LIHU‘E — Earthjustice announced on Wednesday that Na Ki‘ai Kai and the Surfrider Foundation, both groups represented by Earthjustice, settled a lawsuit with the County of Kaua‘i and the state’s Department of Health to clean pollution from drainage ditches discharging into the ocean along West Kaua‘i, including the Kikiaola Small Boat Harbor.
In a press release from Earthjustice, a federal judge ruled that discharging pollution into the ocean from the Kikiaola Harbor drain violates the Clean Water Act and must be regulated under a permitting program.
The settlement sets deadlines for the DOH to issue permits for all of the Mana Plain’s plantation-era drainage ditches, including the Kikiaola Harbor Drain. According to the release, the ditches were built to drain thriving wetland ecosystems for sugar cultivation. Today, they siphon millions of gallons daily of polluted runoff from seed crops and other industrial uses into the ocean.
“We are pleased that the state and county ultimately came to the table to resolve these issues,” said Dr. Carl Berg, a Kaua‘i resident and Senior Scientist for the 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.”
The settlement also requires the county to take steps to reduce pollution from the Kikiaola Harbor Drain,and regularly test the drainage waters for 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 Kaua‘i from contamination that muddies the water, suffocates the reef and risks the health of ocean users, Earthjustice said.
The settlement requires the DOH to provide public notice of a draft National Pollutant Discharge Elimination System (referred to as NPDES) permit within a year. Community members will have the opportunity to provide input on the draft permit and request a public hearing.
“This agreement is an important step in our yearslong battle to ensure that West Kaua‘i nearshore ocean waters support healthy fisheries, and are safe for our families to swim, fish and gather,” said Kawai Warren, a Kekaha resident, and a member of Na Kia‘i Kai.
“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.”
The 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 Mana Plain’s drainage ditches, including the Kikiaola Harbor Drain, requires a federal permit under the Clean Water Act, known as the NPDES permit.
Following the court ruling, the county took over operation and management of the Kikiaola Harbor Drain from the state Agribusiness Development Corporation, and eventually applied for a permit.
The Department of Health that is responsible for the NPDES permitting program in Hawai‘i refused to process the application. The DOH responded that no permit was required, contradicting the court’s order.
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