LIHU‘E — A federal judge ruled this week that Kaua‘i County and Hawai‘i Department of Health (DOH) violated federal law by releasing polluted water into the Kikiaola Small Boat Harbor without proper permitting.
Chief U.S. District Judge Derrick Watson ruled in favor of West Kaua‘i community group Na Ki‘ai Kai and environmental organization Surfrider Foundation on Tuesday, agreeing that under the federal Clean Water Act, dumping via the Kikiaola Harbor Drain requires what’s known as a National Pollutant Discharge Elimination System (NPDES) permit, which Kaua‘i County did not have.
“This win sends a clear message to DOH that it’s time to do your job,” said Earthjustice attorney Elena Bryant, who represented Na Ki‘ai Kai and Surfrider Foundation. “As the agency with the kuleana to protect public health and the environment, DOH can no longer turn a blind eye to the decades of pollution that’s been occurring in the West Kaua‘i community.”
Containing sediment, enterococci bacteria, diesel, oil, grease and excessive nutrients, polluted water travels through a series of drainage ditches before reaching the Kikiaola Harbor Drain in Kekaha, where it dissipates into the small boat harbor and neighboring waters. And with many nearby Kaua‘i residents relying on subsistence fishing to feed their families, impacts of marine pollution are greatly intensified.
“As hunters and gatherers and fishermen, a healthy reef, healthy fish, healthy water, healthy people,” said Kawai Warren, leader of Na Kia‘i Kai. “That’s the bottom line, because when I fish, I take care of the elderly people, I take care of the young kids. But once we started finding out about the potential contaminants going into the reef … I was really hesitant to go out and gather for the elderly and the young.”
This is not the first instance in which concerns over such dumping has reached federal court. In January 2018, Na Ki‘ai Kai and Surfrider Foundation, alongside nonprofit Pesticide Action Network, sued the state Agribusiness Development Corporation, then-owner of the drain, for similar unpermitted pollution.
The groups won their case in 2019, and following the ruling, Kaua‘i County took over operation and management of the drain.
After community groups alerted the county to the court order, the county subsequently applied for an NPDES permit. However, the Department of Health refused to process the county’s application, arguing that no permit was required, directly contradicting the court’s order.
“I think it’s fair to say that the county has done everything that it could to come into compliance,” Bryant said.
Facing continued unpermitted dumping, Na Ki‘ai Kai and Surfrider Foundation again filed a lawsuit in 2022, this time against both the county and Department of Health for failing to abide by the court’s 2019 order.
During the suit, Kaua‘i County agreed to not dispute that unpermitted pollution from the drain was in violation of the Clean Water Act. Still, the Department of Health continued to posit that no NPDES permit was required.
The department’s position largely relied on a claim that maintained the drain’s pollutants do not come from a “point source,” or identifiable source, meaning such dumping would not require NPDES permitting. Judge Watson succinctly rejected the claim, noting that ditches — which feed the drain in question — are explicitly defined as a point source in the Clean Water Act.
“Factually, DOH does not properly dispute any of the factual statements or evidence provided by the Plaintiffs, given that DOH does not present any evidence in support of its purported disputes,” the court order reads.
The case now moves before a magistrate judge, who will determine how to address the county’s illegal discharges from the drain, such as with a court order requiring the Department of Health to promptly issue an NPDES permit, as well as potential civil penalties for noncompliance.
“For our clients, our position is for DOH to expeditiously process an NPDES permit for best management practices to be put in place for testing and notice,” Bryant said.
“The West Kaua‘i community deserves better, and it’s far past time for DOH to step up and regulate to protect this community’s health and well-being. And I think that’s what this order requires — is for the Department of Health to really step up and do their job.”
Kaua‘i County and Hawai‘i Department of Health officials could not be reached for comment.
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Jackson Healy, reporter, can be reached at 808-647-4966 or jhealy@thegardenisland.com.
