Hawai‘i Dairy Farms’ Statement on the Proposed Consent Decree

News Release from HDF, April 6, 2017

Hawai‘i Dairy Farms and Friends of Maha‘ulepu have submitted to Judge Kobayashi for her review and approval a proposed consent decree that is the culmination of several months of settlement discussions between the parties. Both parties felt it was in their best interest to settle rather than go through a lengthy and costly trial. As part of the consent decree, Hawai‘i Dairy Farms will bolster its existing run-off prevention practices.

We are also happy to share that the court has already supported Hawai‘i Dairy Farms’ recommendation that the Makauwahi Cave Reserve be the recipient of $125,000 for a supplemental environmental project to be funded by Hawai‘i Dairy Farms after Judge Kobayashi approves the final version of the consent decree. Rather than spend money in a legal battle, we wanted to directly support the community and address the existing contamination in the area being caused by nearby injection wells, cesspools and invasive species.

This does not change our existing plans to complete the EIS. We remain committed to continuing our work with regulators and the community to bring the state’s first pasture-based dairy to fruition.

It has come to our attention that the Friends of Maha‘ulepu has released inaccurate statements falsely claiming victory in this matter. Below are clarifications to those misstatements:

• As stated in Judge Kobayashi’s order, there is no conclusive evidence that established any discharges caused by HDF activities
• The order does not "require Defendants to implement Best Management Practices (BMPs) to control and prevent runoff from the areas that were illegally disturbed” as quoted by FOM
• The judge selected an independent third party monitor to observe any work needed on the existing water pipelines. It will not be monitored by FOM as stated in its release.
• The consent decree is not “final." It is a “proposed” consent decree that was “lodged” with Judge Kobayashi. It will now be submitted to the Department of Justice (DOJ) and Environmental Protection Agency (EPA) where the document will go through a mandatory 45-day review period. Following that, it could be approved as final by Judge Kobayashi.
• Once approved, the consent decree will only be in effect until Hawai‘i Dairy Farms obtains an NPDES stormwater construction permit.

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CONSENT DECREE FILED 4/5/17 IN FOM CLEAN WATER ACT CASE AGAINST PROPOSED DAIRY

News Release from FOM, April 6, 2017

MAHA`ULEPU, Kauai, HI – Friends of Maha`ulepu (“FOM”) is pleased to announce the resolution of their Clean Water Act case against Ulupono Initiative, LLC, Hawaii Dairy Farms, LLC (“HDF”), and Mahaulepu Farm, LLC (“Defendants”). “There is finally a Federal Court Order with a signed Consent Decree that prohibits any further development, construction, or ground disturbing activities at HDF’s proposed industrial dairy site in Maha`ulepu. The Court’s Order and Consent Decree will remain in effect unless Defendants Ulupono and HDF obtain proper permits from State and County agencies and/or these Defendants abandon their interest in the Maha`ulepu site,” said Bridget Hammerquist, President of Friends of Maha`ulepu.

In a federal ruling in December, Judge Leslie E. Kobayashi found that “Defendants engaged in activities pre- and post-Complaint that required an NPDES permit.” Judge Kobyashi’s Order detailed significant unpermitted ground-disturbing activities over most of the 557 acre site. “This Order and Consent Decree require Defendants to implement Best Management Practices (BMPs) to control and prevent runoff from the areas that were illegally disturbed,” Bridget Hammerquist explained. The installation of the BMPs, as well as any future ground work necessary to perform repairs or address a sudden leak, shall be monitored by FOM to ensure water quality protections are in place. Additionally, HDF and its co-defendants have agreed to pay $125,000 to fund a Supplemental Environmental Project (SEP), a streambank restoration and endangered species protection project to be administered by the Makauwahi Cave Reserve (MCR).

“The health of Maha`ulepu, its rich heritage, County drinking water wells, our ocean and beaches should never be compromised by massive amounts of untreated animal waste” said Bridget Hammerquist.

Defendants, Ulupono and HDF have agreed to fund the SEP as part of the final resolution of the Clean Water Act case filed by FOM nearly two years ago. Supplemental Environmental Projects (SEPs) are part of settlements reached in Clean Water Act cases. They are an alternative to civil penalties that would otherwise be paid by Defendants to the Federal Government.  SEPs, on the other hand, benefit the community directly and are designed to improve, protect, or reduce risks to public health or the environment.  The SEP's activities will include removal of invasive trees and shrubs along the banks of the Waiopili, replacing them with native sedges, shrubs, and monocots. 

The MCR SEP will address the concern that: "this area contains cave passages that are believed to be suitable habitat for the blind cave organisms, but they have been impacted over past decades by the destruction of vegetation by mining activities and periodic flooding from the channelized portion of the Waiopili Stream," according to MCR.  Project funds paid to MCR will also support reforestation and erosion control in the lower Maha`ulepu watershed, the creation of wetland habitat areas, and the planting of long-rooted species will benefit the Cave's two endangered invertebrates.  The SEP activities will be carried out over a 2-year period.

The Consent Decree was filed last night with Judge Leslie E. Kobayashi in the Federal District Court.

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KGI:  Friends, HDF dispute consent decree impact