Published in The Maui News, October 4, 2015
By MIKE WHITE, for The Maui News
The Maui County Council has approved an agreement with the Environmental Protection Agency and Earthjustice over the use of injection wells in West Maui that will allow the county to contest liability before the 9th Circuit Court of Appeals while also limiting exposure to county taxpayers if there’s an adverse ruling.
This creative and efficient plan – which limits potential fines to $100,000 – was crafted by Council Vice Chairman Don Guzman’s Committee of the Whole and expert outside counsel.
An agreement was necessary after U.S. District Court Judge Susan Oki Mollway issued an unprecedented ruling extending the reach of the federal Clean Water Act to groundwater, including wastewater injection wells. Historically, these wells have been regulated by both state and federal agencies under the Safe Drinking Water Act.
This decision will be challenged in the 9th Circuit and, if necessary, the Supreme Court by not only the County of Maui, but also by national organizations representing state and local governments. This case will set national precedent.
Maui County is the very first entity in the nation to be affected by this interpretation of the law. There are 5,600 similar wells currently operating in Hawaii, with more than 400,000 nationwide.
The council-approved settlement agreement, executed Sept. 24, will allow for continued operation of injection wells pending a final ruling by the appellate courts.
If the courts confirm the county’s liability, the county would pay $100,000 to the U.S. Treasury and be required to invest $2.5 million in environmental projects in West Maui, under the terms of the agreement.
The injection wells at issue in the case (Hawaii Wildlife Fund vs. County of Maui) were constructed with the support of, and operated for more than 40 years with the permission of, federal and state regulators. Yet, no federal or state agencies are being subjected to the same legal scrutiny or exposure.
The county has agreed to make good-faith efforts to secure a National Pollutant Discharge Elimination System permit for the injection wells, and indeed submitted an application for the permit to the state Department of Health three years ago. DOH has taken no action on the permit to date.
This council has been moving responsibly toward greater use of recycled water – thus limiting the need for greater use of injection wells – under the leadership of Council Member Elle Cochran of West Maui. Protecting the natural environment is first on the list of core themes in the council-enacted Countywide Policy Plan.
The council clearly supports environmental initiatives, by word and deed. But Judge Mollway’s novel and far-reaching ruling must be reviewed.
In other news, the council on Tuesday will consider several committee reports, covering topics such as acquisition of property for the expansion of the Iao Water Treatment Facility, authorization of a grant of real property for the Maui Memorial Medical Center and appointments to various boards and commissions.
Several bills submitted for the Maui County and Hawaii State Association of Counties legislative packages will also be considered. The council knows early preparation and a unified message will be keys to the counties’ success in the 2016 state legislative session, which starts Jan. 20.
This session will be particularly important to county taxpayers as the Legislature will review a report from a task force studying the appropriate allocation of transient accommodation tax revenue. More TAT revenue needs to be returned to those who directly earn it – the county taxpayers and residents who provide the services and programs that support the visitor industry.
Also, I have introduced a resolution to establish a blue-ribbon special committee to review the merits of a county manager form of government. The council will also consider a resolution recognizing October as Domestic Violence Awareness Month.
* Mike White is chairman of the Maui County Council. He holds the council seat for the Paia-Haiku-Makawao residency area. “Chair’s 3 Minutes” is a weekly column to explain the latest news on county legislative matters. Go to mauicounty.us for more information.