Citizens Tell Agribusiness Development Corporation: Comply With The Law Or We’ll Sue

Earthjustice, on behalf of community groups Na Kiaʻi Kai, Surfrider Foundation, and Pesticide Action Network, sent notice today to the state Agribusiness Development Corporation that it intends to sue the agency for illegally polluting ocean waters on Kauaʻi’s west side.

ADC—the state agency charged with promoting diversified agriculture—operates a 40-mile drainage ditch system on the Mānā Plain, where it leases thousands of acres to agrochemical companies growing pesticide-intensive genetically engineered seed crops for export. The open ditches flow through the fields and populated areas before funneling into the sea near Kekaha and Waimea.

The state Department of Health and Department of Agriculture have found toxic pesticides and chemicals like atrazine, bentazon, chlorpyrifos, fipronil, metolachlor, propiconazole, and simazine in the drainage system. Chlorpyrifos has been linked with neurological impairment, persistent developmental disorders, autoimmune conditions, lung cancer, colorectal cancer and non‐Hodgkin’s lymphoma. Exposure during pregnancy can permanently impair a child’s mental development. Glyphosate is a probable carcinogen that can lead to reproductive difficulties and kidney problems. Atrazine can slow fetal growth and trigger preterm births.

For decades, the drainage ditch system was subject to regulatory oversight, pollution monitoring and reporting under a Clean Water Act permit issued by the Department of Health.  But last August, ADC decided that complying with the law would be too burdensome and withdrew its permit renewal application. So now, ADC operates the 40 miles of ditches as an open sewer, with no treatment or monitoring, carrying chemicals and other pollution through the towns and into the ocean all along the west side.

“The agency turned its back on communities that are already burdened by the pesticides drifting into their neighborhoods from the chemical companies’ fields,” said Earthjustice attorney Kylie Wager. “ADC now won’t sample or report what’s going into the water in its ditch system, preventing the public from knowing just how polluted that water is, and what it’s doing to the nearshore waters.”

“In our efforts to ensure clean beach waters on the island of Kauaʻi, Surfrider Foundation tested these ditches and confirmed they chronically contain pesticides. The beaches and coastal waters affected by this issue on the west side of the island are important recreational resources for fishing, swimming, surfing, and boating. These resources must be protected for the public through the full force of the Clean Water Act,” added Angela T. Howe, Esq., Legal Director for the Surfrider Foundation.

The open drainage ditches flow through the towns, and there are no fences or other measures to warn or prevent children from playing in them. The water flows directly into popular recreational areas like Majors Bay, Kinikini Ditch, MacArthur Beach Park, and Kikiaʻola Harbor.  Native Hawaiians fish and gather limu in these areas to feed their families, and people surf at the mouth of the pollution outfalls.

According to 2012 U.S. Census estimates, the great majority of Kekaha and Waimea residents are people of color, many of whom are Native Hawaiian. Studies have shown that many communities of color suffer disproportionate impacts from pollution; Kekaha and Waimea are among them.

The Clean Water Act prohibits discharge of pollutants into the nation’s waters without a permit. The community groups intend to file a lawsuit after sixty days to regain regulatory oversight and monitoring over pollution from the drainage ditch system unless ADC either stops polluting or obtains the required permits.

Read the notice of intent.