Polluted water dumped in West Kauai prompts lawsuit

The County of Kauai and state Department of Health Director Dr. Elizabeth Char are named in a federal lawsuit alleging the illegal discharging of polluted water into Kauai’s Kikiaola Harbor and the nearby ocean.

Environmental law organization Earthjustice, which is representing the community group Na Kiai Kai and the nonprofit Surfrider Foundation, on Thursday filed the lawsuit claiming the county has been violating the federal Clean Water Act by discharging drainage waters without a required permit from the Health Department.

The county has reportedly applied for the required National Pollutant Discharge Elimination System permit, but the complaint says that “DOH has notified the County that an NPDES permit is not required for discharges from the Kikiaola Harbor Drain, a position that directly contradicts this Court’s prior order that an NPDES permit is required for discharges from this same outfall.”

Na Kiai Kai and the Surf­rider Foundation are asking the court to order the county, which owns and operates the drain, to promptly obtain the permit and for DOH to process the permit application.

The groups are also seeking civil penalties for county violations of the Clean Water Act.

“An NPDES permit would impose limits on the levels of different pollutants that the County can discharge into the ocean. Those permit limits would ensure that the discharges will not imperil water quality or public health,” said Elena Bryant, an attorney for Earthjustice, in a statement. “Given that DOH has already determined that the receiving waters are impaired for turbidity, the permit would need to prohibit additions of suspended solids that are fouling the nearshore ocean waters and smothering the reefs.”

The NPDES regulates the discharge of pollutants from drainage ditches into U.S. waters, and the Clean Water Act prohibits the discharge of any pollutant except when specifically authorized.

The unpermitted discharge allegedly began in March 2021, although likely earlier, according to the complaint. It said the discharged water “has had detrimental effects on, and poses an ongoing threat to, the water quality and health of West Kauai’s marine waters and ecosystems.”

Earthjustice in a news release said the groups it is representing want to protect nearby subsistence fishing grounds, surf breaks and other recreational areas from continued contamination from pollutants in the discharged water.

The pollutants include enterococci bacteria, diesel fuel and sediment, which can suffocate reefs and muddy the water.

Ocean users said requiring the permits would help residents who use the affected waters now and in the future.

“This ocean is our icebox, and I am not ready to give up on getting it clean so that the next generation can learn to fish at Kikiaola, the same way I did. That is why we are demanding this new permit to control the pollution dumped into our ocean,” said Kekaha resident and Na Kiai Kai member Lawrence Kapuniai in a statement.

Na Kiai Kai comprises West Kauai residents who include Native Hawaiian fishers and cultural practitioners.

The lawsuit said the group’s members have become increasingly concerned about the con­ta­minants in the water and in the fish and shellfish they gather to feed their families. They have avoided the harbor area in recent years but would resume fishing there if the water quality improves.

A 2019 U.S. District Court order required a permit to discharge the water in compliance with the Clean Water Act, but that order has not been followed, the lawsuit said.

The state Agribusiness Development Corp. managed the Kikiaola drain prior to the 2019 order, but afterward the county took over operations.

The Kikiaola Harbor drain is along Kaumualii Highway near Kekaha town. It is opened during heavy rainfall to prevent flooding in the town. The drain is unlined and eroding, and water discharges enter the boat harbor and ocean untreated, according to the lawsuit.

DOH declined to comment on the lawsuit, but a statement from Wade Lord, Kauai County’s capital improvements program manager, said the county has applied for all the permits it needs.

“The County of Kauai takes seriously any need to comply with all relevant environmental regulations. When first contacted by Earthjustice in March 2021 about the need for proper stormwater management and approvals, we immediately were responsive and contacted the State Department of Health (DOH) on what next steps we need to take under law,” Lord said.

“Notwithstanding DOH’s initial determination on what environmental approvals are necessary, we remain committed to fulfilling all legally required actions. As determinations may potentially change, we will immediately move to complete those required actions under DOH direction. The County has applied for all necessary permits, to open the outfall in emergency situations to prevent flooding in Kekaha town. We are currently waiting for state approval.”