State, Kauai ignoring court order, prompting pledge to file new suit

When a U.S. District Court judge in 2019 ruled against the dumping of polluted water into the ocean on the west coast of Kauai, the community groups that brought the legal action thought the government would follow through on the order.

But three years later Kauai County has yet to apply for a National Pollutant Discharge Elimination System permit for discharge pollution at Kikiaola Harbor in Kekaha.

On Wednesday, the same groups formally notified the county and the state Department of Health that they plan to go to court over the issue once again.

“We thought this was over. Unfortunately, it turned out to be a Frankenstein of an issue,” said Kylie Wager Cruz, attorney with Earthjustice, which represents Na Kia‘i Kai, Pesticide Action Network and the Surfrider Foundation.

“The Health Department knows full well that the court has already spoken and that these waters must be cleaned up. It should roll up its sleeves and start regulating,” said Carl Berg, senior scientist for the Surfrider Foundation, Kauai Chapter, in a release.

The groups went to court in 2016 to force the Agribusiness Development Corp. to stop ocean discharges from 40 miles of its ditches that collect polluted runoff and groundwater from thousands of acres of former plantation lands licensed to large-scale agribusinesses and industrial operations.

The ditch system is contaminated with sediment and pesticides and includes an outfall at Kikiaola Harbor, where community members not only catch fish and crab, they surf and swim in nearby areas. But the untreated drainage waters end up in the ocean anyway during heavy rain storms.

The Health Department designated the nearshore waters around the harbor as impaired after detecting atrazine and metolachlor in the Kikiaola ditch at levels toxic to aquatic life. The U.S. Department of Health and Human Services warns against swimming in or drinking from contaminated water sources in areas of high atrazine use.

After the court ruled that the discharges require a federal permit under the Clean Water Act — commonly called an NPDES permit — the county took over operation of the Kikiaola ditch. But while the Agribusiness Development Corp has applied for a permit for its portion of the ditch system, the county has not, apparently on the advice of the Health Department.

Wager Cruz said she is dumbfounded as to why no attempt was made to apply for the federal permit.

“The law is so clear,” she said. “The court has spoken. No one has appealed the ruling. It’s legally binding. We don’t want to go back to court to fight again but we will if we have to.”

Asked to respond, a state health official said the department is working toward a solution that will protect public health and the environment.

“DOH takes pollution of Hawaii’s waters and environment seriously,” said Kathleen Ho, deputy director of environmental health. She added that new state administrative rules developed in 2021 “affect the regulatory framework the department anticipates applying to protect Kikiaola Harbor.”

In a letter attached to the suit, Kauai County’s Wade Lord said that when the county reached out to the state about applying for an NPDES permit, the state replied that a different compliance strategy applies to Kikiaola.

Lord said the county was directed to inquire with the U.S. Army Corps of Engineers to determine whether a Department of the Army permit is required and whether it would trigger the need to obtain a Section 401 Water Quality Certification from the state.

The Corps of Engineers is now gathering additional information from the landowner of the outfall, he said.

Wager Cruz said that under the Clean Water Act, the county and health director has 60 days to comply with the law, beginning with the county applying for an NPDES permit, or the lawsuit will go forward.