action by the county to address the problems, Earthjustice filed its lawsuit in late September.
The County Response
On December 6, the County Council was asked by Corporation Counsel Elizabeth Strance to adopt a resolution authorizing her office to pay the Honolulu legal firm of Schack Ito up to $200,000 to defend the county in the litigation.
Before the council entered into executive session to hear details of the county’s position from Strance, several members of the public weighed in on the resolution. All opposed Strance’s request, arguing instead that the county should fix the problems identified in the lawsuit.
Among those testifying was Mike Nakachi, one of the members of the Hui and a longtime boat captain, dive instructor, and cultural practitioner in the Honokōhau area. Using public funds to hire outside counsel “is a disgusting way to spend taxpayer dollars instead of doing the kako thing and fix our wastewater treatment system.”
Before the council went into executive session to hear from Corporation Counsel Elizabeth Strance details on her office’s position, Strance made general statements about the case.
“We are seeing this case because of the Maui decision,” she said, referring to the litigation over the Lahaina sewage treatment plant, “and the gray areas left by that decision.”
Her office, she said, had “engaged in good-faith negotiations with the Earthjustice legal team to avoid this lawsuit to no avail.” After the lawsuit was filed, she said, “we made the decision that we felt we needed additional resources and expertise.”
Strance said the county had to defend itself against the lawsuit, given that Earthjustice had threatened to seek penalties for each day of violation. “Given the amount of time required to make any improvements to the Kealakehe wastewater treatment plant, this means the county could be forced to choose between $64,000-a-day fines or closing the wastewater treatment plant, or both,” she said.
She went on to cast shade on Earthjustice:
“Earthjustice … possesses national resources and specializes in environmental impact litigation. Its intention appears to be to make this a high-profile case. For example, we’ve learned of both the demand made on the county and the lawsuit through the media. This is unusual in normal litigation where rules of courtesy often prevail and courtesy copies are provided simultaneously with filing.”
In any case, she said, “the landscape of wastewater permitting is evolving. The state Department of Health has not made revisions to its NPDES permit proess since the Maui case although we understand there are efforts in progress. The EPA has made some changes to its rules and advisement but they don’t appear to apply to the Kealakehe wastewater treatment plant. Having legal expertise in the area of environmental law and specifically the Clean Water Act will help the county navigate changes should they occur during the course of the lawsuit.”
She continued: “There have been some statements made about the desire to see negotiations. The county has always been open to negotiations. We have never refused to negotiate, and the lawsuit was filed regardless.”
Following an executive session, council members discussed their views publicly. Cindy Evans opposed the resolution, stating that in her view, the money could be better spent by developing the corporation counsel’s in-house expertise in matters of environmental law.
“I don’t support the resolution. I would like to see us go out and hire more people on your litigation team,” she said, addressing Strance. “This particular lawsuit is on the cusp of other things going on around the island. When it comes to stormwater runoff, what’s going out into the ocean, a lot of people are very upset. It’s an area of law that’s just going to keep moving. It’s not going to retreat.”
Council member Holeka Goro Inaba, representing most of the area served by the Kealakehe plant, also opposed the resolution. “I have not seen updated or clear plans” to address problems at the Kealakehe plant, he said. Proposals to upgrade treatment to R-1 levels he described as “outrageous in terms of cost,” but he added he had not seen where the county administration had looked at other options, such as using R-2 treated water at construction sites to keep dust down. “I want to see options,” he said, stating he would vote no “with reservations.” In addition, he voiced his concerns that the $200,000 initial expenditure might not be sufficient to last the duration of litigation. “How many more resolutions is it going to take for us to address this issue?”
Council member Rebecca Villegas wanted to know whether the lawsuit might result in a moratorium on further connections to the sewage treatment plant, including connections needed to develop a long-stalled housing subdivision in her district. Referring to an article published in the November edition of Environment Hawaiʻi, which mentioned this in relation to a time extension for the proposed Kona Three development in Holualoa, Villegas noted that the lawsuit could obstruct “future development, large zoning changes, because the new requirements are to connect to the wastewater treatment plant.”
“Is that in fact the case?” Villegas asked Strance. “Any future developments that need to connect to this wastewater treatment facility, can they connect to a wastewater facility that is currently in litigation?”
Strance acknowledged that could be the case. “One of the requested reliefs is for injunctive relief. … I don’t want to say yes and I don’t want to say no. It depends. I think that one of the concerns raised in the case is that the plaintiffs are concerned that things haven’t been taken care of to their satisfaction… and there are plans to expand, and so a goal of the case would be not to allow expansion unless or until there are upgrades to the treatment plant. There’s not something in place right now but I think that’s part of the impetus for the case. That would be something that would be worked out in the relief if they’re successful.”
On a 7-2 vote, the resolution passed.
Earthjustice Responds
On December 19, David Henkin, lead counsel for Hui Mālama Honokōhau, addressed several of the claims and comments made by Strance in a letter to County Council Chair Heather Kimball and other council members.
After watching the council’s December 6 deliberations, Henkin wrote, “I have concerns that you and the other members of the County Council may be unaware of our efforts ro resolve this case without the need for time-consuming and expensive litigation.”
Henkin noted that Earthjustice notified the county on May 24, giving the county 60 days to respond before any federal lawsuit could be filed. In that letter, “we expressly invited the county to engage in talks to seek a resolution of this matter without the need for litigation.”
“We did not hear back from Corporation Counsel until June 20, 2023… We nonetheless welcomed the opportunity to discuss settlement and engaged in good-faith negotiations, which included sending a formal, written offer of settlement on September 6, 2023, that would have resolved this matter. Our offer of settlement focused on fixing the problems at the Kealakehe facility and ensuring protection of the marine waters into which the facility discharges, along with the health and safety of the community that uses those waters.
“If we were eager to litigate rather than find solutions, we would have filed suit on the 61st day after sending our notice letter… Instead, we continued settlement discussions, despite Corporation Counsel’s refusal to make any meaningful commitments to address the harm that operations at the Kealakehe facility inflict on the environment and the community. It was not until we received Corporation Counsel’s September 20, 2023, letter rejecting our good-faith settlement offer and offering nothing meaningful as an alternative that we concluded that we had no choice but to go to court. We filed suit on September 25, 2023, over four months after sending our notice letter.”
The council’s December 6 discussions, Henkin added, “suggest that the debate on [the resolution] was the first time that the council was made aware of this lawsuit. If that is correct, that would mean that the council had not previously seen our September 6, 2023, written settlement offer, which at the very least would have been relevant information and context for corporation counsel to share with the council. We reached out to corporation counsel over a week ago to ask if that was the case, but they have not yet responded.”
Henkin concluded by asking council members to request a copy of the offer from the corporation counsel. “We stand by that offer,” he said, “which would allow the county to bring this litigation to an early resolution and focus ists energy and resources instead on addressing the pressing problems with wastewater disposal at the Kealakehe Wastewater Treatment Plant.”
Environment Hawaiʻi asked Henkin about several of the other claims that Strance made.
As to her statement that the Department of Health was still developing rules for issuing permits of a type that would address the issues in the Lahaina case, Henkin said that it’s true the DOH had not revised its NPDES permit process following the decision in the Lahaina case. But, he said, “for decades, U.S. EPA has issued permits for discharges via groundwater, using the same regulations that apply to NPDES permits involving direct discharges into avigable waters. U.S. EPA also recently issued a draft guidance that makes clear that state regulators like DOH have existing authority to require the information needed to develop a permit for discharges via groundwater.”
Strance mentioned that the DOH had not yet issued an NPDES permit for the Lahaina plant. Henkin acknowledged this, but, he added, the DOH did put a draft permit out for public comment at the end of June. “In the wake of the Lahaina fire,” he said, “we asked DOH to put the permitting process on hold because the community clearly was not in a position to participate at that time. We are hopeful that the process will resume in the near future, once the Lahaina community is again able to engage.”
– Patricia Tummons
For Further Reading
Environment Hawaiʻi has published several articles relating to aspects of the Kealakehe sewage treatment plant over the last three decades. Here is a selection:
“Lots of Pork, Little Sewage at the New Hilo Treatment Works,” November 1990;
“At Kealakehe, Kona, a Deathwatch as Native Species Slide into Extinction,” February 2006;
“Hawaiʻi County Faces Lawsuit Threat over Kealakehe Sewage Treatment Plant,” July 2014;
“Kealakehe Pilikia,” in New & Noteworthy column, September 2014;
“LUC Grills Kona Developer on Compliance with Environmental, Cultural Regulations,” May 2023;
“Myriad Concerns Stall Progress on Planned Holualoa Development,” November 2023.
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