Bloomberg Law
Sept. 21, 2019, 1:42 AM

Maui Moves to Nix Supreme Court Water Case, But Questions Linger

Ellen M. Gilmer
Ellen M. Gilmer

Local officials in Hawaii have decided to withdraw a major environmental case from the Supreme Court’s docket.

The Maui County Council voted 5-4 on Sept. 20 to settle County of Maui v. Hawai’i Wildlife Fund, a case with big implications for the scope of the Clean Water Act.

The panel directed county officials to retreat from the Supreme Court case, which is scheduled for Nov. 6 oral arguments, and follow a settlement agreement reached during an earlier stage of litigation.

However, council members were divided on whether the body has authority to require the legal settlement, or if that authority lies with Mayor Michael Victorino, who opposes dropping the case.

Lawyers for the county and the council gave conflicting advice on the matter.

“Well, this is a bombshell,” said council member Mike Molina, who voted to settle the litigation.

The eleventh-hour disagreement could stall or derail a final resolution. But the council opted to complete the vote and address any challenges to its authority later.

Case History

The case centers on whether the county needs Clean Water Act permits for disposal wells where treated wastewater mixes with groundwater and ends up in the Pacific Ocean.

The statute mandates permits for pollution that moves from a distinct source to a federally regulated waterway. Groundwater is not such a waterway, but the Pacific Ocean is.

The U.S. Court of Appeals for the Ninth Circuit in 2018 sided with environmentalists who said the county should have sought Clean Water Act permits.

The Supreme Court agreed to review the ruling during its upcoming term. The case has attracted broad interest from lawyers, scientists, environmental activists, industry groups, states, and cities.

Next Steps

If the settlement moves forward without challenge, county lawyers will drop the case and accept a previous settlement they reached with local environmental groups.

The agreement requires Maui to invest $2.5 million in wastewater reuse systems, pay a penalty and work to secure a permit.

With the case off its docket, the Supreme Court could opt to take up the key Clean Water Act question in another petition the justices have kept on hold all year.

Kinder Morgan Energy Partners LP v. Upstate Forever involves similar issues in a dispute stemming from a gasoline pipeline rupture in South Carolina.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editor responsible for this story: Gregory Henderson at