MauiTime, September 11, 2019
By Axel Beers
After two days of high drama which drew nearly 100 testifiers and resulted in marathon meetings of Maui County Council’s Government, Ethics and Transparency Committee, councilmembers voted 5-3 (one excused) to settle a lawsuit brought against the county by Hawaii Wildlife Fund, Sierra Club Maui, Surfrider Foundation, and West Maui Preservation Association. The case, which has drawn national attention for its implications on interpretations of the Clean Water Act, is scheduled to be heard before the US Supreme Court on Nov. 6. However, if the settlement resolution passes the full council and is authorized, the case will be pulled from the high court’s docket and the previous ruling of the Ninth Circuit Court will stand.
While the case stems from divergent interpretations of what constitutes a “point source” of wastewater discharge and thus what permits are required for the Lahaina injection wells, testimony and arguments revolved around the consequences of allowing the Ninth Circuit Court decision to stand and speculation of what could happen if the case is heard by the Supreme Court. An unprecedented ninety-nine testifiers showed up in the County Council Chambers to weigh in on Tuesday, Sep. 3, driving the meeting into the eleventh hour. As the day dragged on and testifiers in the queue filtered out, only 64 of 99 made it to the podium.
A strong majority urged the council to vote to settle, citing damage to the West Maui reef that peer-reviewed studies have linked to the wastewater which continues to seep into the ocean waters from the Lahaina Wastewater Reclamation Facility injection wells via the groundwater. Individuals supporting settlement also voiced concern that allowing the Supreme Court – which holds two of President Trump’s nominees – to rule on the case would serve to further the administration’s agenda to dismantle environmental protections, resulting in degradation nationwide. Some added that a settlement would give the county the extra push it needs to take wastewater issues seriously.
Approximately 10 testifiers supported the Supreme Court appeal, the position of Mayor Michael Victorino’s administration. They cited concerns regarding the costs of implementing alternative wastewater management systems, potential liability for owners of cesspools and septic tanks, and the burden of adding further regulations and permitting processes to future construction projects.
Water from LWRF injection wells seeps into the ocean via groundwater
GET Committee Chair Mike Molina kept his cards close to the vest that night, stating that he was still contemplating his vote. After the last testimony was entered into the record and the meeting was recessed, Molina told me that the testimony was “Compelling… for myself, it’s going to be a game time decision. I could stick with the decision that I made in the first round or I could change my mind. I’m still processing all the information.”
Earlier in the year, Molina voted not to settle the lawsuit, and the committee deadlocked at a 4-4 vote. “I don’t want to leave any stone unturned,” Molina said regarding his decision to bring the settlement resolution back into his committee. “Let’s bring it out, no matter how tough it is. That’s what we got elected for. Let’s finally bring some closure to this.”
One thing he was not guarded about, however, was his pleasure with the public turnout, especially among youth. “I was really thrilled to see the younger people come out,” he said. “It’s an issue that’s galvanized our community to participate, and I like that.”
By the end of the committee’s second meeting on Friday, Sep. 6, councilmembers were ready for a vote. Councilmembers Mike Molina, Kelly King, Tamara Paltin, Keani Rawlins-Fernandez, and Shane Sinenci voted to settle the lawsuit and withdraw it from the Supreme Court. Councilmembers Tasha Kama, Alice Lee, and Yuki Lei Sugimura rejected the settlement resolution and favored taking the case to the Supreme Court. Councilmember Riki Hokama was excused.
“We commend the council majority for taking an important step toward the future and opening the way for the county to work collaboratively at home to resolve the problems of the Lahaina plant,” said HWF executive director Hannah Bernard in comments to Earthjustice. West Maui Rep. Angus McKelvey also praised the decision, releasing a statement saying “This is a strong step forward for the restoration and protection of our marine environment and I hope the public, along with the supporting members of the council will remain vigilant going forward.”
Mayor Victorino was not as celebratory. “The effects of the Ninth Circuit Court’s expansion of the Clean Water Act on our already tight housing market could be severe,” he said in a statement. “For county and private projects, we are now looking at costly and possibly unattainable permits, adding expense and uncertainty. Our recycled water program, which uses this very same water on land, could be in jeopardy. People already worried about the cost of cesspool conversion at some future date, may now have to do that much sooner, and septic systems in certain areas will likely not be options because they violate the Clean Water Act under the Ninth Circuit’s decision.”
The settlement resolution will now head to the full County Council for a vote.
Photo 1 by Axel Beers.