Surfrider Foundation Sends Notice of Intent to Sue for CWA Violations at Kīkīaola Harbor

In order to address the rampant pollution and violations of the Clean Water Act at Kīkīaola Harbor on the West Kaua'i coast, Surfrider Foundation, Nā Kia‘i Kai, and Pesticide Action Network, as represented by Earthjustice, sent notice of our intent to sue today if violations are not addressed in the next 60 days. The formal notice of intent to sue letter was addressed to the County of Kauaʻi and Hawaii Department of Health (“HDOH”) for failing to abide by a federal court order requiring a permit to discharge pollution at Kīkīaola Harbor.

As part of a potential plaintiff group of Native Hawaiian fishers, surfers, and citizen environmentalists, focused on restoring the ocean resources at Kekaha’s Kīkīaola Harbor, we are seeking to enforce the law and protect these important fishing grounds from a dilapidated drainage ditch system that stretches 40 miles along the West Kauaʻi coast. The Kīkīaola ditch discharges untreated drainage waters contaminated with sediment, heavy metals and pesticides into the nearshore ocean waters at Kīkīaola Harbor during heavy rain events. The HDOH has designated the nearshore waters around Kīkīaola Harbor as impaired for turbidity, under Clean Water Act 303(d), and detected the restricted use pesticides atrazine and metolachlor in the Kīkīaola ditch at toxic levels.  The U.S. Department of Health and Human Services warns that individuals should avoid swimming in or drinking from contaminated water sources in areas of high atrazine use. Other pesticides detected in the Kīkīaola ditch include bentazon, cis-propiconazole, fipronil, simazine, trans-propiconazole, and glyphosate.

This case is a follow-up to previous Surfrider litigation to address the polluting drainage ditch system on West Kaua'i. Our 2016 Clean Water Act litigation against the state agency known as the Agribusiness Development Corporation (“ADC”), was successfully settled in December 2019.  Since that time, this outfall has changed ownership from ADC to the County of Kaua'i.  The Kīkīaola Harbor Drain Outfall is part of the polluting drainage ditch system on the Mānā Plain, that requires a federal permit under the Clean Water Act, known as a National Pollutant Discharge Elimination System (“NPDES”) permit. The State of Hawai‘i Department of Health (“DOH”) controls the permitting decisions for the County of Kaua’i and has refused to issue a permit to regulate the pollution here.

“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 Dr. Carl Berg, Senior Scientist for Surfrider Foundation's Kauaʻi Chapter.  

If the Hawaii Department of Health does not come into compliance with the Clean Water Act in 60 days, through action on a NPDES permit for minimization of pollution from Kīkīaola ditch, then Surfrider Foundation, Nā Kia‘i Kai, and Pesticide Action Network will file a Clean Water Act complaint in the federal district court for Hawaii.

As stated by our Earthjustice Attorney Kylie Wager Cruz, “The government’s job here is minimizing water pollution at Kīkīaola Harbor, rather than wasting taxpayer resources re-litigating an issue that we won in court three years ago.”