State Health Department Defies Court Order Mandating Federal Permit
For Immediate Release
February 9, 2022
Kylie Wager Cruz | Attorney | Earthjustice | (808) 599-2436 | email@example.com
HONOLULU, HI — Today, Native Hawaiian fishers, surfers, and citizen environmental watchdog groups joined forces to restore the ocean at Kekaha’s Kīkīaola Harbor. They 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.
Nā Kia‘i Kai, Surfrider Foundation, and Pesticide Action Network, represented by Earthjustice, sent a formal notice of intent to sue the County of Kauaʻi and state Health Director for failing to abide by a federal court order requiring a permit to discharge pollution at Kīkīaola Harbor.
“Unless the Health Department backs down from its refusal to issue a permit and follows the law, we’ll have to drag the State and County into court to battle over this issue all over again,” said 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.”
In a 2019 victory for the community groups, the U.S. District Court for the District of Hawai‘i ruled that discharging pollution to the ocean from a 40-mile drainage ditch system on the Mānā Plain, including one ditch outfall at Kīkīaola Harbor, requires a federal permit under the Clean Water Act, known as a National Pollutant Discharge Elimination System permit. After the ruling, the County took over operation and management of the Kīkīaola ditch from the state Agribusiness Development Corporation. The community groups alerted the County to the court order and the need for an NPDES permit, and the County contacted the state Health Department for guidance on how to begin the permitting process. The Health Department responded that no permit was required, directly contradicting the federal court’s order. ADC has applied for a permit for its portion of the drainage ditch system, but to the Community Groups’ knowledge, the County has not.
The Kīkīaola ditch discharges untreated drainage waters contaminated with sediment and pesticides into the nearshore ocean waters at Kīkīaola Harbor during heavy rain events. The Heath Department has designated the nearshore waters around Kīkīaola Harbor as impaired for turbidity, and detected the restricted use pesticides atrazine and metolachlor in the Kīkīaola ditch at levels toxic to aquatic life. Atrazine can slow fetal growth and trigger preterm births. 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.
Community members catch fish and crab in Kīkīaola Harbor and also surf and swim in the surrounding areas.
“Our families are food fishing in poisoned waters,” said Brenn Naka‘ahiki, a Kekaha resident and Nā Kia‘i Kai member. His family has been fishing and gathering along the West Kauaʻi shoreline for generations. “It’s time for the State to do its job and fix the problem, rather than play legal games.”
“Thanks to staggering seed crop production on Kauaʻi’s West Side in recent years, toxic pesticides have pervaded our soils and waters,” said Lorilani Keohokālole, Kauaʻi resident and Organizing Co-Director of Pesticide Action Network. “It’s the government’s kuleana to minimize community exposure to harm.”
“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, Kauaʻi resident and Senior Scientist for Surfrider Foundation, Kauaʻi Chapter.
Under the Clean Water Act, the County and Health Director have sixty days to come into compliance with the law, beginning with the County’s application for an NPDES permit and minimization of pollution from Kīkīaola ditch, as well as the Health Director’s commitment to process the application and issue a permit. The federal Clean Water Act requires an NPDES permit to discharge into the nation’s waters as a tool to reduce water pollution.
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