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Environment & Energy Report

Maui Lawmaker Asks Supreme Court to Ditch Clean Water Act Case

Oct. 10, 2019, 1:48 PM

A top lawmaker in Maui County is calling on the U.S. Supreme Court to scrap a significant Clean Water Act case less than a month before the justices are set to hear oral arguments.

In an Oct. 9 letter to the court, Maui County Council Chairwoman Kelly T. King explained that local lawmakers on Sept. 20 voted to settle the case and are now feuding with Maui Mayor Michael Victorino and a team of lawyers over finalizing the deal.

“They have now adopted the unsubstantiated position that the County Council does not have the authority to settle the case without the Mayor’s agreement,” she wrote.

“I respectfully request the U.S. Supreme Court dismiss Case No. 18-260, or, at the very least, postpone the hearing until Maui County can resolve our Charter crisis by determination of the Council’s authority in court within the State of Hawai’i or otherwise,” she added later.

A legal dispute with potentially sweeping effects on water permitting is on the line.

At issue in the Maui case is whether the Clean Water Act’s permitting program applies to pollution that flows through groundwater—which is generally not under federal jurisdiction—but then reaches a federally regulated waterway.

Next Steps

King said the council is considering a resolution to appoint special counsel to represent it in the disagreement with the mayor’s office.

Lawyers from the global firm Hunton Andrews Kurth LLP are representing Maui in the Supreme Court. Attorney Elbert Lin filed a letter with the high court last week indicating that his firm is taking direction from county lawyers who say the mayor, not the council, has authority over whether to settle.

Oral arguments are scheduled for Nov. 6.

The case is County of Maui v. Hawai’i Wildlife Fund, U.S., No. 18-260.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com