State sued for alleged violations of Clean Water Act

KEKAHA — Hawaii’s Department of Health and Agribusiness Development Corporation are both facing a lawsuit for allegedly polluting Kauai’s Westside waters.

Earthjustice, an environmental law organization, notified ADC in August of its intent to sue in May when a few community organizations discovered ADC didn’t renew its National Pollution Discharge Elimination System (NPDES) permit last August.

Representatives from the State Department of Agriculture said they wouldn’t be commenting on the lawsuit at this point.

The Department of Health did not comment by press time.

On behalf of those community groups — Na Kia‘i Kai, Surfrider Foundation and Pesticide Action Network — Earthjustice has followed through on the letter of intent and announced the lawsuits on Monday.

In a release sent to The Garden Island, Earthjustice said the organization has sued ADC for violating the Clean Water Act by allegedly polluting waters along Kauai’s west side.

The organization also announced suing both ADC and the state DOH for “abdicating their constitutional duties to conserve and protect these water resources,” according to the release.

“It’s bad enough that ADC thinks it’s above the law. It’s even worse that the Hawaii Department of Health, the agency charged with enforcing the law, is giving ADC a pass, leaving communities and visitors at risk,” said Earthjustice attorney Kylie Wager.

The Clean Water Act prohibits discharge of pollutants into the nation’s waters without that permit. In May, James Nakatani, executive director of ADC, said the entity didn’t renew its NPDES permit because it’s 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 told TGI in May, “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 in May that 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 in May. “We continue to do whatever monitoring we were doing in the past.”

Earthjustice alleges ADC isn’t sampling or reporting any sample results on the 40 miles of ditch system the organization manages on the Mana Plain and the civil suit for violations of the federal Clean Water Act, including waters in the canal system, two pumping stations, and seven drainage ditch out falls in West Kauai.

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 Earthjustice release said.

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

In its complaint, according to the Earthjustice release, the community groups alleged federal Clean Water Act violations against ADC, and violation of the public trust under the Hawaii Constitution against both ADC and the Department of Health. ADC must respond to the community groups’ complaint within 21 days.

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

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