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HomeMy WebLinkAboutCOM 0620.055 2022-2024 p/Gou�c> RA).5?2-3 GOMM.620 • • L B 1 z SIERRA CU vYJ�I HAWAI I ISLAND GROUP December 5, 2023 113 �.� CD CD Hawaii County Council c- 25 Aupuni St. Hilo HI 96720 c- ti>r,r, Re: Referral for Executive Session—Resoluion 372-23 ors Welina mai Madame Chair and Councilmembers: The Sierra Club of Hawai'i, Hawai'i Island Group (HIG) strongly opposes Resolution 372-23 as currently written. HIG opposes the hiring of Schlack Ito as special counsel to represent the County of Hawai'i in Hui Malama Honokohau v. County of Hawai'i, unless it is for the sole purpose of providing subject matter expertise to allow the county of negotiate a settlement of the litigation, and HIG opposes the payment of funds of later fiscal years for a multi-year agreement with special counsel for the county's legal defense in Hui Malama Honokohau v. County of Hawai'i,unless such funds are for the continuation of settlement negotiations,the result of which would be bringing the operation of the Kealakehe Wastewater Treatment Plant(Kealakehe WWTP)into compliance with the Clean Water Act and other relevant legal and regulatory requirements.. Please consider the following citations from reference sources related to the County of Maui v. Hawai'i Wildlife Fund et al. court case, which set the legal precedents directly applicable to the legal issues alleged in the Hui Malama Honokohau v. County of Hawai'i lawsuit. 1. "In the decision, [Justice] Breyer asserted that a permit for discharge would be required for point sources, or for non-point sources, for "the functional equivalent of a direct discharge", which had been demonstrated in the present case. Breyer wrote as an example "Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater(or over the beach),the permitting requirement clearly applies. If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply." Breyer's opinion included two major factors to be considered in evaluating whether non-point source discharge was functionally equivalent to direct discharge: the distance that the pollutant must travel from the point of discharge to the federal waterway, and the time that it would take. Other factors that can impact this included the ground material that the pollutant P O Box 1137 Hilo, HI 96721-1137 I hawaiiislandsierraclub(a?omait.com sierrComti).cNio. 10. "�+ Ref. To: 21(411 11.41 Ref. note �FC - 6 202 traveled through, how the pollutant changed or interacted with other chemicals within the ground, and how much of the pollutant made it to the waterway...ln July 2021, following the Supreme Court decision,the Hawaii District Court determined that the Lahaina plant's groundwater injection of sewage was the "functional equivalent of a direct discharge" and required the plant to obtain an NPDES permit." (Wikipedia: County of Maui v. Hawai'i Wildlife Fund et al.) 2. "...but any releases into groundwater would be subject to citizen suit enforcement. Just one CWA violation can result in a civil penalty of$52,414 per day, in addition to injunctive relief and attorneys' fees awards. (Hawai'1 Wildlife (County of Maui v. Hawaii Wildlife Fund et al. US Supreme Court (Case No. 18-260), National Association of Clean Water Agencies (NACWA), Position &Amicus Brief Overview). Rather than spending hundreds of thousands of dollars, perhaps millions, of county taxpayer dollars on a court case that is lost before it begins, the HIG strongly urges the county council to instead approve funding for legal counsel to negotiate a settlement that includes the Environmental Protection Agency (EPA)and results in a solution involving water recycling and additional revenue generation. Please note that"nonfeasance" is defined as actions that fail to do something that should have been done,resulting in harm or damage. In the case of the Kealakehe WWTP, the county has knowing failed to design, construct, and maintain the Kealakehe WWTP to be in compliance with the Clean Water Act, as well as its constitutional affirmative duty to protect Kona's nearshore marine waters. (Kelly v. 1250 Oceanside Partners). In addition, -'malfeasance" is defined as actions in which something that's illegal or wrong is done intentionally. The EPA has met with the county on numerous occasions, has informed the county of its valid concerns, and has even offered funding for solutions. Yet, the county has refused funding offers and has continued to knowingly violate the Clean Water Act. In order to avoid further taxpayer exposure to millions of dollars in fines and attorney fees, HIG urges the county council to 1)require the county administration to settle the Hui Malama Honokohau v. County of Hawai•'i lawsuit, and 2) provide funding restricted for subject matter legal expertise for the sole purpose of negotiating a settlement that resolves the legal and regulatory compliance issues associated with the Kealakehe WWTP. Mahalo, f. . ,. Charles Flaherty, (.hair