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Federal ruling shakes dairy debate

LIHUE — A federal court ruling in Washington state is being eyed as a victory and potential game changer by those battling to stop Hawaii Dairy Farms’ proposed dairy on Kauai’s south side, including the Friends of Mahaulepu group.

HDF, however, doesn’t see a connection.

On Wednesday, U.S. District Judge Thomas Rice of Spokane ruled that a large industrial dairy in Yakima County polluted groundwater through its application, storage and management of manure, posing an “imminent and substantial endangerment” to the environment and to people who drink the water. A trial has been scheduled for March 23 in Yakima to decide how much pollution the Cow Palace dairy of Granger is causing and what steps should be taken as a remedy.

On Kauai, Hawaii Dairy Farms, a company backed by eBay founder Pierre Omidyar’s Ulupono Initiative, is planning to build a $17.5 million, 578-acre dairy in Mahaulepu Valley. In response, Kawailoa Development, LLP, owner of the nearby Grand Hyatt Kauai Resort and Spa and the Poipu Bay Golf Course, filed suit against HDF in 5th Circuit Court July 10, claiming its business, recreational, environmental and aesthetic interests would be adversely affected should the dairy move into the neighborhood.

Jun Fukada, general manager of Kawailoa, said Monday that the opinion recognizes the negative impact large industrial dairies have on the environment and underground drinking water.

“These impacts must be addressed in detail in Hawaii Dairy Farms’ upcoming (Environmental Impact Statement) and be given careful consideration by any approving authorities,” Fukada wrote in an emailed statement.

In light of public concern surrounding the project, HDF has agreed to move forward with a voluntary EIS — one demand in Kawailoa’s complaint.

HDF spokeswoman Amy Hennessey said Monday that, based on her company’s preliminary review of the ruling, it appears the Cow Palace dairy was not following the applicable regulatory requirements for manure management.

“It is unfortunate that the Friends of Mahaulepu are trying to scare the community by pointing to a lawsuit in another state for a 10,000-cow conventional feedlot dairy farm that is completely different from Hawaii Dairy Farms’ planned 699-cow grass-based farm,” Hennessey wrote in an email.

Cow Palace is home to more than 11,000 cows, which produce more than 100 million gallons of manure annually, according to the ruling. Comparatively, HDF plans to gradually phase in its operations over several months, beginning with 699 cows and eventually reaching the initial 2,000. 

A single dairy cow produces about 120 pounds of wet manure each day, equivalent to the waste of 20 to 40 humans, according to the Environmental Protection Agency. The initial herd of 699 cows would produce about 84,000 pounds of manure per day, or about 30.6 million pounds of fecal waste annually.

Bridget Hammerquist, a member of Friends of Mahaulepu and outspoken opponent of HDF’s proposal, said the Washington ruling is significant because it applies the Resource Conservation and Recovery Act, which governs the disposal of solid and hazardous waste, to animal agricultural waste for the first time. Additionally, she believes it gives a green light for a federal court to stop a dairy before harm occurs.

In his 111-page decision, Rice ruled that whether contamination poses a substantial and imminent endangerment to health or the environment “does not require proof of actual harm but rather ‘a threatened or potential harm.’” He relied in part on a 9th Circuit Court of Appeals case.

“Based on the appellate decision followed by Judge Rice and based on the fact both decisions are in the same jurisdiction as the federal courts in Hawaii, the 9th Circuit Court, there is now precedent for a court in Hawaii to enjoin/stop an industrial dairy from operating if the court finds ‘a threatened or potential harm,’” Hammerquist wrote.

Unlike Cow Palace, Hennessey said HDF’s plan is a pasture-based model that will use best management practices to protect the health of the environment, the community and the cows.

“Our farm’s effluent ponds are designed beyond the required size to accommodate a 24-hour, 100-year rain event and will include high density polyethylene liners and a computerized monitoring system that will ensure environmental protection,” she wrote. “We recognize the community’s questions about the design of our farm, which is why we are taking the pono approach and voluntarily conducting an Environmental Impact Statement prior to construction of the permitted dairy facilities.”

More than 3,000 signatures opposing the dairy in Mahaulepu are expected to be delivered to Gov. David Ige next week.

Greg Peters, executive director of Malama Mahaulepu, said his nonprofit has collected more than 1,600 signatures against HDF’s current plan and offered to include them alongside those gathered by Friends of Mahaulepu.

“It sends a stronger message to the governor when we stand up in solidarity and say that people want to ensure this process is done right,” he said.

The independent MM petition was started in September and seeks, not only thorough scrutiny of potential environmental impacts through the Environmental Assessment/Environmental Impact Statement process, binding mitigation measures to ensure protection of precious resources.

Peters said the petition will also be sent to state and county officials, stakeholder groups and HDF.

“The petition is a public engagement tool to help persuade HDF, (Grove Farm) and DOH and decision makers that dairy opposition is broader than some Poipu residents and Kauai environmentalists and food safety advocates,” Peters wrote.

Earlier this month, Friends launched its own signature drive in hopes that the newly elected governor would take notice of community concerns related to HDF’s proposal, including water contamination and impacts to the marine ecosystem. Hammerquist said 850 people have already signed, in addition to 650 signatures gathered for a previous petition the group sent to Sina Pruder, program manager for the state Department of Health Wastewater Branch.

HDF says it encourages anyone with concerns to participate in the EIS process once it begins.

“Hawaii Dairy Farms is committed to sustainably producing fresh local milk for Hawaii’s families,” Hennessey wrote. “By increasing local milk production, we’re helping support Hawaii’s food security for generations to come.”

Attorneys for the Cow Palace said they are already considering an appeal in the case. The civil lawsuit was filed by environmental groups and relied on the likelihood of unlawful pollution, not absolute proof as in criminal cases.

The Associated Press contributed to this report.

Chris D’Angelo, environment writer, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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