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Mayor Victorino Maintains Maui County’s U.S. Supreme Court Appeal

Mayor Michael Victorino announced today that Maui County will not withdraw its appeal of the Lahaina injection well case from consideration by the U.S. Supreme Court.

“I want Maui County taxpayers and ratepayers to have their day before the U.S. Supreme Court and get clarity on this important question on the application of the Clean Water Act,” Mayor Victorino said. “To allow this to go unanswered leaves us vulnerable to more lawsuits, to uncertain regulatory requirements and staggering costs – all for what would be a negligible environmental benefit. The legal exposure is immense, not only for the County but for private property owners as well. It goes far beyond injection wells. The Ninth Circuit’s decision means that many County facilities – including Parks, Public Works, Environmental Management are likely in violation of the federal law as it’s interpreted by this court. Penalties can be imposed of nearly $55,000 per day per source. The effect on private property values, and the associated property taxes which fund the majority of County operations, cannot be ignored.”

Attached is Mayor Victorino’s letter to Maui County residents and a Corporation Counsel opinion on settlement authority. Letters, memorandums and other documents connected with the case can be found at: https://www.mauicounty.gov/DocumentCenter/Index/4893

Here are some questions and answers on this case:

Is Mayor Victorino ignoring the will of the County Council’s majority in deciding not to settle the Lahaina injection well case?

Mayor Victorino: “I did not ignore the 5-4 vote of the County Council. The vote authorized the necessary funding but did not require me to settle this case. After much consideration and consultation with experts, regulators, state and county agencies and others, I decided that it’s in the best interest of the people of Maui County not to settle and withdraw this case from Supreme Court review. In a settlement such as this, the mayor and County Council both need to concur. In this case, I don’t concur with the Council majority. This follows the long respected principle of separation of powers in government.”

If Maui County is successful on appeal, would this “gut” the Clean Water Act?

Mayor Victorino: “No. Congress drafted the Clean Water Act in the 1970s as an ‘end of pipe’ federal law, regulating direct discharges into surface waters of the United States, including rivers, lakes and the ocean. Congress specifically left the governance of groundwater to the states, and the State of Hawaii has regulated impacts to groundwater for decades. The 9th Circuit ruling expanding the application of the CWA to include non-source point discharges into groundwater, which transfers a great deal of oversight of our resources to the federal Environmental Protection Administration. We believe this is incorrect, contrary to Congress’ intent and an unfeasible way to regulate groundwater impacts. If changes need to be made, they should be made not by judicial mandate but by Congress with the benefit of thorough scientific studies and public hearings.”

Is Maui County aligning itself with polluters who want to bypass the Clean Water Act?

Mayor Victorino: “No. This is a home rule issue for Maui County. Since 2012, we’ve been defending ourselves against this lawsuit. The plaintiffs and other interest groups brought this case and others like it in multiple federal circuits to test their theories to expand the Clean Water Act. Conflicting rulings in those circuits led to the present case being taken before the Supreme Court. Amicus briefs have been filed by numerous parties, including other county municipalities facing similar challenges as Maui County.”

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