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Update 5:15 p.m.: Victorino to continue to pursue injection well case before Supreme Court

Maui Mayor Michael Victorino will defy a County Council resolution and continue to pursue the county’s case before the U.S. Supreme Court over Lahaina injection wells.

The mayor posted a letter on the county website Friday afternoon.

“I have decided not to exercise the authority to settle Hawaii Wildlife et al v. County of Maui,” he said in the letter.

“There are strong opinions on both sides of this important issue,” he said. “But leadership is not about making easy, popular decisions. I believe the best interests of our residents, our visitors and the environment will be best served by having this case settled by the Supreme Court.”

He said that he did not make the decision lightly and met with experts, regulators and officials with the state and other counties.

Victorino cited the “staggering costs” of retrofitting treatment plants, jeopardizing the recycled water program, and exposing county taxpayers “to costly legal battles over a new interpretation of regulations for wastewater disposal.”

He supports 100 percent recycling of wastewater “but that takes time and money as well as private property owners willing to take our water as paying customers.”

At issue is whether the federal Clean Water Act applies to county injection wells and pollutants that seep through the ground into the ocean.

“With the high court’s clarity on this issue, the county can manage our operations and resources with certainty under the law,” he said.

On Sept. 20, the council voted 5-4 on a resolution that calls for the settlement of the injection wells case, County of Maui vs. Hawaii Wildlife Fund, under terms proposed by the plaintiffs. The resolution authorizes Victorino to withdraw the case, which is scheduled to be heard by the high court Nov. 6.

Council Chairwoman Kelly King has been attempting to force the mayor to comply with the resolution. A measure before the council Friday called for authorizing the hiring of special counsel to get clarity over who has the authority over the lawsuit before the Supreme Court. The council did not get to the item Friday and will be taking it up again Oct. 29.

In 2012, the Surfrider Foundation Maui Chapter, Sierra Club Maui Chapter, West Maui Preservation Association and Hawaii Wildlife Fund filed a complaint against the county over the use of injection wells at the Lahaina Wastewater Reclamation Facility, saying effluent was reaching the ocean, impacting marine life and violating the federal Clean Water Act.

The county argued the discharge of treated wastewater from injection wells doesn’t need permits under the Clean Water Act because pollutants do not flow directly into the ocean but rather indirectly through groundwater.

In 2014, the U.S. District Court in Hawaii ruled that the county’s use of injection wells was a violation of the Clean Water Act. Then, the 9th U.S. Circuit Court of Appeals denied a county appeal and shut down its request to reconsider.

In February, the U.S. Supreme Court agreed to hear the case. The issue the court will decide involves whether the Clean Water Act applies not only to direct follows of pollutants in rivers, lakes and the ocean but indirect ones, as is the case with the treated water from injection wells.