Legal, Water Quality
June 14 2017

Hawaii Environmental Lawsuit Aims to Protect West Kaua’i Beaches and Targets Surf Break

by Angela Howe

Hawaiian water quality, marine life, and environmental health are prized by residents and visitors from all over the world.  However, agribusiness and related pesticides use pose a threat to these treasured resources. On June 13, 2017, Surfrider Foundation, alongside three other groups and one individual filed a complaint against the Hawaii Board of Land and Natural Resources ("BLNR") and Syngenta Hawaii, LLC, for failure to perform the necessary environmental review for a land use permit involving a parcel of land at Kekaha, Wiamea (Kona), Kaua’i.  The biotechnology company plans to spray poisonous chemicals near the ocean as part of their cultivation of GMOs (genetically modified organisms) on State land. The company’s proposed use of the land would have significant environment impacts on sensitive environmental resources, including the waterways and nearshore waters of West Kaua’i, which should trigger environmental review under Hawaii's environemntal protection laws.

Surfrider Foundation, by and through the Kaua’i Chapter, proudly filed this lawsuit alongside Plaintiff Ke Kauhulu O Mana (Ke Kauhulu), Hawaii Alliance for Progressive Action (HAPA), Kohola Leo, and resident Punohu Kekaualua III.  In addition to community members and beachgoers, these groups include Native Hawaiians and those focused on protecting species and habitat. Specifically, the lawsuit alleges the state’s failure to require an Environmental Assessment (“EA”) or an Environmental Impact Statement ("EIS"), unlawful approval of an exemption from the environmental disclosure required by law, undue reliance upon an outdated and obsolete conservation district use permit with a corresponding failure to enforce conservation district laws, and violation of the duty to protect the public trust. The Plaintiffs are concerned with the protection of Hawaii’s environment, ground waters, air, nearshore ocean, cultural resources and historic sites of West Kaua’i as public trust resources.The parcel at issue is adjacent to the shoreline that supports marine life, including Critical Habitat for the endangered Hawaiian monk seal, and spinner dolphins have also been observed offshore from Kekaha Beach. The ocean offshore from the parcel is also part of the State designated tow-in surfing area, known as Targets surf break.

Hawaii Revised Statutes ("HRS") chapter 343 requires an environmental analysis report when any action or project is proposed on State land, as the permit at issue is.  In fact, the parcel is located in a conservation district and was once intended to be park land.  There are no valid exemptions from this statutorily required environmental review requirement if the land is subject to cumulative impacts from activity in the same vicinity or from activity over time on the parcel. The plaintiffs are represented by public interest attorneys, Lance Collins and Bianca Isaka, who have successful experience using HRS 343 as a means of environmental protection in Hawaii.

On February 24, 2017, BLNR voted to issue a new Revocable Permit to Syngenta for the parcel, but the staff also noted that the company had been using a larger area of the parcel than previously permitted.  In addition to using a different size parcel, the distinct use of the parcel has changed. The original 1982 permit allowed for the growth of sugar cane with the Kekaha Sugar Company on the land; however, it has switched to a current testing ground for GMOs including the routine spraying of Restricted Use Pesticides ("RUP") chemicals.  Plaintiffs and their members are concerned about the use of RUPs and other chemical releases on the parcel, surrounding environment and the communities that live, work and play near the parcel.

Surfrider Foundation has also engaged in litigation to defend the waters of West Kauai with a Clean Water Act violation lawsuit against the Agribusiness Development Corporation.  That suit intends to address the toxic pesticides and chemicals like atrazine, chlorpyrifos, glyphosate, metolachlor, arsenic, and selenium tested in the drainage ditch system along with other pollutants. These legal efforts are focused on ensuring that the environmental health and water quality of West Kauai are protected.

The HRS 343 lawsuit will be heard in new environmental court on Kaua‘i by the Honorable Randall Valenciano. Please stay connected to Surfrider Foundation to find out more.

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