KEKAHA — Last week, Na Kia‘i Kai and Surfrider Foundation, represented by Earthjustice, filed a federal lawsuit against the County of Kaua‘i and director of the state Department of Health for failing to abide by a prior federal court order requiring a federal Clean Water Act permit to discharge polluted water into Kikiaola Harbor and the nearby ocean.
The groups seek to protect important subsistence fishing grounds, surf breaks and other recreational areas from continued contamination with pollutants, including sediment that muddies the water and suffocates the reef.
Community members catch fish and crab in Kikiaola Harbor, and also surf and swim in the surrounding areas.
“The health department is more like the do-nothing department when it comes to protecting our oceans from pollution,” said Lawrence Kapuniai, a Kekaha resident and member of Na Kia‘i Kai.
His family has been fishing and gathering along the West Kaua‘i shoreline for generations. “This ocean is our icebox, and I am not ready to give up on getting it clean so that the next generation can learn to fish at Kikiaola the same way I did. That is why we are demanding this new permit to control the pollution dumped into our ocean.”
In a 2019 victory for the community groups, the U.S. District Court for the District of Hawai‘i ruled that discharging pollution into the ocean from the Mana Plain’s plantation-era drainage-ditch system, including from the Kikiaola 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 took over operation and management of the
Kikiaola Harbor drain from the state Agribusiness Development Corporation.
The community groups alerted the county to the court order and the need for an NPDES permit, and the county contacted the state DOH for guidance on the permitting process. The DOH responded that no permit was required, contradicting the federal court’s order, according to a press release.
The county has now applied for the required NPDES permit, but the DOH has refused to acknowledge its legal duty to process the application, let alone commit to actually issuing a permit for the Kikiaola discharges.
“The Department of Health’s number-one job is supposed to be protecting human health and the environment,” said Earthjustice attorney Elena Bryant. “It makes zero sense for the department to designate Kikiaola as an impaired water body due to turbidity and then ignore the very-effective tool they have for reducing that pollution, even after a court directly ordered them to do so.”
The Kikiaola Harbor drain discharges untreated drainage waters contaminated with sediment and other pollutants into the nearshore ocean waters at Kikiaola Harbor during heavy rain events.
The DOH has designated the nearshore waters around Kikiaola Harbor as impaired for turbidity, which is caused by sediment. Water-quality testing has detected elevated levels of turbidity, diesel and enterococcus bacteria in the Kikiaola Harbor drain.
“The poisoning of our oceans is both an environmental problem and a public-health problem,” said Dr. Carl Berg, Kaua‘i resident and senior scientist for the Surfrider Foundation Kaua‘i Chapter. “Westside ditch waters must be cleaned up, and it is long overdue for the Department of Health to do its job and force polluters to stop putting our health at risk.”
The county and DOH had 21 days from last week to answer the complaint. The federal Clean Water Act requires the county to apply for an NPDES permit and minimize pollution from Kikiaola Harbor drain.
The DOH is the state agency tasked with administering the NPDES permit program. An NPDES permit to discharge into the nation’s waters is a tool to reduce water pollution.
