Community groups Na Kia‘i Kai, the Surfrider Foundation, and Pesticide Action Network — represented by Earthjustice — and the State of Hawai‘i’s Agribusiness Development Corporation (ADC) entered into an agreement yesterday in federal court to address the agency’s ongoing violations of the federal Clean Water Act in West Kauaʻi. Negotiations commenced after the court ruled in July that ADC was violating the Clean Water Act by discharging millions of gallons of waters contaminated with pesticides, sediment, and heavy metals each day from the drainage ditch system it operates on the Mānā Plain into the nearshore ocean waters without the required National Pollutant Discharge Elimination System (NPDES) permit.

In lieu of going to trial for the court to decide what actions ADC must take to come into compliance with the Act, the parties resolved these issues through settlement. The agreement, which the parties have reached in principle and will formalize in the coming months, provides for:

• a six-month deadline for ADC to apply for an NPDES permit to regulate, limit, and monitor pollution from the drainage ditches;
• prompt implementation by ADC of a robust water quality monitoring program (for pesticides, toxicity, heavy metals, petroleum, bacteria, and sediment) and best-management practices to reduce contamination;
• regular disclosure of water quality data on a public website;
• a prohibition against increasing discharges from the drainage ditches until ADC secures an NPDES permit; and
• the community groups’ ability to go back to court if ADC does not secure a permit within two-and-a-half years.

The roughly 40 miles of drainage ditches collect polluted runoff and groundwater from thousands of acres of former sugar plantation lands that ADC now licenses to large-scale agribusinesses and various industrial operations. The ditches are unlined and eroding and discharge pesticide pollution and murky brown waters along Barking Sands and MacArthur beaches, where people regularly fish, swim, and surf. An NPDES permit will limit the amount of pollution ADC can discharge into the ocean, ensuring that the discharges do not violate water quality standards that protect public health and provide for safe subsistence fishing and recreation.

“We are thrilled that ADC was willing to come to the table to hammer out a plan for prompt oversight of the drainage system and comprehensive testing of the drainage waters. The settlement will provide critical water quality data to determine how pollution from the ditches can best be controlled going forward,” said Earthjustice attorney Kylie Wager Cruz.

“We are happy to close this chapter of the lawsuit and begin to focus on responsible management of the drainage ditches and the Mānā Plain after decades of mismanagement,” said Na Kia‘i Kai member Bren Naka‘ahiki. “Our members have been living near the ditches and fishing near the outfalls for generations. We deserve to know whether these waters are safe and to have the peace of mind that there will be regulatory oversight over this pollution as soon as possible.”

“We’re glad that ADC is taking some positive steps to right its past wrongs by committing to prompt regulation, monitoring, and transparency — all of which will promote cleaner ocean waters, as well as greater consideration and safeguards for the people who rely on them,” said Pesticide Action Network organizer Devika Ghai.

“ADC’s commitments to monitor for pesticides will provide a more complete picture of the toxic runoff from large-scale agriculture on Kauaʻi’s west side,” said Surfrider Kaua‘i Chapter’s senior scientist, Dr. Carl Berg. “Surfrider began sampling for pesticides back in 2013, which alerted the government and public that the ditches were contaminated with agricultural pollution and ultimately led to more testing by state and federal agencies and now ADC.” Surfrider Kauaʻi’s Blue Water Task Force also routinely monitors estuarine and ocean waters on Kauaʻi for fecal indicating bacteria and widely distributes the results.