On September 25, the County of Hawai\u02bbi 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 \u2013 about two-thirds of a mile \u2013 into Honok\u014dhau Harbor, the busiest harbor for commercial ocean recreation vessels and charter fishing boats on the island\u2019s western coast.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
On May 24, Earthjustice, representing Hui M\u0101lama Honok\u014dhau, sent to the county a 60-day notice of intent to sue over violations of the federal Clean Water Act. \u201cWe hope that this letter will convince the county immediately to investigate and correct these ongoing violations,\u201d the letter stated. \u201cUntil the county obtains an NPDES permit, discharging treated sewage to the ocean via groundwater subjects the county to civil penalties under\u201d the Clean Water Act.<\/p>\n\n\n\n
\u201cWhile the Hui need not prove adverse impacts to establish the county\u2019s CWA liability here, the county\u2019s failure to obtain and comply with an NPDES permit for its discharges has had \u2013 and continues to have \u2013 significant, detrimental effects on water quality and health of the nearshore ocean waters and ecosystems in and adjacent to Honok\u014dhau Harbor and on public health,\u201d the notice of intent stated. \u201cThe county should take prompt action to prevent additional harm.\u201d<\/p>\n\n\n\n
With no action by the county to address the problems, Earthjustice filed its lawsuit in late September.<\/p>\n\n\n\n
The County Response<\/strong><\/p>\n\n\n\n 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.<\/p>\n\n\n\n Before the council entered into executive session to hear details of the county\u2019s position from Strance, several members of the public weighed in on the resolution. All opposed Strance\u2019s request, arguing instead that the county should fix the problems identified in the lawsuit.<\/p>\n\n\n\n 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 Honok\u014dhau area. Using public funds to hire outside counsel \u201cis a disgusting way to spend taxpayer dollars instead of doing the kako thing and fix our wastewater treatment system.\u201d <\/p>\n\n\n\n Before the council went into executive session to hear from Corporation Counsel Elizabeth Strance details on her office\u2019s position, Strance made general statements about the case.<\/p>\n\n\n\n \u201cWe are seeing this case because of the Maui decision,\u201d she said, referring to the litigation over the Lahaina sewage treatment plant, \u201cand the gray areas left by that decision.\u201d<\/p>\n\n\n\n Her office, she said, had \u201cengaged in good-faith negotiations with the Earthjustice legal team to avoid this lawsuit to no avail.\u201d After the lawsuit was filed, she said, \u201cwe made the decision that we felt we needed additional resources and expertise.\u201d<\/p>\n\n\n\n Strance said the county had to defend itself against the lawsuit, given that Earthjustice had threatened to seek penalties for each day of violation. \u201cGiven 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,\u201d she said.<\/p>\n\n\n\n She went on to cast shade on Earthjustice:<\/p>\n\n\n\n \u201cEarthjustice \u2026 possesses national resources and specializes in environmental impact litigation. Its intention appears to be to make this a high-profile case. For example, we\u2019ve 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.\u201d<\/p>\n\n\n\n In any case, she said, \u201cthe 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\u2019t 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.\u201d<\/p>\n\n\n\n She continued: \u201cThere 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.\u201d<\/p>\n\n\n\n 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\u2019s in-house expertise in matters of environmental law.<\/p>\n\n\n\n \u201cI don\u2019t support the resolution. I would like to see us go out and hire more people on your litigation team,\u201d she said, addressing Strance. \u201cThis particular lawsuit is on the cusp of other things going on around the island. When it comes to stormwater runoff, what\u2019s going out into the ocean, a lot of people are very upset. It\u2019s an area of law that\u2019s just going to keep moving. It\u2019s not going to retreat.\u201d<\/p>\n\n\n\n Council member Holeka Goro Inaba, representing most of the area served by the Kealakehe plant, also opposed the resolution. \u201cI have not seen updated or clear plans\u201d to address problems at the Kealakehe plant, he said. Proposals to upgrade treatment to R-1 levels he described as \u201coutrageous in terms of cost,\u201d 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. \u201cI want to see options,\u201d he said, stating he would vote no \u201cwith reservations.\u201d In addition, he voiced his concerns that the $200,000 initial expenditure might not be sufficient to last the duration of litigation. \u201cHow many more resolutions is it going to take for us to address this issue?\u201d<\/p>\n\n\n\n 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 Hawai\u02bbi<\/em>, which mentioned this in relation to a time extension for the proposed Kona Three development in Holualoa, Villegas noted that the lawsuit could obstruct \u201cfuture development, large zoning changes, because the new requirements are to connect to the wastewater treatment plant.\u201d<\/p>\n\n\n\n \u201cIs that in fact the case?\u201d Villegas asked Strance. \u201cAny future developments that need to connect to this wastewater treatment facility, can they connect to a wastewater facility that is currently in litigation?\u201d<\/p>\n\n\n\n Strance acknowledged that could be the case. \u201cOne of the requested reliefs is for injunctive relief. \u2026 I don\u2019t want to say yes and I don\u2019t 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\u2019t been taken care of to their satisfaction\u2026 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\u2019s not something in place right now but I think that\u2019s part of the impetus for the case. That would be something that would be worked out in the relief if they\u2019re successful.\u201d<\/p>\n\n\n\n On a 7-2 vote, the resolution passed.<\/p>\n\n\n\n Earthjustice Responds<\/strong><\/p>\n\n\n\n On December 19, David Henkin, lead counsel for Hui M\u0101lama Honok\u014dhau, addressed several of the claims and comments made by Strance in a letter to County Council Chair Heather Kimball and other council members.<\/p>\n\n\n\n After watching the council\u2019s December 6 deliberations, Henkin wrote, \u201cI 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.\u201d<\/p>\n\n\n\n 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, \u201cwe expressly invited the county to engage in talks to seek a resolution of this matter without the need for litigation.\u201d<\/p>\n\n\n\n \u201cWe did not hear back from Corporation Counsel until June 20, 2023\u2026 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.<\/p>\n\n\n\n \u201cIf we were eager to litigate rather than find solutions, we would have filed suit on the 61st<\/sup> day after sending our notice letter\u2026 Instead, we continued settlement discussions, despite Corporation Counsel\u2019s 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\u2019s 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.\u201d<\/p>\n\n\n\n The council\u2019s December 6 discussions, Henkin added, \u201csuggest 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.\u201d<\/p>\n\n\n\n Henkin concluded by asking council members to request a copy of the offer from the corporation counsel. \u201cWe stand by that offer,\u201d he said, \u201cwhich 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.\u201d<\/p>\n\n\n\n Environment Hawai\u02bbi <\/em>asked Henkin about several of the other claims that Strance made.<\/p>\n\n\n\n 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\u2019s 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.\u201d<\/p>\n\n\n\n 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. \u201cIn the wake of the Lahaina fire,\u201d he said, \u201cwe 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.\u201d<\/p>\n\n\n\n – Patricia Tummons<\/strong><\/p>\n\n\n\n For Further Reading<\/strong><\/p>\n\n\n\n Environment Hawai\u02bbi <\/em>has published several articles relating to aspects of the Kealakehe sewage treatment plant over the last three decades. Here is a selection:<\/p>\n\n\n\n \u201cLots of Pork, Little Sewage at the New Hilo Treatment Works,\u201d November 1990;<\/p>\n\n\n\n \u201cAt Kealakehe, Kona, a Deathwatch as Native Species Slide into Extinction,\u201d February 2006;<\/p>\n\n\n\n \u201cHawai\u02bbi County Faces Lawsuit Threat over Kealakehe Sewage Treatment Plant,\u201d July 2014;<\/p>\n\n\n\n \u201cKealakehe Pilikia,\u201d in New & Noteworthy column, September 2014;<\/p>\n\n\n\n \u201cLUC Grills Kona Developer on Compliance with Environmental, Cultural Regulations,\u201d May 2023;<\/p>\n\n\n\n \u201cMyriad Concerns Stall Progress on Planned Holualoa Development,\u201d November 2023.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":15589,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[520],"tags":[7],"class_list":["post-15588","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-january-2024","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15588","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15588"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/15588\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/15589"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15588"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15588"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15588"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}