Hawai‘i County Council approves hiring outside counsel for defense against civil lawsuit claiming Clean Water Act violation

The Hawai‘i County Council approved hiring outside counsel to defend the County in a civil lawsuit filed by a local nonprofit that accuses the County of violating federal laws by discharging treated sewage into waters around Honokōhau Bay through groundwater.

The lawsuit, filed in U.S. District Court in September by members of Hui Mālama Honokōhau, claims the county is violating the Clean Water Act by continuously discharging treated sewage from the Kealakehe Wastewater Treatment Plant into the Pacific Ocean via groundwater without the required National Pollutant Discharge Elimination System permit.

In its response filed in U.S. District Court, the county said the effluent flow of wastewater from the treatment plant has been treated, oxidized and disinfected to the applicable state and federal standards for secondary treatment classification through the use of five aerated lagoons and further processes.

Resolution 372-23 to hire the outside law firm passed with a 7-2 vote with councilmembers Cindy Evans and Holeka Inaba voting no with reservations and councilmembers Rebecca Villegas and Sue Lee Loy voting yes with reservations.

Before the vote, the council went into a private executive session to review the county’s rights, privileges and liabilities with Corporation Counsel. They returned to open session and granted the county attorneyʻs request to hire Schlack Ito, a Limited Liability Law Company, for $200,000.

“As stated in the resolution, Corporation Counsel lacks the expertise and personnel necessary to provide the level of legal services necessary to represent the county,” Corporation Counsel Elizabeth Strance said. “This is a request being made by my office after an assessment of what it would take to defend this lawsuit, the resources we have in our office, and our current workload.”

The resolution allows the county to enter into a multi-year agreement with Schlack Ito, a firm that practices environmental, land use, climate and sustainability law.

Everyone who testified about the measure on Wednesday opposed the county hiring outside counsel for the lawsuit.

“I work in regenerative economics in farming and water,” said Sam De La Paz. “There are many solutions that can be implemented here.

“There’s no reason this money shouldn’t be strictly allocated toward more regenerative systems and something that can properly filter the water and recycle the water in a meaningful way and not pollute the harbor.”

Another testifier opposed how the resolution is currently written unless it is to use the attorney’s expertise to negotiate a settlement and bring the treatment plant into compliance with the Clean Water Act.

Another testifier stated they were in opposition to any public funds used in litigation if those public funds could go toward innovation or deliberation with the community.

Strance said the county engaged in early negotiations with the Earth Justice legal team, which is representing Hui Mālama Honokōhau, to avoid the lawsuit but was unable to reach a compromise.

The lawsuit is seeking injunctive relief. The county could be forced to close the treatment facility or pay penalties of $64,618 per day for each violation brought forth in the Hui Mālama Honokōhau suit.

The Clean Water Act prohibits the discharge of any pollutant to navigable waters from a point source without a Pollutant Discharge Elimination System permit. In the lawsuit, Hui Mālama Honokōhau alleges the Kealakehe Waste Water Treatment Plant currently discharges about 1.7 million gallons per day of treated sewage from two pipes into a natural, disposal pit located in a permeable lava field upslope from Honokōhau Harbor.

The treated sewage that the county discharges into the natural disposal pit enters the groundwater and flows into the nearshore ocean waters in and adjacent to the Honokōhau Boat Harbor, including Honokōhau Bay, the lawsuit says.

The county said the treated water flows from the facility east through pipes and then drains onto a disposal percolation basin located on the mauka side of the Queen Ka‘ahumanu Highway in Kailua-Kona. The county said the lawsuit’s figure of 1.7 million gallons per day of treated water entering Honokōhau Bay waters was not right but the county didn’t note the actual number in its response.

Council member Jenn Kagiwada, who represents Hilo and areas of South Hilo, supported the resolution saying she thinks expertise is needed to get the best results for the county.

Villegas, who represents portions of Kona and South Kona, said while she has challenges with this, she recognizes that this case is worth the best legal focus possible.

“Unfortunately, lawsuits are the way in the environmental world that sh– gets done, or cleaned up, literally,” Villegas said. “That’s how we set new precedent and that’s how we clarify things.”

Evans, who represents Kohala and portions of Waimea, didn’t support the resolution.

“I do think you have a lot of talent on our litigation team,” she said. “I think we need to hire more people.”

Inaba, who represents North Kona, was concerned about the potential of ongoing costs, asking: “How many more resolutions is it going to take to address this issue?”

Strance said if she could hire someone she would.

“I’m here because we have an immediate need,” she said, adding the case is moving forward with the discovery process where the two parties will exchange information and documents related to the case. “We’re managing as best we can but we need to get someone on board.”

Strance also noted that she can’t predict additional costs.

Council member Matt Kaneali‘i-Kleinfelder, who represents upper Puna and portions of Kea‘au, didn’t like that the resolution was pitting constituents against the county, however, it seemed like the proper way to proceed at this point.

“This is going to force us to sit down together,” he said. “I look forward to the solutions that come out of this.”

A non-jury trial in this matter is scheduled for Nov. 5, 2024, in U.S. District Court.