A Maui County Council committee voted Friday night to drop its U.S. Supreme Court appeal over the long-standing lawsuit challenging the Lahaina injection wells.
The Council’s Governance, Ethics, and Transparency Committee voted 5-3 with member Riki Hokama excused.
Kelly King, Keani Rawlins-Fernandez, Tamara Paltin, Shane Sinenci and Mike Molina voted to settle, while Tasha Kama, Alice Lee and Yuki Lei Sugimura voted to keep the appeal alive.
The committee’s recommendation now goes to the full Council. The case is scheduled to be heard by the high court Nov. 6.
Earlier, the committee ended up not going into executive session to consider a settlement proposal by Mayor Michael Victorino after failing to get the required six votes in favor of the move.
Details of Victorino’s resolution were unknown, but the mayor has been an ardent supporter of the Supreme Court appeal, saying it’s about gaining clarity on a home-rule issue and potentially avoiding costly new regulations.
Rawlins-Fernandez said the exercise was a waste of time because she didn’t think Victorino was serious about settling the case.
King, the Council chairwoman, said she would have been happy to hear the mayor’s proposal in public but that “it’s a bit shibai for him to spring this on us last-minute.”
Four community groups filed a 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 wastewater into the ocean near Kahekili Beach Park in West Maui.
An Environmental Protection Agency-funded study in 2011 used tracer dye to link the Lahaina sewage to near-shore waters off Kahekili Beach, and a 2017 U.S. Geological Survey study concluded that discharge from the plant was undermining the coral reefs there.
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.
Earlier, Bruce Anderson, director of the state Department of Health, spoke to the committee by speakerphone and prefaced his remarks by saying he wouldn’t comment on the impact of the 9th Circuit Court ruling.
Anderson said the county applied for an NPDES (National Pollutant Discharge Elimination System) permit after the court ordered the county to submit one in 2015.
“It’s been sitting on our desk for three years,” he said, adding that there has been no guidance from the federal level and that the department has been unable to process the application.
Anderson said the NPDES program is designed for regulating pollution in surface waters, while the current UIC (Underground Injection Control) permit applies to impacts to groundwater. More than 600 injection wells statewide, including 70 on Maui, are regulated by the UIC program.
Anderson said the state would have to develop rules for groundwater quality before issuing an NPDES permit.
“Whatever happens on Maui will be precedent for the other wells,” he said.
Anderson said he was willing to work with the county with whatever permit is required for the Lahaina Plant but that the ultimate solution is to avoid using injection wells.
“Hopefully, there’s possible settlement, rather than how to make a NPDES program work,” he said.
Deputy Corporation Counsel Richelle Thompson said that if the 9th Circuit ruling stands, the EPA has indicated that the county will have to obtain an NPDES permit. And because the county has been unable to get a permit, it will be forced into immediate and costly alternatives.
The most likely alternative, according to county staff members, is the construction of a $130 million outfall, a pipe that would carry treated sewage farther out to sea for greater dilution.
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