Judge: Ocean illegally polluted By Jessica Else The Garden Island

KEKAHA — The state Agribusiness Development Corporation has been illegally polluting Kauai’s ocean waters since 2015, according to a Tuesday ruling by U.S. District Judge Derrick Watson.

The ruling, delivered in a federal lawsuit brought by three community groups against ADC for violating conditions of the Clean Water Act, requires ADC to obtain and comply with a National Pollutant Discharge Elimination System permit to monitor and limit pollution levels from the drainage ditches.

The agency had a permit for pollution from the drainage ditches until August 2015, when it withdrew its permit renewal application.

ADC did not respond to request for comment on the ruling by press time on Wednesday.

According to the case documents, ADC claims some of their sublicensees’ activities may be point sources of pollution requiring NPDES permits, but the system itself is not a point source of pollution to the ocean.

The state disagreed.

“There is no question that ADC discharges polluted water into the near-shore waters of the Pacific Ocean off Kauai’s western coast on a daily basis via the Mana Plain drainage ditch system, and that it does so without an NPDES permit,” Watson wrote in the summary judgment.

In its initial complaint, Earthjustice, a nonprofit organization dedicated to litigating environmental issues, representing three community groups in the case — Na Kia‘i Kai, Surfrider Foundation, and Pesticide Action Network — listed pollutants in the drainage water including: pesticides like atrazine, bentazon, chlorpyrifos, and the herbicide simazine; nitrate-nitrite, phosphorus, suspended solids, phenols, beryllium, thallium and the metals arsenic, barium, chromium, copper, lead, mercury, nickel, silver and zinc.

The documents continue to point out the water discharged contains pesticides and agriculture chemicals, byproducts of agricultural chemicals, and heavy metals, as well as sediment from the unlined canals through which it passes.

Concluding the case, Watson said that “ADC’s compliance with NPDES permitting requirements will generate more data gathering and facilitate additional public scrutiny of its water discharges.”

That means monitoring and reporting would be back to what it was in 2015.

The issue is related to about 40 miles of drainage ditches that stretch throughout the Mana Plain on Kauai’s west coast. The area is naturally a wetland that has been drained for agricultural production.

Formerly sugar plantation lands, ADC now leases the land to agribusiness companies and the ditches collecting runoff from those operations lead to pollution in waters along Barking Sands and MacArthur beaches in six different places, according to the ruling.

Members of the groups Earthjustice is representing have personal connections to the place, like Na Kia‘i Kai member Bren Naka‘ahiki.

“My family has been fishing and gathering along the West Kauai shoreline for generations,” Naka‘ahiki said. “After years of the Agribusiness Development Corporation turning its back on our community and avoiding protections designed to keep us safe, we can now breathe easier knowing the law is on our side.”

Surfrider Foundation member Gordon LaBedz said their concern related to water quality in the surf on the Westside.

“The ditches empty directly into the Kinikini surf break,” LaBedz said. “Test after test shows the ditches contain pollutants that are harmful to people and our precious ocean ecosystem. We hope the Agribusiness Development Corporation will take the court’s order seriously and immediately begin the process of bringing the ditches into compliance with the Clean Water Act.”

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

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