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Surfrider Foundation Files Citizen Suit to Clean Up Water Pollution at Kīkīaola Harbor

On July 14, 2022, Surfrider Foundation and Nā Kia’i Kai filed a Clean Water Act lawsuit against the County of Kaua‘i and the Hawaii Department of Health (“DOH”) for discharging contaminated waters into Kīkīaola Harbor Drain without the required Clean Water Act permit.  As represented by Earthjustice, Surfrider sent a Notice of Intent to Sue on February 9, 2022 to the County and DOH for failing to abide by a prior federal court order requiring a National Pollutant Discharge Elimination System (“NPDES”) permit to discharge polluted water into Kīkīaola Harbor and the nearby ocean. The Plaintiff groups seek to protect important subsistence fishing and crabbing grounds, surf breaks, and other recreational areas from continued contamination with pollutants, including sediment that muddies the water and suffocates the reef.

The discharge waters visibly contain sediment, including from the eroding drainage ditches that lead to the outfall of the Kīkīaola Harbor Drain. Kīkīaola Ditch is part of a major Kapilimao Watershed on the west side of Kaua‘i. According to the State of Hawai‘i Water Quality Monitoring and Assessment Reports, the coastal waters along the Kapilimao Watershed are impaired for turbidity. The discharge waters also contain other pollutants, including elevated levels of enterococcus and Total Petroleum Hydrocarbons (“TPH”)-Diesel. 

“It makes zero sense for the Department to designate Kīkīaola 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,” said Earthjustice attorney Elena Bryant.

“The poisoning of our oceans is both an environmental problem and a public health problem,” said Dr. Carl Berg, Kauaʻi resident and senior scientist for Surfrider Foundation, Kauaʻi 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.”

Surfrider Foundation Kaua‘i Chapter has stood at the forefront of coastal water quality protection on the island of Kaua’i for over a decade, utilizing citizen science with Blue Water Task Force water quality testing and public notification of water quality impairment, as well as upholding the Clean Water Act through advocacy and litigation to stop water pollution at the source. The instant case is a follow-up to previous Surfrider litigation to address the polluting drainage ditch system on West Kaua'i. Surfrider’s 2016 lawsuit against 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, unlined earthen drainage ditch system on the Mānā Plain, which adds sediment and other pollutants into the waterway and to the Pacific Ocean. 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, despite litigation precedent requiring as much.

The County now has three weeks to respond to our complaint.