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Molina leads a renewed effort to settle injection well case with plaintiffs

Committee to take up resolution at Aug. 25 meeting

Council Member Mike Molina is leading another push by the council to settle the Lahaina injection well lawsuit, forging a resolution to accept the latest terms offered by plaintiffs during mediation of the case that has been remanded to the lower courts by the U.S. Supreme Court.

Molina, who is chairman of the council Governance, Ethics and Transparency Committee, transmitted the proposed resolution Wednesday authorizing the settlement. The measure leaves open the option for the council to accept the counterproposal from the plaintiffs or submit an alternative offer as a result of the committee’s discussion. 

“The case has continued over eight years costing the taxpayers over $4 million in legal fees,” said Molina. “Enough already. The county has challenged this case at numerous levels and the result is the same.

“It has been said: ‘The definition of insanity is doing the same thing over and over again and expecting different results.’ This is exactly what the administration has been doing over the last eight years and it has to stop.”

In 2012, the Hawaii Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club sued the county over its use of injection wells at the Lahaina Wastewater Reclamation Facility and seepage of the treated water into the ocean. The plaintiffs claimed that the county was in violation of the federal Clean Water Act.

The county was injecting 3 million to 5 million gallons a day of treated wastewater into wells beneath the Lahaina Wastewater Reclamation Facility, which sits about a half-mile from the shoreline. Studies using dyes to trace the flow showed more than half the discharge from two wells was entering the ocean.

In 2014, the U.S. District Court in Hawaii ruled that the county’s use of injection wells was a violation of the federal Clean Water Act. The county appealed to the 9th U.S. Circuit Court of Appeals and lost.

The case reached the U.S. Supreme Court with a decision rendered in April, mostly against the county.

“We hold that the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge,” Justice Stephen Breyer wrote for the court.

The high court set up a standard to determine whether a federal Clean Water Act permit is required for the release of polluted water directly or indirectly into the ocean or other bodies of water and remanded the case to the lower courts.

The 9th Circuit sent the case back to the District Court, where the case is pending, said Molina in his news release.

On May 30, Victorino’s administration proposed a settlement offer to the plaintiffs, Molina said. The offer was rejected, and the plaintiffs made a counterproposal on June 9, to which the county has not yet responded.

“The basic premise of your proposal — that the Hawaii Department of Health (DOH) should have the final word on whether the county requires a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit for discharges from the Lahaina injection wells — is fundamentally flawed,” said plaintiffs’ lawyer David Henkin of Earthjustice in the counterproposal letter.

The counterproposal calls for the county to admit that discharges of treated wastewater from the Lahaina injection wells without an NPDES permit violates the Clean Water Act, to pay plaintiffs’ fees and costs for the proceedings before the U.S. Supreme Court and to fulfill the terms set in a 2015 settlement. This includes investing at least $2.5 million in projects to divert wastewater from the injection wells, paying a $100,000 penalty to the federal government and making a good faith effort to comply with the terms of the Clean Water Act permit.

Molina cited the cost of continuing to fight the case, which could go on for several more years, amid the economic downturn created by the COVID-19 pandemic. His committee was advised that the potential cost of continuing the case at the District Court level could be $250,000 or more in attorney fees, discovery and other research, he said. 

“The county is currently in a pandemic crisis and economic downturn,” said Molina. “Our priorities should be the health, safety and well-being of our residents, not legal fees.

“We should be focusing our resources on providing financial assistance, getting people to work, economic recovery, providing shelter and improving the health and safety of our residents.”

Victorino shot back at Molina, calling the council member’s actions “reckless behavior” and claiming that he is playing “political games” with the case in a “sensitive stage of mediation.”

“Council Member Mike Molina is well aware of the status of this case, nevertheless, he appears more concerned about using any platform available to garner votes and not with helping to resolve this issue in the best interests of the parties and all of Maui County,” Victorino said. “This is highly irresponsible, and he was warned not to interfere.”

“This matter is far too important for our county to not follow through with mediation and to follow the U.S. Supreme Court’s test,” the mayor continued. “All parties are now at the table: the county, the plaintiff groups, and the State of Hawaii Department of Health. I have full faith that this matter will be resolved in the best interests of our community and the environment. I had hoped to resolve this case in the best interests of all the people of Maui County.”

About a year ago, a divided County Council passed a resolution calling for the mayor to settle the case before it was decided by the Supreme Court. That set up a dispute over the powers of the council and mayor and authority of a resolution. The mayor continued to pursue the case.

Molina said he intends to schedule the proposed resolution for review by his committee at 9 a.m. Aug. 25. In addition to receiving testimony by phone or videoconference, the committee will accept written testimony, which may be submitted by emailing get.committee@mauicounty.us. 

The meeting also will be televised on Akaku Channel 53.

* Lee Imada can be reached at leeimada@mauinews.com.

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