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Possible appeal to U.S. Supreme Court for Maui injection well case in murky waters

Honolulu Star-Advertiser
Sept. 26, 2019

By Timothy Hurley

Members of the Maui County Council majority and their attorneys insist it is over. Mayor Michael Victorino and attorneys with the county’s Department of the Corporation Counsel say otherwise.

Like the ocean waters near the Lahaina wastewater treatment plant, the question of whether the county will continue to pursue its injection well case at the U.S. Supreme Court remains murky.

The Council on Friday voted 5-4 ahead of a scheduled Nov. 6 high court hearing to settle the case linked to the wells that inject millions of gallons of treated wastewater into the ground near Kahekili Beach Park in West Maui.

The county lost in both U.S. District Court and the 9th Circuit Court of Appeals after four community groups filed a complaint in 2012 alleging that Maui County was violating the Clean Water Act for its injection well discharges.

Following its latest setback, the county appealed to the country’s highest court in a legal battle that has turned into a national test case over the scope of the federal Clean Water Act.

Over the years the Council has approved some $4 million in legal fees fighting the case.

But the makeup of the Council has changed, and earlier this month a Council committee voted to recommend approval of a settlement that, among other things, would require the county to obtain a federal pollution permit, fund at least $2.5 million in West Maui projects to divert treated sewage from the injection wells and pay a $100,000 penalty to the federal government.

Members went into Friday’s Council meeting believing they would have the final word on the case’s settlement, just as they do when they settle other lawsuits against the county. They were even backed up by their own attorneys from the Office of Council Services.

But Edward Kushi, first deputy of the Corporation Counsel, told members Friday they were wrong. He said the Council has the sole authority over a county legal settlement only if it involves money. Because this settlement has far-reaching implications for the county and involves “an exercise of municipal authority vested in the executive branch,” the mayor would have to sign off on it, he said.

On Saturday Council Chairwoman Kelly King issued a news release, citing a provision of the Maui County Charter that says resolutions approved by the Council must be “carried into execution.”

The resolution to accept a revised settlement offer in the case of Maui County vs. Hawaii Wildlife Fund, the release said, “has the force and effect of law and therefore removes authorization for the mayor to continue seeking a Supreme Court hearing on the matter. The Council expects to be fully represented in this matter by our Special Counsel and Corporation Counsel who now must withdraw the case from the Supreme Court.”

On Sunday Victorino issued a statement indicating it is now up to him whether to withdraw the case.

“From homeowners with cesspools or septic systems to hundreds of millions of dollars in treatment plant conversions with questionable environmental benefits, the effect this case could have on our residents is enormous. These issues are not scare tactics or fake news — these are very real concerns that I must fully vet in considering whether to withdraw from Supreme Court review,” he said.

Victorino, who has been a strong advocate of fighting the lawsuit, said he’s reaching out to experts, regulatory agencies, the state and other counties and those who could be affected by this action as he considers what to do next.

Asked to respond to Victorino, King said the Corporation Counsel is being instructed to withdraw from the case as a result of Friday’s vote.

“The mayor is irrelevant at this point,” she said.

King said that Victorino’s mention of penalties for cesspool and septic system owners amounts to “fear-mongering” because he knows the Council has been informed by the state Department of Health that stricter standards will not be enforced.

As for the Corporation Counsel, King said the department’s attorneys have gone from being advisers to advocates in this case.

“It’s disheartening to see this happen,” she said. “The Corporation Counsel put heavy pressure on the Council to look at things their way.”

David Henkin, attorney with Earthjustice, the firm representing the four community groups, said it was curious to see county attorneys reveal their interpretation of settlement authority the day of the vote Friday, especially after sitting through previous committee meetings on the same subject and remaining silent.

“It smells fishy,” he said.

Any refusal to carry out a Council directive, King said, would be grounds for a complaint to the state’s Office of Disciplinary Counsel.

On Friday Kushi told the Council members that the issue might end up in court with a judge deciding whether to force the mayor to authorize the settlement and withdraw from the case.

“I hope it doesn’t come to that,” King said Monday.

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