Community groups Nā Ki‘ai Kai and Surfrider Foundation, represented by Earthjustice, settled with the County of Kauaʻi and the Department of Health to clean up pollution from drainage ditches discharging into the ocean along West Kaua‘i, including the Kīkīaola Small Boat Harbor. In a victory for the community groups last year, a federal judge ruled that discharging pollution into the ocean from the Kīkīaola Harbor Drain violates the Clean Water Act and must be regulated under a permitting program. The settlement agreement sets permitting deadlines and includes measures to protect water quality in the meantime before permits are issued.
This lawsuit follows a 2019 ruling from the U.S. District Court for the District of Hawai‘i that discharging pollution into the ocean from the Mānā Plain’s drainage ditches, including the Kīkīaola Harbor Drain, requires a federal permit under the Clean Water Act, known as a National Pollutant Discharge Elimination System (“NPDES”) permit. After the ruling, the County of Kauaʻi took over operation and management of the Kīkīaola Harbor Drain from the state Agribusiness Development Corporation and eventually applied for a permit. The Department of Health, which is responsible for the NPDES permitting program in Hawai‘i, refused to process the application and responded that no permit was required, contradicting the court’s order.
The settlement sets deadlines for the Department of Health to issue permits for all of the Mānā Plain’s plantation-era drainage ditches, including the Kīkīaola Harbor Drain. These ditches were built to drain thriving wetland ecosystems for sugar cultivation, but today they siphon millions of gallons per day of polluted runoff from pesticide-heavy seed crops and other industrial uses into the ocean.
The settlement also requires the County of Kaua‘i to take steps to reduce pollution from the Kīkīaola Harbor Drain and regularly test the drainage waters for harmful contaminants such as petroleum products, pesticides, and bacteria. This will help to protect important subsistence fishing grounds, surf breaks, and other recreational areas along West Kauaʻi from contamination that muddies the water, suffocates the reef, and risks the health of ocean users.
“This settlement makes crystal clear that the Department of Health must immediately shift course from fighting us in court to fulfilling its duties to regulate and reduce pollution along Kaua‘i’s Mānā Plain,” said Earthjustice Senior Attorney Kylie Wager Cruz.
“We are pleased that the state and county ultimately came to the table to resolve these issues,” said Dr. Carl Berg, Kaua‘i resident and Senior Scientist for Surfrider Foundation, Kaua‘i Chapter. “These ditches have tested high for many toxic substances including petroleum, bacteria, and pesticides. The public deserves to know about this pollution and to have government commit to taking steps to address it.”
“This agreement is an important step in our years-long battle to ensure that West Kaua‘i nearshore ocean waters support healthy fisheries and are safe for our families to swim, fish, and gather. But, we must remain vigilant and make sure that the permits the Department of Health issues in the future contain strong pollution limits to protect these waters for present and future generations,” said Kawai Warren, a Kekaha resident and member of Nā Kia‘i Kai.
The settlement requires the Department of Health to provide public notice of a draft NPDES permit within a year. Community members will have the opportunity to provide input on the draft permit and request a public hearing.