24
Jul
Hawai’i Agribusiness Development Corporation in Violation of Clean Water Act Due to Glyphosate Contamination
Ditch draining seed crop lands before emptying into Majors Bay. (Earthjustice photo)
(Beyond Pesticides, July 24, 2019) The U.S. District Court for the District of Hawai’i has found the state’s Agribusiness Development Corporation (ADC) guilty of violating the Clean Water Act. The case, brought by organizations including Surfrider Foundation, Pesticide Action Network North America, and others, represented by Earthjustice, accused ADC of dumping water contaminated with pesticides, including the cancer-causing herbicide glyphosate, into the Pacific Ocean off of West Kauai without a permit since 2015. Hawai’i bears the brunt of agribusiness wrongdoings, and Kauai in particular has faced past issues of pesticide injustice at the hands of the ADC. However, this new ruling marks a turn in past decisions that have favored agribusiness, as the judge found ADC violations. Advocates hope that this decision will highlight the need for government accountability, and increase transparency about what pesticides and chemicals are entering our oceans.
The ADC system collects groundwater and storm water runoff through a series of canals, ditches, and pumps. The polluted water, full of toxic pesticides and chemicals, discharges into the Pacific Ocean along popular beaches that residents use for recreational activities, including surfing and fishing. The case brought against ADC accuses the department of dumping this water without a National Pollutant Discharge Elimination System (NPDES) permit. Under the Clean Water Act, a NPDES permit is needed when pollutants are discharged from a point source (an identifiable source) into the “Waters of the United States” (WOTUS). However, in 2008, EPA passed an exemption, the Water Transfer Rule (WTR), which enables permit-free water transfer between two bodies of water “without subjecting the transferred water to intervening industrial, municipal or commercial use.”
ADC claims that this WTR exemption applies to their water system, and that any discharge from their canals into the Pacific Ocean is a water transfer from one jurisdictional water into another. Essentially, the ADC claims that their water system qualifies as a WOTUS, a claim that the judge found “suspect.” The decision points out that ADC had previously acted as though its water was a point source not a WOTUS, and since there had been no “intervening changes to the definition of a WOTUS, to the interpretation of the definition, or the physical structure or function of the system itself,” ADC did not satisfy the burden of proof that its water system now qualifies as a WOTUS.
Additionally, ADC did not dispute the fact that the water in its system is polluted with pesticides, ADC argued that the pollution is legal under the WTR exemption. According to state law, transfers of water between U.S. bodies of water are exempt even when it might transfer dirty water into clean water. However, this point is moot. As the judge stated in the decision, “the transfers at issue here are not exempt under the WTR because pollutants are added during the transfer.” These pollutants include a slew of deleterious chemicals, such as degradates (break-down products) of glyphosate and DDT, ametryn, atrazine, bentazon, and other toxic pesticides and metals.
“This is really a major finding that our government, DLNR, and Department of Health are not protecting the environment or protecting the health of us,” said Carl Berg, PhD, Surfrider chapter senior scientist. Dr. Berg has long been skeptical of the quality of the water of West Kauai where the ADC System discharges. He began testing the water in 2014, and found troubling results: The water contained some of the most widely used chemicals, including glyphosate.
The ruling that ADC dumped these chemicals and pollutants into the Pacific Ocean in violation of the Clean Water Act is a victory for the residents of Hawaii and West Kauai who have previously brought complaints against the ADC. Plaintiffs in the case hope that as a result of this violation, ADC will either get the NPDES permit which requires that they record and report on its water quality and pesticide levels, or halt operations. “There is still more work to be done to figure out exactly what ADC will do and when, but from our perspective ADC either needs to go ahead and get a permit as soon as possible,” said Wager Cruz, attorney for Earthjustice in the lawsuit, to KOHN2. As history of agribusiness activity on the Hawaiian Islands has shown, there is an urgent need for real transparency and accountability from the multinational corporations making use of the state’s pristine growing conditions.
For more information about the fight to protect Hawaiian residents and the environment from toxic trespass, see Beyond Pesticides’ previous Daily News stories. And to learn more about the dangers pesticides pose to water quality, see the Threatened Waters program page.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: KOHN2, U.S. District Court Filing, Earthjustice
