Plaintiffs’ attorney skeptical over move by administration
The Maui News, August 30, 2019
Mayor Michael Victorino has sent a Maui County Council committee a new resolution to authorize a revised settlement in the long-standing Lahaina injection well case that pits four environmental groups against the county.
The case is set to be heard before the U.S. Supreme Court on Nov. 6, Victorino said in a statement late Thursday afternoon. The case reached the high court after circuit courts around the country were split over their ruling on the reach of the Clean Water Act. Maui County had lost in lower courts over the matter.
On Tuesday, Victorino sent a letter, accompanied by the resolution, to Mike Molina, the chairman of the council’s Governance, Ethics and Transparency Committee, asking that the resolution be heard at the committee meeting scheduled for 9 a.m. Tuesday in Council Chambers. The letter said that the proposed revised settlement terms will be presented in executive session.
The resolution transmitted to the council does not outline specific terms of the proposed revised settlement.
But Victorino said in the email that his “duty is to the people of Maui County” and his proposal offers the plaintiffs “a way to undo the harm of the lower court’s costly and unworkable decisions.”
He said without lower courts abandoning its orders, the county cannot abandon its case at the Supreme Court, which he said would provide “clarity.” County officials have said that they are committed to recycling 100 percent of wastewater and not use injection wells, but that it cannot be done immediately and will be costly. Relying on previous court decisions could impose impossible regulatory burdens on the public as well, the county said.
Some council members, environmental groups and community members fear that a judgment by the Supreme Court in favor of the county could decimate the Clean Water Act and open the door to polluters and big industries. They want the county to pull its case from the high court.
Victorino compared a withdrawal to being in a baseball game at the bottom of the 9th inning, down one run, and telling the batter to put down the bat and throw the game.
“This is not a responsible choice for Maui County or its property owners and residents,” he said.
He added that his proposal “invites the County Council to get on board with my ongoing commitment to maximize water reuse in West Maui, which is what the Lahaina Reclamation Facility was designed to do and which continues to have the support of our state regulators.”
Isaac Moriwake, an attorney from Earthjustice representing the plaintiffs, was leery of the resolution and its timing.
“Nope, we haven’t received anything, or even word of it,” Moriwake said in a email Thursday.
He said Victorino “pulled a similar stunt” in the May GET committee meetings where a “so-called settlement offer” was brought and discussed in executive session for almost the entire meeting.
Eventually items in the meeting were deferred as members deadlocked on votes.
Moriwake learned that it was represented to the committee that the mayor was in discussions with plaintiffs. But plaintiffs only received something from the mayor two weeks after that May meeting after repeatedly inquiring about it, Moriwake said.
The last time Moriwake spoke to Victorino was July 15.
“I have suspicions on what the mayor may propose in a subsequent offer, and that it will also be equally nongenuine as before,” he said.
The new communication comes as the committee was poised Tuesday to again take up a resolution by Council Chairwoman Kelly King that was deferred at the May meeting.
The resolution would have “all forthcoming settlement offers” in the case be transmitted to the council for approval or disapproval.
Efforts seeking comment from Molina and King on Thursday were unsuccessful.
In 2012, four environmental groups — Hawaii Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club — sued the county over its use of injection wells at the Lahaina Wastewater Reclamation Facility, saying the effluent was reaching the ocean and impacting coral reefs.
The county had argued that the discharge of treated wastewater from injection wells did not require permits under the Clean Water Act because the pollutants did not flow directly into the ocean but rather flowed indirectly through groundwater.
In 2014, the U.S. District Court in Hawaii ruled that the county’s use of injection wells was a violation of the federal Clean Water Act.
The county appealed to the 9th U.S. Circuit Court of Appeals and lost in February 2018. The court denied the county’s request to reconsider the ruling in March 2018. However, earlier this year, the U.S. Supreme Court agreed to hear the case after circuit courts around the country were split over their ruling on the reach of the Clean Water Act.
Those on both sides of the case have been increasing public outreach and are making statements advocating their side of the case in preparation for Tuesday’s meeting.
On Wednesday, the four community groups suing the county brought forward petitions to King consisting of 15,962 signatures from people asking the county to withdraw the case from the Supreme Court. The petitioners are from all across the country, with 448 from Maui County.
A news release from King’s office said the council has not taken an official position on the case and continues to welcome testimony from the public.
But King also took issue with Victorino’s administration saying in a news release that West Maui ocean water quality has improved since 2009, as ongoing water tests prove otherwise.
King’s office said that the administrative body of the county does not have the authority to speak on behalf of the legislative body, as both are equal branches of government.
On Thursday, Victorino’s administration sent out another news release, citing information from the U.S. Environmental Protection Agency affirming the county’s case.
Department of Environmental Management Director Eric Nakagawa said that the EPA’s comments affirms the county’s position “that the Clean Water Act permit is not an appropriate regulatory tool for non-source point discharges, such as those from Lahaina injection wells.”
He said that the 9th Circuit decision against the county expands the act and could include commonplace discharges such as backyard septic systems and could subject those with cesspools, septic systems and other wastewater disposal systems to fines or liability.
Anna Wildeman, principal deputy assistant administrator in the EPA’s Office of Water, told Deputy Corporation Counsel Richelle Thomson in an email that if the Supreme Court agrees with the lower courts and against the county, it could subject National Pollutant Discharge Elimination System permits for “commonplace and ubiquitous activities” such as homeowner backyard septic systems.
She said the EPA has concluded that the Clean Water Act “is best read as excluding all releases of pollutants from a point source to groundwater from NPDES coverage, regardless of a hydrologic connection between the groundwater and jurisdictional surface water.”
* Melissa Tanji can be reached at firstname.lastname@example.org.