A decision by Maui County, Hawaii, appears to have ended hopes of farm groups for a favorable Supreme Court decision on the scope of the Clean Water Act.

The county on Friday voted narrowly, 5-4, to pull out of a Supreme Court case involving a wastewater treatment plant on the Big Island. The 9th U.S. Circuit Court of Appeals ruled last year that the county needed a discharge permit because the wastewater makes its way to the Pacific Ocean, a “water of the U.S.,” after being injected into wells and traveling through groundwater.

The majority of county council members said they did not want their county to facilitate a decision that would limit the reach of the CWA.

Numerous farm groups, including the American Farm Bureau Federation, Agricultural Retailers Association, CropLife America, and The Fertilizer Institute filed an amicus brief in the Supreme Court arguing that the 9th Circuit ruling “has the potential to turn normal agricultural activity without [a National Pollutant Discharge Elimination System] permit into a crime.”

The county’s resolution is not the final word. It “authorizes” Maui Mayor Michael Victorino to settle the case with the Hawaii Wildlife Fund, but does not order him to do so, which the county’s corporation counsel said would lead to further litigation. Victorino has not been in favor settling the case, saying it would cost hundreds of millions of dollars to comply with the CWA.

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