Two groups representing West Kauai ocean users’
interests claimed another small victory in a 2022 federal civil case aimed at halting the discharge of polluted water draining from a system of sugar plantation-era ditches into Kikiaola Small Boat Harbor.
Chief U.S. District Judge Derrick Watson found earlier this month that the discharge violates the federal Clean Water Act, ruling in favor of community group Na Kiai Kai and nonprofit Surfrider Foundation, and against the County of Kauai and the state Department of Health director.
The judge’s June 13 order says the plaintiffs’ motion for summary judgment hinged on just one legal claim, namely that the county and the Health Department violated the Clean Water Act by discharging polluted water without a National Pollutant Discharge Elimination permit.
The order covers the issue of liability, and the case now moves into the remedy phase and how to address the county’s illegal discharges. According to Earthjustice, which represents the plaintiffs, a court order requiring the Health Department to issue a permit is a tool to reduce water pollution, limit contamination
levels and require water testing.
Watson said both the county and the Health Department did not dispute any of the facts presented, except on one issue. The Health Department “opposes the relief sought,
essentially arguing that a NPDES permit is unnecessary for the discharges alleged here.”
The pollutants include diesel, enterococci bacteria and sediment from a system of eroding ditches — unlined earthen channels and canals — that connect to the Kikiaola Harbor Drain system near Kekaha town.
They muddy the waters, particularly during heavy rain, and harm the environment, suffocating reefs. It hurts those who fish and crab in the harbor and who surf, boat and swim in the surrounding waters along the West Kauai coastline, the groups say.
To prevent flooding in Kekaha town, the Kikiaola Harbor Drain is opened by breaching one or more earthen berms that block drainage waters from entering the harbor, the complaint says. The unpermitted discharge began in March 2021 and likely earlier.
It is the second lawsuit filed by Earthjustice on behalf of the plaintiffs. The
environmental law organization said in a news release that “it is the latest in a series of victories that community groups have secured to protect important subsistence fishing grounds, surf breaks and other recreational areas along West Kauai.”
Despite a 2019 federal court ruling that an NPDES permit is required, the county and the Health Department failed to follow the order. The Health Department is responsible for issuing the NPDES permits.
Kekaha resident and Na Kiai Kai member Lawrence Kapuniai said in a written statement, “We hope the Department of Health gets the message now and starts taking the necessary steps to clean up ocean pollution along the Mana Plain. We need clean ocean waters and healthy reefs so that we can continue to pass down our fishing traditions and feed our families.”
“Pollution from drainage ditches along the Mana Plain is putting our health at risk,” said Dr. Carl Berg, Kauai resident and senior scientist for Surfrider Foundation, Kauai Chapter, said in a written statement. “It’s time for the Department of Health to step up and regulate instead of continuing to fight us in court.”
The Health Department responded to questions by issuing this statement: “The DOH declines to comment at this time until the Plaintiffs’ remedy is finally determined. The DOH is studying the ruling and intends to expeditiously discuss and agree on an appropriate remedy with Plaintiffs’ counsel.”
Kauai County also declined to comment, saying it does not comment on pending litigation.
Following the 2001 closure of the Kekaha Sugar Co.,
the governor in 2003 transferred management of the 12,500 acres of former agricultural lands to the state Agribusiness Development Corp., which managed the Kikiaola drain before the 2019 order. After the order, the county took over
operations.
