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Surfrider Lawsuit Settlement Achieves Clean Water Protections on West Kaua’i

Surfrider Foundation along with community group Nā Ki‘ai Kai, and represented by Earthjustice, recently signed a lawsuit settlement agreement that protects coral reefs, the local fishing community, as well as swimmers and surfers at Kekaha Beach by ensuring clean water. The groups reached a settlement with the County of Kauaʻi and Department of Health in the Kīkīaola Harbor litigation filed in February 2022 to enforce the Clean Water Act, capping a series of suits to protect west Kaua‘i coastal waters.  This clean water victory will compel clean up of pollution from drainage ditches that flow into the ocean along West Kaua‘i, including the Kīkīaola Small Boat Harbor. In June 2023, a federal judge ruled that discharging pollution into the ocean from the Kīkīaola Harbor Drain violates the Clean Water Act and must be regulated by the County. The settlement agreement addresses the remedies for the violation by setting permit deadlines, as well as interim measures to protect water quality before permits are issued.

Surfrider Foundation has taken action several times to address water quality on West Kaua’i, including through this lawsuit against the County, a previous but related suit against the state Agribusiness Development Corporation (“ADC”) and a challenge to the Kaua’i Shrimp Farm permit, all projects putting nearshore water quality and public health in danger due to dangerous polluted water. Surfrider Foundation’s resident water quality expert and Senior Scientist for the Kaua’I Chapter, Dr. Carl Berg, describes the problem of the ongoing pollution on West Kaua’i: “These ditches have tested high for many toxic substances including petroleum, bacteria, and pesticides. The public deserves to know about this pollution and to have government commit to taking steps to address it.”

Lead Earthjustice attorney on the case, Kylie Wager Cruz describes the gains of the settlement: “The settlement accomplishes three key things: First water quality testing to test for contaminants like oil, bacteria, and pesticides. “Second, the County needs to clean up its lands from pollution, from the wastewater treatment plant and the asphalt plant. And third, the Department of Health needs to issue permits to regulate this pollution in a timely manner.” This lawsuit follows a 2019 ruling in the ADC case from the U.S. District Court for the District of Hawai‘i that discharging pollution into the ocean from the Mānā Plain's drainage ditches, including the Kīkīaola Harbor Drain, requires a federal permit under the Clean Water Act, known as a National Pollutant Discharge Elimination System (“NPDES”) permit. After the ruling, the County of Kauaʻi took over operation and management of the Kīkīaola Harbor Drain from the ADC and eventually applied for a permit. The Department of Health, which is responsible for the NPDES permitting program in Hawai‘i, refused to process the County’s application and responded that no permit was required, contradicting the court’s order.

The settlement agreement sets deadlines for the Department of Health to issue permits for all of the Mānā Plain’s plantation-era drainage ditches, including the Kīkīaola Harbor Drain. These ditches were built to drain thriving wetland ecosystems for sugar cultivation, but today they siphon millions of gallons per day of polluted runoff from pesticide-heavy seed crops and other industrial uses into the ocean.

“The settlement agreement is an important step in our years-long battle to ensure that West Kaua‘i nearshore ocean waters support healthy fisheries and are safe for our families to swim, fish, and gather. But, we must remain vigilant and make sure that the permits the Department of Health issues in the future contain strong pollution limits to protect these waters for present and future generations,” said Kawai Warren, a Kekaha resident and member of Nā Kia‘i Kai.

Under the settlement agreement, the Department of Health must provide public notice of the draft permit within a year. Members of the public will have the opportunity to provide input on the draft and request a public hearing. Surfrider Foundation will monitor the implementation of settlement terms and continue to fight for clean water on West Kaua'i.