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High court to hear oral arguments for Maui case

Reach of the Clean Water Act hinges on Lahaina injection wells decision

MICHAEL VICTORINO - Goes to Washington

The Maui News

The U.S. Supreme Court will hear oral arguments Wednesday morning on the controversial injection wells case that Maui County Council has sought to settle, but that Mayor Michael Victorino has decided to pursue.

County of Maui v. Hawaii Wildlife Fund will help determine whether the Clean Water Act covers pollution discharges that enter protected waters indirectly. Four environmental groups that sued the county in 2012 have argued that the treated sewage from injection wells at the Lahaina Wastewater Reclamation Facility has been seeping into the ocean, damaging coral reefs. The county has countered that it doesn’t need permits under the Clean Water Act because the treated wastewater has not been entering the water directly, but rather indirectly through groundwater.

Oral arguments will start at 10 a.m. EST (5 a.m. HST), according to a news release from Earthjustice, which is representing the Hawaii Wildlife Fund, West Maui Preservation Association, Sierra Club-Maui Group and the Surfrider Foundation.

“We are arguing against Maui County’s extremist position that unless a pipe goes directly into the ocean or a lake and river, it is completely unregulated by the Clean Water Act,” said David Henkin, staff attorney from Earthjustice’s Mid-Pacific office who will be arguing the case. “If the Supreme Court endorses the county’s position, it would open a massive loophole for every polluter in the country to avoid regulation of their discharges by the law that protects the nation’s waterways.”

Victorino announced that he was traveling to Washington, D.C., Monday evening to hear the oral arguments.

“I am looking forward to Maui County having its day in court before the highest court in our country,” Victorino said in a news release Monday. “Federal circuit courts have rendered varying decisions on the applicability of the Clean Water Act. The Supreme Court can now settle this matter, and the county can manage its operations and resources with certainty under the law for the benefit of our residents and environment.”

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. The county appealed to the 9th U.S. Circuit Court of Appeals and lost in February 2018. The court denied the county’s request to reconsider the ruling in March 2018.

However, the U.S. Supreme Court agreed to hear the county’s case after other circuit courts around the country produced different rulings on cases involving the Clean Water Act.

In September, the council voted 5-4 by resolution to settle the injection wells case. But last month, Victorino announced that he would be moving forward.

“This is a case of historic importance regarding home rule for Maui County,” Victorino said Monday. “For decades, Maui County has produced clean, safe recycled water, regulated under the federal and state Safe Drinking Water acts. Requiring compliance under an inappropriate regulatory scheme provided under the Clean Water Act would risk staggering costs of retrofitting treatment plants, jeopardize our recycled water program, and expose our taxpayers and ratepayers to endless, costly legal battles over a new interpretation of regulations for wastewater disposal.”

Earthjustice and its clients have argued that Victorino has been stoking fear over the impacts of the case to everyday homeowners and county taxpayers. They hoped the Supreme Court would side with the lower court decisions.

“We hope that the letter and intent of the Clean Water Act are upheld by the U.S. Supreme Court in our case, and that they rule in our favor, as the two previous courts have done, and continue to protect the nation’s lakes, rivers and nearshore waters,” said Hannah Bernard, executive director and co-founder of Hawaii Wildlife Fund. “After 12 years of fruitless negotiations and filing of this lawsuit, we are dismayed that our case was elevated to this level by Maui County’s mayor, since it defies the will of the people of Maui and the Maui County Council to protect our reefs.”

Victorino’s trip to Washington, D.C. is expected to cost taxpayers about $3,000 for airfare and hotel accommodations. Communications Director Brian Perry said the money is coming out of the Office of the Mayor budget.

Victorino will arrive in the nation’s capital today and will hear oral arguments on Wednesday.

He will then meet with members of Congress on Thursday, and is taking a vacation day on his own time on Friday.

Perry said the mayor would be paying for his own expenses during that time.

He will return to Maui on Sunday.

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