Intent to sue filed over dairy

LIHUE — Oregon-based environmental attorney Charlie Tebbutt filed a notice of intent to sue those behind the proposed $17.5 million, 578-acre dairy in Mahaulepu Valley.

The notice includes eBay founder Pierre Omidyar and says it is for ongoing violations of the federal Clean Water Act.

“Just because they are billionaires who are backing the proposal does not mean that they are above the law,” Tebbutt said Thursday.

Tebbutt is representing the nonprofit group Friends of Mahaulepu in its fight to stop Hawaii Dairy Farms, a company backed by Omidyar’s Ulupono Initiative. In addition to HDF and Ulupono, the notice names landowner Grove Farm and Mahaulepu Farm, LLC among the illegal “dischargers.”

The notice informs HDF that the Friends group intends to bring federal court action after a 60-day statutory period in response to preliminary site construction activities being done without the stormwater National Pollutant Discharge Elimination System permit required by law.

“This lawsuit will allege that Dischargers have violated, are violating, and will continue to violate the CWA by failing to obtain coverage under Hawaii’s General Stormwater Permit — or coverage under an applicable individual permit — for construction activities at the proposed dairy site,” the notice reads.

Amy Hennessey, spokeswoman for HDF, said her company believes the intent to sue is “completely without merit and serves only to feed the inflammatory rhetoric of the Friends of Mahaulepu.”

Hennessey said that even though HDF holds building permits from the county, and DOH has completed its review of the Animal Waste Management Plan that allows for up to 699 cows on the farm, her company has committed to delay building the dairy facilities during the voluntary Environmental Impact Statement process. She called FOM’s intent to sue surprising and disappointing.

“The assertions of environmental harm contradict Hawaii Dairy Farms’ preliminary review of site conditions,” she wrote. “The Friends of Mahaulepu are raising funds for a Mainland attorney with no proven track record in Hawaii based on unfounded accusations.” 

Tebbutt said HDF can’t argue it didn’t know about the required permit because it applied for one in September — months after construction activities had begun — and was ultimately not approved by the Department of Health. 

“They chose to continue with their activities in spite of the fact that they knew they were operating illegally,” he said.

Hennessey said HDF was in the process of applying for the stormwater permit when a decision was made to voluntary move forward with an EIS. As a result, HDF slowed its efforts to focus on the EIS Preparation Notice, she said. 

“The only activity that is taking place on site now is the growing and mowing of grass for pasture, installing water quality monitoring wells and installing fencing. All pasture cultivation activities, including installation of the irrigation system, are allowed within the approved Natural Resources Conservation Service (NRCS) Conservation Plan, and are not subject to NPDES requirements because they are for agricultural purposes,” she wrote.

Grove Farm did not response to a request for comment.

The five-page notice said that preliminary construction work, including grading and excavating, is being blamed as a likely source of the pollution ending up in Waiopili Stream, which flows off Grove Farm land and enters the ocean near Makauwahi Cave Reserve and downhill from HDF’s proposed dairy site. Recent testing has shown it is Kauai’s most polluted stream — one of several that continuously fails to meet state water quality standards.

Just this week, a sample collected by the Surfrider Foundation Kauai Chapter’s Blue Water Task Force contained 15,531 fecal indicating Enterococcus bacteria per 100 ml of water — more than 174 times the state standard of 89 bacteria per 100 ml.

Bridget Hammerquist, president of FOM, said her group supports sustainable agriculture but is convinced the proposed dairy is anything but.

“The massive amount of waste Hawaii Dairy Farms would generate is simply incompatible with the fragile Mahaulepu Valley environment,” she said in a statement.

HDF says its operation will be Hawaii’s first zero-discharge, grass-fed dairy, built on best management practices to uphold the highest standards for the health of the environment, the cows and the community.

“It is unfortunate that this group of individuals is using the banner of environmental protection and scare tactics to prevent agricultural use on designated Important Agricultural Lands,” Hennessey wrote.

FOM is not the only entity that has taken legal aim at HDF.

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.

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

If approved, FOM says the dairy would produce millions of pounds of bacteria-laden waste within 750 feet of the county wells that provide drinking water for Poipu and much of Koloa, and could have serious implications for the nearby coral reefs and coastal waters.

“This is the last place on Earth that should have an industrial dairy,” said FOM’s Jay Kechloian.

While the notice does not name DOH, Tebbutt and others say the department appears to have failed in its responsibility to enforce the CWA in Mahaulepu.

After three rounds of testing last year, DOH was unable to pinpoint the source of pollution ending up in Waiopili Stream in Mahaulepu. Reached by phone Wednesday, CWB Chief Alec Wong said he could not answer whether a final report of the findings was ever published. He referred The Garden Island to Watson Okubo, monitoring and analysis section chief of the CWB, who is out of the office until Monday.

DOH spokeswoman Janice Okubo said by email the department does not provide comments on issues involving possible litigation.

The Friends group says if HDF and other parties do not stop their violation and take the necessary steps to comply with the law, a federal lawsuit will be filed 60 days from Wednesday’s postmark. FOM will seek relief, including attorney fees and costs.

Hennessey called the latest push by FOM yet another assault on agriculture and the rights of farmers using Mainland counsel in an attempt to bully local farmers and ranchers. 

“Hawaii’s people deserve to see the results of the technical studies before making any judgments,” she wrote.

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

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