12 • 19 • 2019

Victory with Clean Water Litigation in Kaua’i

By Angela Howe

Surfrider Foundation Kaua'i Chapter along with other community groups were successful in our Clean Water Act litigation against the Agribusiness Development Corporation (“ADC”) in Hawaii to stop their water quality violations in West Kaua'i, threatening nearshore waters including Barking Sands and MacArthur beaches.  On December 17, 2019, Surfrider and co-plaintiffs, as represented by Earthjustice, entered into a settlement agreement to end the litigation on very favorable terms.  This came about after our win on summary judgement motion in July of this year, where the court found that ADC was violating the Act by discharging millions of gallons of waters contaminated with pesticides, sediment, and heavy metals each day from the drainage ditch system it operates on the Mānā Plain into the nearshore ocean waters without the required National Pollutant Discharge Elimination System (“NPDES”) permit. 

In lieu of going to trial for the court to decide what actions ADC must take to come into compliance with the Act, the parties resolved these issues through settlement. The agreement provides for:

  • a six-month deadline for ADC to apply for an NPDES permit to regulate, limit, and monitor pollution from the drainage ditches;

  • prompt implementation by ADC of a robust water quality monitoring program (for pesticides, toxicity, heavy metals, petroleum, bacteria, and sediment) and best-management practices to reduce contamination. The strong water quality monitoring requirements include sediment testing and sampling at key locations that we proposed; 

  • regular disclosure of water quality data on a public website;

  • a prohibition against increasing discharges or pumping from the drainage ditches unless or until ADC secures an NPDES permit allowing such; and

  • the plaintiffs' ability to go back to court if ADC does not secure a permit within two-and-a-half years.

The roughly 40 miles of drainage ditches collect polluted runoff and groundwater from thousands of acres of former sugar plantation lands that ADC now licenses to large-scale agribusinesses and various industrial operations. The ditches are unlined and eroding and discharge pesticide pollution and murky brown waters along west Kaua'i beaches. 

“ADC’s commitments to monitor for pesticides will provide a more complete picture of the toxic runoff from large-scale agriculture on Kauaʻi’s west side,” said Surfrider Kaua‘i Chapter’s senior scientist, Dr. Carl Berg. “Surfrider began sampling for pesticides back in 2013, which alerted the government and public that the ditches were contaminated with pesticides and ultimately led to more testing by state and federal agencies and now ADC.” Surfrider Kauaʻi’s Blue Water Task Force also routinely monitors estuarine and ocean waters on Kauaʻi for fecal indicating bacteria and widely distributes the results.  The hard work of our on-the-ground activists has paid off with this important litigation win in Kaua'i!