The document discusses the ongoing legal case regarding injection wells in Maui County, Hawaii. It provides background on the case, which found that Maui County needs an NPDES permit for its wastewater injection wells under the Clean Water Act because the discharged water reaches the Pacific Ocean. It discusses the potential costs to Maui County to comply with the ruling and upgrade its wells. There is ongoing debate around the health impacts and whether the legal technicalities should take priority over environmental protection.

1. STATE OF HAWAII
COUNTY OF MAUI
INJECTION WELLS
APPEAL TO THE UNITED STATES SUPREME COURT
PRUDENCE OF CONTINUING APPEAL
INTEGRITY OF WITHDRAWING APPEAL
DEFENDING INJECTION WELLS – RESTING ON LEGAL TECHNICALLY
RIGHTING A WRONG BY DOING THE RIGHT THING
The Maui County Council Resolution to provide the Council authority to
withdraw the appeal did not pass the Council (6 votes needed, but only had 5
yes votes) at the April 23, 2019 meeting, so it has to go to Councilmember Mike
Molina, Chairman of the Maui County Council Governance, Ethics, and
Transparency Committee to be placed on the agenda for vote by the full
Council.
NATIONAL ASSOCIATION OF COUNTIES (NACo)
WASTEWATER INJECTION WELLS CAN BE A REGULATED POLLUTION SOURCE, REQUIRE DISCHARGE PERMITS
By Julie Ufner, Austin Igleheart. NACo. Feb. 16, 2018, accessed April 27, 2019
https://www.naco.org/articles/court-rules-wastewater-injection-wells-require-federal-permit
The U.S. Court of Appeals for the 9th Circuit has upheld a lower court's
decision in Hawaii Wildlife Fund v. County of Maui, fnding wastewater
injection wells can be a regulated pollution source under the Clean Water Act
(CWA). By ruling that underground wells are “point sources” for pollution,
thereby requiring a permit for discharge, the 9th Circuit Court’s decision, Feb.
1, may have a signifcant impact on both public and industrial underground
injection wells, as well as municipally-owned wastewater and stormwater
management facilities, especially those using water storage systems.
To comply with the ruling, Maui County estimates the county will be
responsible for $2.5 million in upgrades, plus additional civil penalties.
Technically the ruling in this case only applies in the 9th Circuit (Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and
Washington). But other federal circuit courts of appeals, which have yet to rule
on whether an indirect discharge from a point source to navigable waters
requires a federal permit, may fnd the 9th Circuit's opinion persuasive.

2. This may be all the more likely because it agrees with similar rulings from the
2nd and 5th Circuits.
The case in question involves Maui County, Hawaii's practice of injecting
millions of gallons of treated sewage wastewater into four underground wells.
The county has been using this process since the mid-1970s and previously had
not been required to obtain a CWA permit.
However, environmental groups challenged this approach, arguing the county
should be required to obtain a CWA National Pollution Discharge Elimination
System (NPDES) permit since the discharge, through groundwater, ultimately
runs into the Pacifc Ocean. Groundwater has historically not been regulated by
the CWA, leaving the responsibility to the states.
Maui County argued the discharges were not regulated because they were not
released directly into the ocean. However, the environmental groups performed
a dye test indicating that, even though the wastewater was injected into
groundwater, the injections eventually reached the ocean after nine months.
The Court of Appeals decision upheld a 2015 decision by the U.S. District
Court for the District of Hawaii, ruling the county does in fact need to obtain an
NPDES permit. In its decision, largely based on the “conduit theory,” the court
stated that because the discharge has the potential to reach the Pacifc Ocean,
it is the “functional equivalent” of a direct discharge into a navigable water
regulated under the CWA.
NACo fled an amicus brief in this case in favor of Maui County.
{Emphasis Supplied]
___________________
IN THE DRIVER'S SEAT: THE CHANGING ROLE OF THE GENERAL COUNSEL1
By Elaine McArdle. Harvard Law Today. July 1, 2012, accessed April 27, 2019
https://today.law.harvard.edu/feature/in-the-drivers-seat-the-changing-role-of-the-general-counsel/
1 In the case of Maui County, the Corporation Counsel is the equivalent to private sector General
Counsel. During the pendency of this litigation Patrick Wong, Esq. was Corporation Counsel.

3. GC have assumed the critical role of ethical watchdog, tasked with ensuring
corporate compliance with U.S. law, not to mention understanding the political
and cultural landscape of each jurisdiction in which the company operates.
And all of this unfolds on a 24/7 timetable in time zones across the globe.
For a great GC, The frst question is, “What is legal?” The last question is,
“What is right?”
___________________
SHOULD WHAT'S RIGHT BE QUANTIFIABLE SOLELY IN TERMS OF DOLLARS ($)
The county's representation by Patrick Wong and his staf during the past four
years has saved taxpayers millions of dollars by zealous advocacy and astute
negotiation.
Some testifers stated Wong's actions have already cost the county “$100
million” in a lawsuit contending the county's use of wastewater injection wells
in Lahaina violates the Clean Water Act. That statement is not true.
Along with expert special counsel, Wong is defending the county in Hawaii
Wildlife Fund vs. the County of Maui. To date, no penalties have been
assessed, and no money has changed hands between the parties.
While the county is threatened with serious penalties in the case, Wong's legal
team is seeking a solution that's fair to county taxpayers and consistent with the
law.
Source: Openness, efciency council goals. By Maui County Council Chairman Mike White
February 23, 2015, accessed April 27, 2017 http://mauicounty.us/council-meeting/openness-efciency-council-
goals/
PATRICK WONG, CORPORATION COUNSEL ON INJECTION WELLS
EPA Weighs in on Lahaina Injection Wells in West Maui
By Wendy Osher. MauiNow. June 8, 2016, accessed April 27, 2019
https://mauinow.com/2016/06/08/epa-weighs-in-on-lahaina-injection-wells-in-west-maui/
The fact of the matter is that the injection wells were permitted by both the
state Department of Health and the EPA.

4. In fact the EPA states on their own website that injection wells have proven to
be a 'safe and inexpensive option' for many fuids including wastewater. The
only question is whether an injection well causes a 'public water system to
violate drinking water standards or otherwise adversely afect public health.
The federal court's ruling only stated that the Lahaina injection wells treated
wastewater did reach the ocean, not that it was afecting public health. We
hope that the 9th Circuit makes that distinction as well. ~ Patrick Wong, Esq.
___________________
AMICUS CURIAE BRIEF FOR THE UNITED STATES IN SUPPORT OF PLAINTIFFS-APPELLEES
Hawaii Wildlife Fund; Sierra Club-Maui Group; Surfrider Foundation; West Maui Preservation Association
https://www.eenews.net/assets/2019/04/16/document_gw_07.pdf
In March 2010, EPA responded to the County's request for a UIC [Underground
Injection Contro] permit renewal under the SDWA [Safe Drinking Water Act]
“by informing the County that recent studies 'strongly suggest that efuent from
the facility' injection wells is discharging into the near shore coastal zone of the
Pacifc Ocean.” As a result, EPA required the County to apply for a CWA [Clean
Water Act] Section 401 water-quality certifcation for its injection facilities as a
prerequisite to EPA's issuance of a new UIC permit. The County's assertion that
this letter did not put it on notice of potential CWA liability because the
certifcation was related to its UIC permit rather than any obligations under the
NPDES [National Pollutant Discharge Elimination System] program is
unavailing. A UIC permit does not preclude the need for a NPDES permit
where required, and the March 2010 communication reiterated EPA's position
that the discharges might be covered by the CWA, depending on the results of
the ordered sampling, monitoring, and reporting.
The County was on fair notice. In any event, fair notice is only one of many
factors informing a civil-penalty amount, see 33 U.S.C. § 1319(d), and thus the
County's argument that the penalty should be set aside for lack of fair notice
alone is fawed.
___________________
FUTURE GENERATIONS WILL HAVE NO FUTURE
IF THE PRESENT GENERATION CONTINUES TO LIVE IN THE PAST
~ Mark Amend