Maui County Council votes 5-4 to settle wastewater litigation

Honolulu Star Advertiser, September 21, 2019

By Andrew Gomes 

The Maui County Council decided Friday to settle an eight-year legal battle over treated wastewater affecting marine life, but that might not end what one participant has called the “clean-water case of the century.”

In a 5-4 vote following about four hours of public testimony and deliberation, the Council passed a resolution to settle the case ahead of a scheduled Nov. 6 U.S. Supreme Court hearing.

However, an attorney representing the county told the Council that Maui Mayor Michael Victorino, who has opposed the settlement, would have to agree to the settlement withdrawing the appeal to the high court.

Council member Mike Molina was stunned by the claim, which he said wasn’t mentioned at Council hearings on the settlement in May and earlier this month.

“Well, this is a bombshell,” he said, questioning whether the legal opinion was a delay tactic. “I’m aghast.”

Edward Kushi, first deputy corporation counsel, said the Council has sole authority over a county legal settlement if it involves only money, but that withdrawing the appeal is an executive matter.

“Only the mayor can withdraw the case,” Kushi said. “It’s up to him.”

An attorney representing the Office of Council Services disagreed, and issued a memo to Council members Thursday saying they have the authority to settle the case and avoid a Supreme Court ruling.

Kushi said it’s possible that the opposing views might have to be litigated, with a judge deciding whether to force the mayor to authorize the settlement and withdraw the case.

Victorino didn’t appear before the Council on Friday, but issued a press release Thursday warning of dire anticipated impacts on Maui residents if the appeal is withdrawn, including tripling sewer rates over 10 years to pay for waste­water system changes, $1 million daily fines, a possible hit to the county’s bond rating and perhaps delayed county affordable- housing and infrastructure projects.

“It’s important for everyone, council members and our residents, to fully understand the impacts of withdrawing this case from consideration by the U.S. Supreme Court,” the mayor’s statement said.

Written testimony submitted to the Council for Friday’s hearing was lopsided, with 196 supporting a settlement and six opposed.

Of the roughly 40 people who testified in person, several said the ocean is more important than winning the case and that the county should instead put its efforts into improving the waste­water system.

Council Chairwoman Kelly King called the mayor’s projected financial impacts “fairly ridiculous” and said the county has less costly options to address the wastewater issue.

“I am very dismayed by the scare tactics in the mayor’s press release,” she said.

Voting with King to settle the case were Molina, Shane Sinenci, Tamara Paltin and Keani Rawlins-Fernandez.

The no votes were from Riki Hokama, Tasha Kama, Alice Lee and Yuki Lei Sugimura.

Sugimura expressed concern about the mayor’s projected financial impacts, including what she calculated to be $3.1 billion to pipe treated wastewater into deeper ocean waters in place of 18 county injection wells.

“I think that’s huge for us,” she said.

Sugimura also raised a question of whether Paltin, who has a past connection with one of four environmental groups that sued the county over the wastewater issue, should vote on settling the case.

Paltin said she disclosed her history and remains an advocate for the ocean and marine life.

Hokama said the county has operated its wastewater systems based on guidance from regulators, so he wants to see the court decide whether changes need to be made.

Litigation began in 2012 when four organizations — the Sierra Club, Surfrider Foundation, Hawaii Wildlife Fund and West Maui Preservation Association, represented by law firm Earthjustice — filed a complaint in federal District Court alleging that the county was violating the federal Clean Water Act for its injection well discharges of wastewater into the ocean near Kahekili Beach Park in West Maui.

An Environmental Protection Agency-funded study in 2011 used tracer dye to link the wastewater to near-shore waters off Kahekili Beach, and a 2017 U.S. Geological Survey study concluded that the wastewater was undermining coral reefs there.

At issue is whether the Clean Water Act requires a permit when pollutants originate from a point source but end up in navigable waters via a nonpoint source such as groundwater. While the law is silent on groundwater, the EPA has been interpreting the law that way from the beginning, according to Earthjustice.

The District Court ruled in favor of plaintiffs, and its decision was unanimously upheld by the 9th Circuit Court of Appeals.

The case became a national issue because of fear and hope that a U.S. Supreme Court ruling will change the way EPA regulates water pollution across the country.

Governmental and private interests have lined up on opposing sides, generally with blue states, conservation organizations and liberal-leaning groups backing the plaintiffs while the Trump administration, red states, industry and conservative-leaning groups back Maui County.

Earthjustice attorney Mahesh Cleveland, who previously described the litigation as the clean-water case of the century, has said a ruling in the county’s favor would allow industrial and municipal polluters across the country to circumvent Clean Water Act protections by positioning pollutant discharges inland from navigable waters into groundwater.

Supporters of the county have said that fear of a national impact shouldn’t be a consideration for settling the case, and that it’s an important home-rule issue for local governments to maintain regulation of groundwater.

Victorino has said he is committed to eliminating injection wells in the long term except for emergency use, and questions whether system changes to meet the Clean Water Act will improve the near-shore environment.

On Friday after the Council decision, he said in a statement, “West Maui has coral problems, but there are factors other than the county’s recycled water. Conservation measures for herbivores have improved reef conditions. We need to seek real solutions to real problems, not set people against each other.”

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