A Maui County Council Committee on Tuesday will consider dropping its appeal of the Lahaina wastewater treatment plant court case, a legal battle that has turned into a national skirmish over the scope of the federal Clean Water Act.
The Council’s Governance, Ethics, and Transparency Committee will take up a resolution to settle the case and withdraw from the county’s appeal to the U.S. Supreme Court.
The high court is scheduled to hear the case
Nov. 6.
Petitions signed by more than 15,000 Sierra Club and Surfrider Foundation members were delivered Wednesday to the Maui County Council urging the settlement of the case.
But Maui Mayor Mike Victorino has been urging Council members to
reject the proposal.
“This is like saying you’re in the bottom of the 9th, you’re down one run, and you tell your batter to put down the bat and walk off the field and throw the game. This is not a responsible choice for Maui County or its property owners and residents,” he said in a statement Friday.
Four community groups — the Sierra Club, Surfrider Foundation, Hawaii Wildlife Fund and West Maui Preservation Association — filed the complaint with the federal District Court in 2012, alleging that Maui County was in violation of the Clean Water Act for its injection well discharges of municipal wastewater into the ocean near Kahekili Beach Park in West Maui.
The District Court agreed, and its decision was unanimously upheld by the 9th Circuit Court
of Appeals. The county
appealed to the U.S. Supreme Court.
After the petitions were delivered to the office of Council Chairwoman Kelly King on Wednesday morning, Victorino issued a news releasing accusing the community groups and their attorneys from the environmental law firm Earthjustice of ratcheting up pressure on the county to withdraw its appeal.
“The petition doesn’t speak to the merits of our appeal to the U.S. Supreme Court,” Maui County spokesman Brian Perry said in the release. “It seeks to create fear of national impact over what is a home rule issue for Maui County and its right to appeal a 9th Circuit decision that creates a costly and potentially impossible
regulatory burden on municipalities and taxpayers.”
Maui County operates its Lahaina wastewater injection wells safely and in compliance with the law, according to the release, and ocean water quality has even improved over the last decade, it said, citing a West Maui fish study.
The Lahaina plant disposes of 3 million to 5 million gallons of treated sewage daily through its underground injection wells. Environmentalists have argued for decades that pollution from the wells is contaminating groundwater that seeps into the ocean, killing coral and triggering algae blooms in West Maui waters.
After an Environmental Protection Agency-funded study in 2011 used tracer dye to link the Lahaina sewage to near-shore waters off Kahekili Beach, the community groups sued, accusing the county of violating the Clean Water Act.
In 2015 the county agreed in a conditional settlement to spend $2.5 million on projects to divert treated wastewater from the Lahaina facility and pay a $100,000 penalty to the federal government. The settlement remains conditional as long as the county is appealing the case.
Then, in 2017, a U.S. Geological Survey study concluded that discharge from the sewage treatment plant was undermining the coral reefs off Kahekili.
The suit has turned into a major environmental case that could change the way the EPA regulates water pollution across the country.
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.
Governmental and private interests are taking sides in the case across the country, with blue states, conservation organizations and liberal-leaning groups lining up behind the community groups and the Trump administration,
industry and conservative-leaning groups and red states backing Maui County.
“What started out as a backyard issue has taken on a life of its own. Now it’s a national issue, the clean-water case of the century,” Earthjustice attorney Mahesh Cleveland said.
“The loophole” the county seeks, Cleveland said, would allow industrial and municipal polluters across the country to evade regulation under the Clean Water Act simply by moving their discharges just short of the shores of navigable waters or dumping pollutants into the groundwater.
“The Supreme Court is either going to uphold the law or totally take the juice out of the Clean Water Act,” he said.
But Victorino said the case is about gaining clarity on a home-rule issue and avoiding the potential for a costly regulatory burden on municipalities and taxpayers. The 9th Circuit’s ruling, if allowed to stand, he said, could lead to widespread and costly regulation of cesspools and septic systems.
The Council committee has received more than 500 pieces of testimony about the case this year, and many people are expected to testify at Tuesday’s 9 a.m. hearing.