Possible Clean Water Act violations

KEKAHA — Hawaii’s Agribusiness Development Corporation could be facing a lawsuit for allegedly illegally polluting the ocean on Kauai’s westside.

That’s because several community organizations have discovered that the state organization didn’t renew their National Pollution Discharge Elimination System (NPDES) permit last August.

The Clean Water Act prohibits discharge of pollutants into the nation’s waters without that permit.

James Nakatani, executive director of ADC, said the entity didn’t renew their NPDES permit because they’re working with the Department of Health Clean Water Branch to establish a memorandum of understanding (MOU) on monitoring water quality instead.

“If we had our way, we’d love to have the (NPDES) permit rather than try to write out an MOU because that’s open to challenge,” Nakatani said, “but we’re trying to work with the health department to satisfy what they’re wanting us to do.”

The change in paperwork was sparked because ADC could be identified as an agricultural organization instead of an industrial organization. Nakatani said DOH and ADC are working to clear up the details and that hammering out the MOU is a long process, but both entities are working toward an agreement.

“We’re trying to see how to resolve the situation with the health department, but the truth is nothing has changed,” Nakatani said. “We continue to do whatever monitoring we were doing in the past.”

According to a news release, sent to The Garden Island Newspaper Tuesday, Earthjustice has sent notice of intent to sue to the state agency on Tuesday on behalf of community groups Na Kia’i Kai, Surfrider Foundation, and Pesticide Action Network.

“The agency (ADC) turned its back on communities that are already burdened by the pesticides drifting into their neighborhoods from the chemical companies’ fields,” said Earthjustice attorney Kylie Wagner, who is heading the case. “ADC now won’t sample or report what’s going on in the water in its ditch system.”

ADC, which is charged with promoting diversified agriculture, operates a 40-mile ditch system on the Mana Plain.

According to the letter of intent to bring civil suit for violations of the federal Clean Water Act, that includes, but isn’t limited to the canal system, two pumping stations, and seven drainage ditch outfalls in West Kauai.

That’s where it leases thousands of acres to seed companies. The drainage ditches flow through the seed crop fields and then into the ocean near Kekaha and Waimea.

In Tuesday’s release, Earthjustice alleges that the ADC and now operates the ditches as “an open sewer, with no treatment or monitoring, carrying chemicals and other pollution through the towns and into the ocean along the west side.”

“We don’t have open sewers,” Nakatani countered. “Nothing has changed, whether we have a permit or not.”

According to the letter of intent, if Earthjustice decides to proceed, the next step would be to file civil action against ADC. The goal of the lawsuit is to regain regulatory oversight and monitoring over pollution from the ditch system unless ADC “either stops polluting or obtains the required permits,” the release said. The earliest the organization could file suit is in early July.

Nakatani said sorting out the paperwork nightmare is “a work in progress” and they’re “trying to figure it out.”

“We’re not that crazy, to go around and just pollute the ocean — we all cherish that,” Nakatani said. “It’s not like we had a choice going down this road, and we’re trying to figure it out.”

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Jessica Else, environmental reporter, can be reached at 245-0452 or jelse@thegardenisland.com.

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