Statement from Maui Mayor Mike Victorino

Sept 8, 2019

I am disappointed that the Council’s Governance, Ethics and Transparency Committee did not consider my settlement proposal on Friday, prior to voting 5-3 to accept the plaintiffs’ proposal that the County withdraw from the U.S. Supreme Court’s review in the Lahaina injection well case.

Discussion of my proposed settlement offer needed to be in a closed executive session, outside of the hearing of opposing counsel in this case. I question the decision by some council members not to even consider my proposal.

The effects of the Ninth Circuit Court’s expansion of the Clean Water Act on our already tight housing market could be severe. 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 list goes on, and it’s sobering. My hope is that the County Council members take this opportunity before their final vote to truly consider the consequences of their actions.

Maui Co: FAQs about Maui County’s Injection Well Appeal to the U.S. Supreme Court 

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WOTUS: Maui Council Committee Recommends Capitulate to EarthJustice

Maui News, Sept 7, 2019:

… Members of the council Government, Ethics and Transparency Committee voted 5 to 3 to recommend that the full council settle and remove the case from consideration by the high court.

Those voting in favor were committee Chairman Mike Molina, Keani Rawlins-Fernandez, Shane Sinenci, Kelly King and Tamara Paltin. Those voting against were Alice Lee, Yuki Lei Sugimura and Tasha Kama. Riki Hokama was absent and excused.

The committee action comes as Maui County is scheduled to have its appeal heard before the Supreme Court in November. The case, which will have national implications, deals with the reach of the Clean Water Act.

The case stems from a lawsuit filed in 2012 by four environmental groups against the county over injection wells at the Lahaina Wastewater Reclamation Facility. Plaintiffs say the effluent is reaching the ocean and impacting coral reefs and sea life.

The county argues that the discharge of the treated wastewater from injection wells does not require permits under the Clean Water Act because the pollutants do not flow directly into the ocean, but rather indirectly through groundwater.

The high courts chose to hear the Maui County case because circuit courts around the country were split over the reach of the Clean Water Act. Maui County has lost in lower courts, most recently in the 9th Circuit Court of Appeals.

The council committee voted on a resolution to approve a settlement first proposed publicly by plaintiff Earthjustice earlier this year. The terms include:

• Community groups not bringing litigation for additional penalties as long as the county makes good faith efforts to reduce its reliance on the Lahaina injection wells and injection wells at other facilities as well.

• Pursuant to the parties’ prior agreements, which have been entered as court orders, the county would reimburse the community groups’ costs of litigation in U.S. District Court and the 9th Circuit.

• Pursuant to the previously entered settlement agreement and order, the county would make good faith efforts to secure and comply with the terms of a National Pollutant Discharge Elimination System permit, or an equivalent control document, for the Lahaina injection wells.

Maui County Mayor Michael Victorino had proposed a new settlement offer and sought a closed session with members to hear the terms. But the committee deadlocked on going into closed session and never heard the mayor’s proposal.

Managing Director Sandy Baz said the administration did not want to disclose terms publicly without first briefing the committee in private, noting the need to protect the county and the council. Deputy Corporation Counsel Richelle Thomson offered the same legal advice to the council….

read … Maui Council committee recommends wastewater court settlement

SA: The committee’s recommendation now goes to the full Council. The case is scheduled to be heard by the high court Nov. 6.