By: Angela Howe, Senior Legal Director, Surfrider Foundation
"The Surfrider Foundation Kauaʻi Chapter has long been dedicated to addressing the many sources of pollution that impact the islandʻs nearshore waters,” says Surfrider Hawaii Regional Manager Lauren Blickley. “It’s not an easy task and much of their work goes unnoticed. But their vigilance and expertise in water quality issues has helped secure cleaner, safer waters for the island community."
The Kauaʻi Chapter of the Surfrider Foundation has a strong history of using science, policy and law to fight for clean water on this beautiful Hawaiian island. Partnering with other community groups and attorney Bianca Isaki, as well as Kylie Wager Cruz from Earthjustice, Surfrider Kauaʻi has made a meaningful impact in safeguarding clean water in west Kauaʻi and fully enforcing the protections of the Clean Water Act. The following is a summary of the most recent litigation efforts to protect the island’s entire west coast shoreline through challenges to three different but related sources of point source pollution.
Agribusiness Development Corporation (“ADC”) Litigation
In July 2016, Surfrider Foundation sued the Agribusiness Development Corporation (“ADC”) for failure to renew its National Pollution Discharge Elimination System (“NPDES”) permit and the related unregulated harmful discharge of pesticide contamination and other pollutants into the nearshore ocean waters of west Kaua‘i, including Barking Sands Beach. The Kauaʻi Chapter was aware of this issue because chapter volunteers were testing for pesticides and reported the presence of pesticide pollution in the ditch system to the Hawaii Department of Health (“DOH”). DOH dismissed these initial findings, but Surfrider Hawaiʻi, led by the Oʻahu Chapter, undertook a more comprehensive study that confirmed the earlier results. DOH then hired the U.S. Geologic Survey to do a professional study, which demonstrated the same pesticide pollution.
ADC is a state agency that operates a drainage ditch system that funnels millions of gallons of polluted water into the Pacific Ocean near Kekaha and Waimea. The ditch system at issue for NPDES regulation is located on around 12,000 acres of land - West Kauaʻi’s Mānā Plain - and consists of forty miles of earthen, unlined canals and ditches, two pumping stations at Kawai‘ele and Nohili, and six outfalls where water discharges from the system. This century-old drainage system, originally built for a sugar mill operated by the Kekaha Sugar Company, has been controlled and managed by ADC since 2001. While there was once NPDES permitting in order to control pollution here, ADC inexplicably abandoned the permitting process in 2015. Surfrider Foundation, alongside Pesticide Action Network and environmental justice group Nā Kiaʻi Kai, represented by Earthjustice, challenged the lack of NPDES permitting in violation of the Clean Water Act.
To evade liability, ADC alleged that the federal Water Transfer Rule exempted the drainage ditch system, which has remained structurally unchanged, from the Clean Water Act. Hawaii federal District Court Judge Derrick K. Watson ruled the Water Transfer Rule does not apply to negate liability under the Clean Water Act because pollutants, including restricted use pesticides, are newly put into the water as it flows through the unlined ditch system. “The transfers at issue here are not exempt under the Water Transfer Rule because pollutants are added during the transfer,” states Judge Watson’s July 9, 2019 ruling on summary judgment with respect to the Clean Water Act.
After the success on summary judgment ruling for Clean Water Act liability and the necessity of a NPDES permit, the remedy phase of Surfrider’s lawsuit against ADC (i.e., how to fix ADC’s Clean Water Act violations) was successfully settled in December 2019; however, over three years later, DOH has yet to issue even a draft NPDES permit for ADC’s ditch system. In the interim, ADC has been required under the settlement to do extensive water quality sampling and testing. The Plaintiff coalition is still monitoring the permitting process and required water quality monitoring by ADC.
Kīkīaʻola Harbor/County of Kauaʻi Litigation
More recently, Surfrider Foundation and our community group allies filed suit against the County of Kauaʻi for the part of the Mānā Plain drainage ditch system that the County now operates—the Kīkīaʻola Harbor Drain—which feeds into Kekaha’s Kīkīaʻola Small Boat Harbor. The County assumed responsibility for discharges from the Kīkīaʻola Harbor Drain after Surfrider’s successful lawsuit establishing ADC’s liability for discharges from the entire ditch system. DOH then advised the County that a NPDES permit was not required for the Kīkīaʻola Harbor Drain, despite federal District Court Judge Watson’s ruling establishing Clean Water Act liability for all of the system’s discharges in the ADC case.
The Kīkīaʻola Harbor is one of the six ocean outfall systems regulated by the ADC before 2020, when ADC transferred one of the outfall systems to the County of Kauaʻi. The Mānā Plain Drainage Ditch System includes, but is not limited to, forty miles of earthen, unlined drainage canals and ditches, several storage reservoirs, two pumping stations (the Kawai‘ele Pumping Station and the Nohili Pumping Station), and six ocean outfalls. The six outfalls are Kawai‘ele Outfall, Nohili Outfall, Cox Drain, First Ditch, Second Ditch, and the Kīkīaʻola Harbor Drain – the last of which is now owned and operated by the County and is the subject of the current ongoing litigation.
The County’s pollution from the Kīkīaʻola Harbor Drain has posed ongoing detrimental effects to the water quality and health of West Kauaʻi’s marine waters and ecosystems, particularly the coastal waters along the Kapilimao Watershed, including at Kīkīaʻola Small Boat Harbor. The discharge waters visibly contain sediment, including from the eroding drainage ditches that lead to the outfall of the Kīkīaʻola Harbor Drain, and enterococcus bacteria and diesel have been also known pollutants in this waterway. Land uses on the portion of the Mānā Plain that drains to Kīkīaʻola Harbor include, but are not limited to, genetically engineered seed crop operations, pasture lands, a gravel and asphalt plant, and the Waimea Wastewater Treatment Plant.
Despite the fact that liability for Clean Water Act permitting was settled in the ADC ruling in July 2019 and DOH has failed to intervene or appeal despite their knowledge of this ruling, the state agency maintains that no NPDES permit is required for this drainage system. Due to the obstinate actions of DOH, community groups were left with no recourse but to file a complaint in federal court against the County and Hawaii Department of Health in July of 2022. The litigation is currently active and intended to ensure that DOH promptly issues NPDES permits for all of the illegal discharges established in the ADC case summary judgment ruling.
Shrimp Farm Permit Challenge
The current campaign challenging shrimp farm pollution is one of the most pressing efforts to defend water quality, public health, and a clean environment in the coastal region of the Mānā Plain. There are concerns that operations of Sunrise Capital Shrimp Farm (also known as “Kauaʻi Shrimp”) lead to the flow of dead fish and pollution through ditches and canals to the ocean where swimmers and surfers are impacted by the impaired waters. Surfrider Foundation has issued a challenge to the Sunrise Shrimp Farm’s renewal of their National Pollutant Discharge Elimination System permit through extensive comments and a call for a public hearing on the matter.
The Kauaʻi Chapter is challenging the second draft permit renewal for the shrimp farm operations due to the public health and safety concerns, including a terrible smell emanating into the area surrounding the shrimp farm. Similar to the first draft, which Surfrider commented on in 2021, this draft permit from Hawaii Department of Health (“DOH”) would allow the shrimp farm to increase their wastewater discharge by millions of gallons per day along the Kekaha coastline and the stretch of beach that runs along the Pacific Missile Range Facility and Barking Sands Beach. The permit renewal includes an increase in allowable discharge from 5 million gallons per day up to 20 million gallons. This expansion would lead to greater discharges of pollutants and vibrio bacteria that thrive in ocean and brackish water and can be very harmful to humans, fish and coral. The DOH has stated that it does not have water quality testing criteria for vibrio bacteria and refuses to regulate it in the draft permit. The proposed permit also lacks meaningful measures to prevent fish kill incidents. This particular shrimp farm has been associated with a number of fish kill incidents over the past several years, yet there have been little to no repercussions for the company by DOH and EPA. While there are permit notification and cleanup requirements for fish kills, the permit is sorely lacking in prevention measures. In the comment letter, Surfrider Foundation also points out that unlined sedimentation canals allow pollution to seep into groundwater and ocean waters in nearshore areas. Finally, the proposed permit lacks sufficient ocean pollution monitoring and timely environmental assessment of the project since the last environmental report was completed in 1996.
The current Sunrise Shrimp Farm permit draft has now been challenged by the Chapter through extensive comments and a call for public hearing. Surfrider Foundation and our community partners eagerly await a DOH response to our call for a public hearing and the opportunity to further advocate for critical water quality safeguards. Surfrider thinks this is the least the state can do given the history of the site and the extensive length of time (nearly 27 years) since the original environmental impact statement was issued on the project.
These three legal challenges span over seven active years of Surfrider Foundation Kauaʻi Chapter’s work to protect the water quality of coastal waters off the western side of the island. Regulation under the Clean Water Act is designed to limit the pollutant loads that are allowed to enter waters of the United States. The valuable Pacific Ocean waters off of this coastal stretch are not only utilized by recreationalists, including surfers and fisherman alike, but also are home to varied marine life and precious water resources. The Kauaʻi Chapter of the Surfrider Foundation has brought forth legal challenges to ensure that public health and valuable coastal resources are protected for all residents and visitors of west Kauaʻi.