Groups put county, state on notice for Westside ditch draining

KEKAHA — Environmental watchdog groups have put the County of Kaua‘i on notice for seemingly violating federal permit requirements when it comes to discharging stormwater containing pollutants into Westside waters.

Back in 2019, the U.S. District Court for the District of Hawai‘i ruled that discharging pollution into the ocean from a 40-mile drainage ditch system on the Mana Plain, which includes the ditch outfall at Kikiaola Harbor, requires a National Pollutant Discharge Elimination Systems (NPDES) permit under the Clean Water Act. Following this, the county took over operations and management of this ditch from the state’s Agribusiness Development Corporation.

In 2021, Earthjustice — which is representing Na Kia‘i Kai, Surfrider Foundation and Pesticide Action Network North America — reached out to county officials for an update on its permitting only to discover that the state Department of Health, in turn, informed the county that no permit was necessary.

Wednesday, the group sent out a notice of intent to bring a civil suit against the county and DOH.

“Unless the Health Department backs down from its refusal to issue a permit and follows the law, we’ll have to drag the State and County into court to battle over this issue all over again,” Earthjustice attorney Kylie Wager Cruz said. “The government’s job here is minimizing water pollution at Kikiaola Harbor, rather than wasting taxpayer resources re-litigating an issue that we won in court three years ago.”

County of Kaua‘i Capital Improvements Program Manager Wade Lord said that when Earthjustice first contacted officials back in March 2021 about proper stormwater management, “We immediately were responsive and contacted the state Department of Health (DOH) on what next steps we need to take under law.”

In a July 9, 2021 letter from Clean Water Branch Chief Alec Wong provided by the County, the DOH informed officials that an NPDES permit “is not required to open this ditch.”

“Notwithstanding DOH’s initial determination on what environmental approvals are necessary, we remain committed to fulfilling all legally required actions,” Lord said. “As determinations may potentially change, we will immediately move to complete those required actions under DOH direction.”

The use of drainage ditches is sometimes used during rain events to avoid potential flooding.

“We’re stuck with a situation where during heavy rainfalls, which are becoming more and more frequent with climate change, all the pollution from the surrounding lands around the Kikiaola outfall flow straight into the ocean without any regulation,” Wager Cruz said.

In the past, pesticides, as well as other harmful chemicals, have been detected in the ditch and surrounding areas that are used for surfing and fishing.

Swimming in or consuming water with untreated drainage can be harmful.

“The Health Department knows full well that the court has already spoken and that these waters must be cleaned up,” Senior Scientist for Surfrider Foundation’s Kaua‘i Chapter Dr. Carl Berg said. “It should roll up its sleeves and start regulating.”

This is just the latest bout of Westside ditch pollution.

Earlier this week, the DOH fined Maui Asphalt X-IV, LLC., $107,500 for discharging pollutants into state waters without a permit or pollution-control methods on county property.

The DOH Clean Water Branch received complaints that the facility was polluting state water, and after an inspection discovered aggregate, dirt, fuel and oil pollutants were discharged on 43 occasions between 2015 and 2021.

Two drainage ditches border the west and east sides of the facility, and a third drainage ditch bisects the facility. The drainage ditches are part of the Mana Plain Canal System and drain into the ocean.

In 2021, the county’s Department of Public Works was fined $36,500 for violating water-pollution laws on three different occasions for a Waimea project conducted over a seven-month period in 2020.