October 07, 2019

Maui or Not? Here Comes the Latest on the Hydrological Connectivity Theory

Laura Heusel

One of the most significant Clean Water Act (CWA) questions of the time––whether the CWA requires a permit for pollutants that originate from a point source but are conveyed to navigable waters via groundwater––may not be answered by the justices of the Supreme Court after all. The Court is scheduled to hear oral arguments on this question in Hawai’i Wildlife Fund v. County of Maui on November 6, 2019. But a recent decision by the Council of the County of Maui on Governance Ethics and Transparency (Council) could be a step toward settlement that may moot the oral argument before it happens. On September 20, 2019, the Council recommended that Maui’s County Council authorize a settlement of the case that includes “good faith” efforts by the County to obtain an NPDES permit and work to replace use of disposal wells with beneficial uses of the treated wastewater. See Lara Beaven, High Court’s Groundwater Case Uncertain Despite Maui, Inside EPA (Oct. 3, 2019) (citing proposed Resolution Authorizing Settlement). The City Council voted 5-4 to adopt the resolution but to date, Maui Mayor Michael Victorino does not recommend settlement. Id. Legal questions remain as to whether a vote to end litigation requires the mayor’s approval. It is not known whether the settlement will affect the pending oral arguments.

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