Earthjustice, a U.S. nonprofit environmental law firm, notified Hawaii’s Agribusiness Development Corporation on Tuesday that it will sue the agency for allegedly allowing pesticides and chemicals to contaminate a 40-mile-long drainage ditch system on the Mana Plain of Kauai’s west side. 

The ADC, a division of the Department of Agriculture, leases thousands of acres there to seed companies. Earthjustice, in alliance with several community groups, said that the genetically-engineered crops grown on the lands on the west side of Kauai require intensive applications of chemicals and pesticides that run off into drainage ditches, flowing through communities and into the ocean near the Mana Plain.

For decades, the drainage system used for this land was monitored by the Department of Health under a Clean Water Act permit; but in August, ADC decided not to renew its permit, according to the statement. The Clean Water Act requires a permit from those who intend to discharge harmful chemicals into state waters and wetlands.

The Department of Agriculture declined comment Tuesday on the notice of intent to sue.

Water flows near DuPont Pioneer's now-shuttered parent seed facility in Kekaha, Kauai on June 16, 2015.

Water flows near DuPont Pioneer’s now-shuttered parent seed facility in Kekaha, Kauai on June 16, 2015.

Anita Hofschneider/Civil Beat

ADC meeting minutes show that in July 2015, officials decided that new Department of Health “water quality standards would be extremely difficult to meet, particularly at approval.”

So instead of applying to renew the existing permit, ADC opted to pursue an exemption and create a plan to take care of the soil and water in the Mana Plain. ADC also would have to identify what streams were associated with nearby hydroelectric power plants, according to the minutes.

The Kauai chapter of Surfrider Foundation, a conservation group, tested ditches on the west side of Kaui and confirmed they contain pesticides, according to a statement attributed to Angela Howe, the foundation’s legal director. Earthjustice also cited 2012 Census data that found the majority of nearby residents are people of color and Native Hawaiian.

The drain flows through towns and popular recreation sites, according to the release.

The Mana Plain was one of many locations surveyed in a $100,000 report ordered by the DOA and Kauai County Council in December 2014, following public outcry over potential health and environmental health hazards caused by seed companies’ pesticide use.

Although four pesticides (atrazine, chlorpyrifos, fipronil and glyphosate) were found in the Mana Plain, the report said that the amount found couldn’t have “significant negative impacts.” Water tested from a wetland on the plain detected pesticides, but those tests did not measure the types or concentrations.

Kylie Wager, Earthjustice associate attorney, said in a telephone interview that the issue was brought to the group’s attention after community members reached out to them. The notice of intent to sue is their first attempt at contact with the ADC. She said if ADC doesn’t address Earthjustice’s concerns about noncompliance with Clean Water Act requirements within 60 days, the group will take legal action.

Wager said it was “a shame” that the ADC decided not to renew its Clean Water Act permit, since these areas are used for swimming, fishing and boating. She referenced a 2013-2014 DOH pesticide testing survey that found Kekaha, an area near the Mana Plain, detected trace amounts of the restricted insecticide chlorpyrifos.

The report said Kauai and Oahu had higher levels of pesticides in water samples than the Big Island. Tests at another location on west Kauai found two restricted pesticides at levels within the legal limit, but at levels that could still harm sea life. Many locations tested near lands leased to seed corporations found traces of pesticides.

“The Clean Water Act doesn’t require a showing of extreme health problems,” Wager said. “If pollutants are going into the water, the people have a right to know what those are.”

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