Two Sides Still At Odds Over Maui Water Case Bound For Supreme Court

Hawaii Public Radio
October 9, 2019

By ASHLEY MIZUO

Kahakili Beach Park and Lahaina Wastewater Reclamation Facility / LAHAINA GROUNDWATER TRACER STUDY

As the legal dispute between Maui County and environmental groups barrels forward to the United States Supreme Court, people weighed in Tuesday at a Maui Council committee meeting on the case.

Four environmental groups, the Hawaii Wildlife Fund, the Maui Sierra Club, the Surfrider Foundation and the West Maui Preservation Association, sued Maui County in 2012. Their lawsuit charged the county violated the federal Clean Water Act because a Lahaina wastewater plant pumped treated waste into the groundwater which then flowed into the ocean.

The environmental groups won their case in the Ninth Circuit Court of Appeals, but the county is appealing the decision to the Supreme Court.

Other courts have weighed in on the issues as well and their decisions have not been unanimous. That is why the county is seeking clarificaiton from the Supreme Court, explained Councilmember Yuki Lei Sugimura.

However, state Rep. Angus McKelvey of West Maui questioned whether the county should pursue the case.

“The reconciliation between circuits and the division between circuits is the reason why the Supreme Court would like to look at this, but is that Maui County’s interest?” he said. “No, I think our interest here is to address the wastewater situations both globally in Maui County as well as the Lahaina injection well.”

Environmentalists fear that the conservative-leaning high court may rule against environmental protections. They have urged the county to settle the case under acceptable terms.

Stuart Coleman, Hawaii coordinator at the Surfrider Foundation, among the groups bringing the suit, told the committee that they were reluctant to take the case to trial in the first place.

"We've always been, let's litigate, not mitigate," Coleman said.

"There have been some very last-minute settlement offers that have been offered literally at the midnight hour and even those we tried to take in good faith, but they weren't really offered in good faith, it seemed."

Others watching the case, including the Realtors Association of Maui, said it wants to see a decision out of the Supreme Court so that water treatment requirements are clear.

Efforts to settle the dispute have been ongoing.

The committee members voted 4-4 in May 2019 to bring a settlement proposal to the full council but one member was absent and the matter failed to move forward. The Governance, Ethics and Transparency Committee is now set to take up the issue on Friday.

Meanwhile, the Environmental Protection Agency is weighing in on the side of the county, asserting that the release "of pollutants to groundwater are categorically excluded from the [Clean Water] Act’s permitting requirements...". The agency said Congress "explicitly left regulation of discharges to groundwater to the states and to EPA under other statutory authorities."

Arguments in the case will be heard before the Supreme Court in November.

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