In February 2024, Surfrider Foundation and Nā Ki‘ai Kai (represented by Earthjustice) signed a lawsuit settlement agreement with the County of Kauaʻi and Department of Health and that protects coral reefs, the local fishing community, as well as swimmers and surfers at Kekaha Beach by ensuring clean water.
The settlement achieved 3 main goals:
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 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. Community members catch fish and crab in Kīkīaola Harbor and also surf and swim in the surrounding areas.
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 (NPDES) permit. After the ruling, the County took over operation and management of the Kīkīaola ditch from the state Agribusiness Development Corporation (ADC). 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.
To enforce the law and protect these important fishing grounds, Surfrider Foundation Kauaʻi Chapter along with Nā Kia‘i Kai 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.
On June 13, 2023, a federal judge ruled that pollution from a network of drainage ditches that discharge into the Kīkīaola Small Boat Harbor violates the federal Clean Water Act.