LIHUE — Oregon-based environmental attorney Charlie Tebbutt on Monday filed a lawsuit alleging violations of the federal Clean Water Act on the part of those behind a proposed dairy in Mahaulepu Valley.
The suit claims the backers of Hawaii Dairy Farms — a proposed $17.5 million, 576-acre operation — have and continue to violate federal water regulations by installing irrigation systems, wells and water troughs without a state stormwater construction permit.
Specifically, the suit alleges that these ongoing construction activities are “reasonably likely to cause discharges of pollutants,” including dirt, debris, sewage sludge, rock and sand, into Waiopili Stream and other nearby waterways.
“The fact that HDF is publicly saying one thing while violating the law by undertaking construction activities is a sign that this company is willing to do anything to try and get its way, and that is certainly not the way to proceed in Kauai,” Tebbutt said.
Tebbutt is representing the nonprofit group Friends of Mahaulepu in its fight to stop HDF, a company backed by eBay Founder Pierre Omidyar’s Ulupono Initiative. The suit also names Mahaulepu Farm among the illegal “dischargers.”
Amy Hennessey, HDF’s spokeswoman, has said the only activity taking place on the site is the growing and mowing of grass for pasture and the installation of water quality monitoring wells and fencing. All pasture cultivation activities, including the installation of an irrigation system, are authorized under the Natural Resources Conservation Service Conservation Plan and are not subject to National Pollutant Discharge Elimination System requirements because they are for agricultural purposes, she said.
“We believe this suit is without merit and a regrettable waste of the community’s resources,” Hennessey said in a prepared statement. “It is unfortunate that Friends of Mahaulepu group is using litigation instead of conversation to address its concerns about Hawaii Dairy Farms’ planned pasture-based dairy.”
HDF filed an application for a stormwater permit in September 2014, but did not complete the permit process after the company decided to first conduct a voluntarily Environmental Impact Statement prior to construction, Hennessey said.
The application lapsed due to inactivity, she said. HDF has filed a new application to restart the process.
“While Hawaii Dairy Farms does have its building permits from the County of Kauai, we are demonstrating good faith by not moving forward with construction until after the completion of the EIS,” Hennessey said. “As the first pasture-based dairy in the state, Hawaii Dairy Farms has encountered new, unique situations in the regulatory process. This uncharted path has led Hawaii Dairy Farms to work closely with the federal, state and county governments to ensure adherence to all regulatory standards.”
The lawsuit comes 60 days after FOM filed a notice of intent to sue the defendants for launching preliminary site construction projects without a stormwater National Pollutant Discharge Elimination System permit.
Bridget Hammerquist, president of FOM, said the group is committed to protecting the Mahaulepu area from pollutants.
“FOM is supportive of safe agriculture that does not risk the public’s health or threaten the environment, but this proposal not only threatens the Mahaulepu area, but is operating in disregard for the law already,” she said in a prepared statement. “The harm and further degradation of one of Kauai’s most revered locations must be stopped.”
The lawsuit states that HDF’s preliminary construction work, including grading and excavating, is 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 the proposed dairy site.
Recent testing has shown it is Kauai’s most polluted stream — of several that continuously fail to meet state water quality standards.
Bacteria tests conducted by Surfrider Foundation’s Kauai Chapter found that pollution levels in the stream are 275 times higher than the bacteria limits set by the government, according to data released by the ocean protection group. Test results from nearby waters where the stream meets the sea are nearly 17 times greater than state and federal limits, the data shows.
Surfrider and FOM mailed a petition last month to the Department of Health and its Environmental Health Administration calling for the stream to be listed as an impaired waterway under the Federal Water Pollution Control Act. They also requested public health warning signage.
“FOM has previously offered to sit down with HDF to discuss the foolishness of the proposal to put 2,000 head of cattle in the Mahaulepu Valley,” Tebbutt said.
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 last July, 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.
Hennessey said HDF’s consultants are working on the draft EIS statement and plan to share the document for public comment this summer.