(CN) - A band of enviros claim a wastewater facility in Lahaina has been seeping sewage into the ocean without a National Pollutant Discharge Elimination System Permit. However, the sewage plant may not require that particular permit for its type of operation, according to Maui County and a representative with the Environmental Protection Agency.
The Hawaii Wildlife Fund, Sierra Club - Maui Group, Surfrider Foundation and West Maui Preservation Association sued Maui County, saying the Lahaina Wastewater Reclamation Facility (LWRF) continues to violate the Clean Water Act by injecting sewage into its wells that then flows into the nearby ocean via groundwater.
The groups say the resulting "freshwater seeps" have caused algae blooms to grow that suffocate coral and prevents its regeneration. They also claim that the seepage affects preservation efforts, the public's enjoyment of Kahekili Beach and the Hawaiian Islands Humpback Whale National Marine Sanctuary.
The facility, which injects three to five million gallons of wastewater into the wells each day, has been discharging its wastewater in this manner since before 2006, according to the enviros' complaint, filed in federal court in Hawaii.
The enviros claim that a National Pollutant Discharge Elimination System Permit (NPDES) is required for this type of facility, but the LWRF has never had one.
"Despite knowing for decades that the LWRF's discharge to nearshore West Maui waters and mounting scientific evidence of the harm those discharges cause to fragile marine ecosystems, the County has never applied for, much less obtained and complied with, an NPDES permit to control its illegal discharges," the environmentalists state.
The treatment facility began discharging through a subsurface pipe at the bottom of injection wells in 1982, according to the lawsuit. The enviros claim that the facility's wastewater, along with nitrogen, phosphorus, suspended solids, bacteria, pharmaceuticals, fragrances and industrial chemicals, "continuously flow[s] out into the ocean through the hydrologically connected groundwater."
The county wrote up an environmental assessment in 1991 in which it said that these solids are discharged "to fractures in the underlying basalt," which then flow into the ocean, according to the lawsuit.
"Neither the [Environmental Protection Agency] nor the [Hawaii Department of Health] has commenced or is diligently prosecuting a civil or criminal action in a court of the United States or a State to require the County to obtain an NPDES permit or otherwise address the violations addressed by the plaintiffs in this complaint," the groups state.
The environmentalists claim that the University of Hawaii found that wastewater-derived nitrogen in the algae samples taken over freshwater seeps near Kahekili Beach "are the highest ever reported in the world."
Dean Higuchi of the Hawaii branch of the EPA, who has been working with the county since the lawsuit was filed, said that although the EPA can't comment on the lawsuit, as it is not listed as a party, the agency will be looking into what's going on at the Lahaina plant.
However, Higuchi told Courthouse News that not every plant requires a NPDES.
"It depends upon the facility, and that's some of the issue, I guess," Higuchi said. "NPDES looks at a direct discharge to the ocean. Again, it's coming out of two different parts of the federal law. One requires an NPDES permit -- facilities that discharge directly to the ocean, i.e. the 'outfall.' And in the case of Lahaina, it is an [underground injection control] well, which is covered and regulated under the Safe Drinking Water Act through a UIC permit."
When asked if the Lahaina facility even needed the NPDES permit, Higuchi said: "At this point, what we regulate is the underground injection control wells, which are covered by the Safe Drinking Water Act. And the injection wells do have a permit under that Act. We have required the county to disinfect the wastewater that it discharges into that system with non-chlorine disinfection, and they need to accomplish that by 2013. It's probably going to be UV treatment."
Higuchi said that a tracer study and monitoring of dye near the freshwater seeps is ongoing, and is expected to wrap up at the end of the year.
"At that point we'll get a much better idea of what's going on in Lahaina as far as how the injection wastewater moves," Higuchi said. "We're really going to look at all the data from the researchers in order to make further decisions, if needed."
Kyle Ginoza, the director of the Department of Environmental Management for Maui County, seemed to agree with Higuchi on the open-endedness of a need for an NPDES permit for the Lahaina plant under the Clean Water Act. He told Courthouse News that, like everyone else, he wants to see the results of the tracer study.
"That is a question that is still under discussion with the EPA and the Department of Health. Based on what we currently know, we do not believe that we are 'directly discharging' into navigable waters of the United States, and we believe that the permit that we already have from the EPA is sufficient. However, the scientific studies that are currently underway may help provide further clarity on that question," Ginoza said.
The director also said that the EPA issued a nine-year permit for the facility in 1996, which has been extended until the studies are finished, while the DOH issues permits for the LWRF every four years.
"The county is required to inspect the injection well system weekly, and submit a report on the condition and performance of the wells every six months. DOH inspections are typically performed yearly," the director said.
In addition, Ginoza's department is moving forward with upgrades that were proposed back in 2009. The upgrades include additional UV capacity by 2013 and elevated storage, system pressurization and service laterals the following year. The director also said that the county will design a plan in 2014 for expanded distribution of LWRF water into the sizeable Ka'anapali Resort.
Higuchi said that the EPA issued an order on consent concerning upgrades to the fa