(PNN) DLNR COMPLAINT SEEKS RESTORATION OF MOLOA`A STREAM AND INVESTIGATION OF ILLEGAL DIVERSION

DLNR COMPLAINT SEEKS RESTORATION OF MOLOA`A STREAM AND INVESTIGATION OF ILLEGAL DIVERSION

(PNN)- Hope Kallai of Malama Moloa`a has filed a detailed complaint with the state Commission on Water Resources Management (CWRM), a division of the Department of Land and Natural Resources (DLNR), providing evidence and documentation and that she hopes will lead to investigation and the restoration of water illegally diverted from Moloa`a Stream.

The complaint and it’s 77 endnoted exhibits detail the history of the Moloa`a Ditch from the sugar cane era through the illegal diversion that occurred apparently about 10 years ago and which increased the amount of water supplied to Ka Loko Reservoir and other lands owned by Jimmy Pflueger and the Mary Lucas Estate causing Moloa`a stream slow to a virtual trickle.

After reviewing the voluminous files contained in the state ordered Godby Report and it’s extensive document appendix (compiled after the 2006 Ka Loko dam break that killed seven people), a recent county funded report on the Kilauea area irrigation systems and other documents, the complaint details the apparent theft of Moloa`a water that has caused wells to run dry and farmers to cease operations in the valley since the illegal diversion was completed.

The complaint clears up the history of the Moloa`a Ditch saying

There were previously 2 historic Moloa`a ditches. In the late 1890’s, the original Moloa`a Ditch carried a minimal amount of water from a high contour ditch to Waipake. The second historic Moloa`a ditch followed easement “W-11” and was used from the 1920’s to about 1965-1968 to carry high rain runoff to Ka Loko ditch near the Parshall Flume, mainly during the winter months. According to Jack Gushiken, this ditch was not used during the summer during sugar plantation days because Pu`u Ka Ele ditch had plenty water. In the late 1960’s insignificant water flow led to no maintenance which lessened flow to non-existent. The Moloa`a ditch was non-functional before the demise of Kilauea Sugar in 1972. It was non-functional for about 20 years at the date of declaration need by the State Water Code in 1988. It had not ever been declared because it was not in use until about 2000.

Apparently, according to Kallai’s research, the theory presented in a pre-dam break letter to the EPA- as PNN reported last week- saying that Moloa`a Ditch originally may have acted as an overflow spillway for the Ka Loko ditch system and ran “in reverse” in order to return excess water to Moloa`a Stream, was incorrect.

Though there is no concrete proof, the illegal diversion is thought to be the work of Pflueger who has been found guilty of various land moving violations in the area including one that resulted in the largest fine for reef destruction in federal Environmental Protection Agency history.

As PNN has reported, according to multiple friends of Pflueger, he had planned a water-sports-based resort in the area and apparently needed more water than the Ka Loko Ditch could provide in order to fill artificial lakes he constructed as well as fill existing area reservoirs like Ka Loko for water and jet-skiing.

According to two area residents who examined the pipes and watched them being installed, the water system crosses the highway through culverts at Pila`a and supplied a series of Pflueger constructed “lakes” makai of the highway which were just recently removed as part of the remediation ordered by the EPA.

Pflueger is set to stand trial for manslaughter this summer as well as defend multiple civil suits for damages related to the Ka Loko dam break and other incidents in the area

The CWRM complaint describes the current reconstructed ditch based on the studies and documents saying

The unpermitted diversion of Kalua`a/Moloa`a stream begins at a new dam (”Pre-2001” according to the Kilauea Irrigation Report April 2009), constructed on state land in the Moloa`a Forest Reserve, continuing 2,750 feet towards Ka Loko through a system of ditches, flumes and tunnels to Mary Lucas Trust lands, where a diversion structure directs water underground through pipes either into Ka Loko reservoir or to the Mary Lucas Trust lands and the Kilauea Irrigation Company (KICO) system distribution lines for sale. These pipes are carried underground through other lands belonging to the State of Hawaii , (TMK (4) 5-1-2:3), according to the above report, and export millions of gallons of water per day out of the watershed of Moloa`a, without engineering, metering or monitoring for about a decade.

The complaint then details the deleterious effects on Moloa`a resident saying

The unpermitted exportation Kalua`a/Moloa`a stream has caused a perennial stream to go dry for 2 summers (2007 & 2008) and had serious negative impacts to the aquatic ecosystem of Moloa`a, seriously diminishing nesting habitat for 3 endangered water bird species and an assemblage of endangered stream and pali plants. Water quality is diminished in the remnant pools. Impacts to the ecosystem must be considered before the massive exportation of water resources.

Since this un-engineered, un-maintained diversion was installed, Moloa`a has experienced many dirty water events – both brown water and grey water reported. Moloa`a stream has experienced un-explained extreme flood events that have damaged stream property and county infrastructure. The ground water aquifer has diminished due to lack of recharge from the stream aquifer. Water well pumps have had to be lowered due to diminished aquifer and most people self-ration. Neighbors with declared Stream Uses are not able to use their water rights. There is no county water distribution system for potable or agricultural water throughout Moloa`a; most farms are dependent upon well water. Now we are having a hard time planting because we cannot depend upon having water.

Many stream front lands are going unworked now because owners do not feel safe due to unknown factors/persons manipulating and controlling the waters.

The complaint was filed with the CWRM which establishes Instream Flow Standards and issues Water Use Permits, Stream Channel Alteration permits and Stream Diversion Permits.
Kallai told PNN there are at least three things she hopes the commission will do.

1 See that Moloa`a water returned and natural stream flow restored.

2 Investigate and prosecute whoever is responsible for stealing our water and selling it

3 With the fines, fund a stream research center and watershed restoration effort and funding for environmental enforcement and enough researchers to perform statewide assessments of our water resources and where they're going


For more background on the Ka Loko ditch and reservoir system and work done on Moloa`a ditch resulting in a lack of water in Moloa`a, refer to the four previous PNN reports.

For the record, below is the full complaint, including endnotes
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DLNR - CWRM Complaint Resolution Form Kalua`a Moloa`a Stream DiversionDate: Thu, 21 May 2009 15:22:55 -1000Complaint/Resolution Information1. Hope KallaiPOB 655Kilauea HI 96754Location: Moloaa Forest Reserve and Mary Lucas Trust lands Headwaters of Kalua`a/Moloa`a streamsMoloa`a Forest Reserve and Mary Lucas Trust lands listed as Land and Landowner State Lands are TMK (4) 5-1-2:3 and 5-1-1:? MLT lands are 5-1-2:5 and 5-1-2:1Parties Responsible1. Unknown person(s) who constructed unpermitted stream diversion from Kalua`a/Moloa`a2. All parties aiding and abetting the exportation and distribution of unpermitted Kalua`a/Moloa`a water3. a. Kilauea Irrigation Company b. Hitch Co. c. all past water managers of that PUC regulated company during construction and operation of Kalua`a/Moloa`a ditch
4. The unpermitted diversion of Kalua`a/Moloa`a stream begins at a new dam (~”Pre-2001” according to the Kilauea Irrigation Report April 2009), constructed on state land in the Moloa`a Forest Reserve, continuing 2,750 feet towards Ka Loko through a system of ditches, flumes and tunnels to Mary Lucas Trust lands, where a diversion structure directs water underground through pipes either into Ka Loko reservoir or to the Mary Lucas Trust lands and the Kilauea Irrigation Company (KICO) system distribution lines for sale. These pipes are carried underground through other lands belonging to the State of Hawaii , (TMK (4) 5-1-2:3), according to the above report, and export millions of gallons of water per day out of the watershed of Moloa`a, without engineering, metering or monitoring for about a decade. According to the areas identified on the maps as “Overflow Erosion Channels”, this system shows evidence of breaching both into Ka Loko reservoir and back into the Moloa`a system, which could be responsible for Moloa`a stream’s dirty water events.

Please see Inclusions: 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 23, 24


5. The unpermitted exportation Kalua`a/Moloa`a stream has caused a perennial stream to go dry for 2 summers (2007 & 2008) and had serious negative impacts to the aquatic ecosystem of Moloa`a, seriously diminishing nesting habitat for 3 endangered water bird species and an assemblage of endangered stream and pali plants. Water quality is diminished in the remnant pools. Impacts to the ecosystem must be considered before the massive exportation of water resources.

Please see Inclusions: 68, 69, 77

Since this unengineered, un-maintained diversion was installed, Moloa`a has experienced many dirty water events – both brown water and grey water reported. Moloa`a stream has experienced un-explained extreme flood events that have damaged stream property and county infrastructure. The ground water aquifer has diminished due to lack of recharge from the stream aquifer. Water well pumps have had to be lowered due to diminished aquifer and most people self-ration. Neighbors with declared Stream Uses are not able to use their water rights. There is no county water distribution system for potable or agricultural water throughout Moloa`a; most farms are dependent upon well water. Now we are having a hard time planting because we cannot depend upon having water.
Many stream front lands are going unworked now because owners do not feel safe due to unknown factors/persons manipulating and controlling the waters.

6.In the late 1990’s – early 2000 or 2001, Moloa`a Steam started behaving totally different. High precipitation events would not raise the stream level; sometimes the stream would rise without rain! The sand berm at the mouth of the river didn’t clear for 3 years making anoxic conditions and prohibiting the migration of o`opu. Moloa`a had many dirty water events reported to DOH-CWB.

Please see Inclusions: 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 45, 46, 51

7. The Kalua`a/Moloa`a diversion is unpermitted and undeclared. There were previously 2 historic Moloa`a ditches. In the late 1890’s, the original Moloa`a Ditch carried a minimal amount of water from a high contour ditch to Waipake. The second historic Moloa`a ditch followed easement “W-11” and was used from the 1920’s to about 1965-1968 to carry high rain runoff to Ka Loko ditch near the Parshall Flume, mainly during the winter months. According to Jack Gushiken, this ditch was not used during the summer during sugar plantation days because Pu`u Ka Ele ditch had plenty water. In the late 1960’s insignificant water flow led to no maintenance which lessened flow to non-existent. The Moloa`a ditch was non-functional before the demise of Kilauea Sugar in 1972. It was non-functional for about 20 years at the date of declaration need by the State Water Code in 1988. It had not ever been declared because it was not in use until about 2000.

This Kalua`a/Moloa`a dam, ditch, flume, tunnel and underground pipe system is a new design and installation (“Pre-2001”) and has been installed and operated FOR PROFIT without monitoring, engineering, permits, source water considerations, or any regard to laws or safety.

Until the recent release of the Kilauea Irrigation Report we had no ability to prove the obvious causes to our diminished stream flow. We have been told repeatedly that there is no connection between Moloa`a stream and Ka Loko reservoir. There is no connection visible on the surface. The waters are hidden underground, in pipes, and have been installed on state land to transport water without the state’s permitting process. There is a well documented history of environmental abuse and water mis-management in the Ka Loko area. Difficult access and legal posturing have made an exclusive, uncontrolled and discriminatory use of the state’s water, as District Forester Robert Daehler worried in1988 “Unless an equitable distribution system and volume allotment system is specified in the agreement the “Public Utility” could become dictatorial enjoying a monopolistic hold on the State’s public water resource.”

And continued
Will the granting of a public utility permit such as being considered serve to provide equal opportunity of water for agricultural pursuits on all lands previously serviced by the Ka Loko system? If not, the question of the advisability of locking up a public resource for 30 years should certainly be asked.

Please see Inclusions: 2, 3, 4, 5, 6, 23, 24, 50

The water from the Ka Loko system previously irrigated over 6,000 acres of the Kilauea Sugar Plantation holdings from Moloa`a to Kalihiwai. The original KICO PUC permit considers re-watering important ag lands from Moloa`a to Kalihiwai. Moloa`a, Lepe`uli, Ka`aka`aniu, and Waipake have been important and productive lands and are still zoned for agriculture. In 1984, an extensive study was performed, the Kilauea Agricultural Water Management Study, considering 10 different alternatives for the Ka Loko water.

Please see Inclusions: 65, 66, 67, 68

Now KICO only services about 20 customers, making the waters of Ka Loko geographically exclusive. KICO is a nebulous company at best and has been operating without insurance since December 2006. KICO management practices have enabled disaster. Regardless of whoever covered up the spillway, KICO daily operations continued without any ability to safely release overspill. KICO manages the unpermitted diversion and aids in the export and sale of unpermitted water.

Please see Inclusions: 4, 5, 6, 7, 61, 62, 64, 65, 66, 67, 68

Management of a dam must include operations of the safety features: a spillway and the ability to divert water from the impoundment for emergencies and maintenance. The increased elevation of the dam face and the removal of the spillway enabled storage of more water. The unpermitted diversion from Kalua`a/Moloa`a stream brought millions of gallons of additional water into Ka Loko reservoir. If the new Kalua`a/Moloa`a ditch system only carries ¼ of the flow of the Ka Loko flow (a very conservative underestimate), see historic charts, and the inflow from Ka Loko ditch was estimated at 205 cfs during the 4 days pre-breach, then at least 50 cfs were being added into Ka Loko from the Kalua`a/Moloa`a ditch. The added inflow from the new Kalua`a/Moloa`a ditch system could have added over 200 million gallons of previously un-accounted for water into the water body of Ka Loko reservoir in only a few days.

As explained in KIR, the unpermitted Kalua`a/Moloa`a ditch water can be diverted to KICO and Mary Lucas Trust lands. What was the flow operation of the Kalua`a/Moloa`a ditch water during the high precipitation event of Feb-March 2006? Historically, Kaluamakua stream was used to divert Ka Loko ditch water from entering Ka Loko reservoir. KICO has failed to maintain this flume system resulting in an inability to redirect high flows.

Please see Inclusions: 47, 48, 49
:

9. We, and many others, have made ongoing attempts to stop this massive export of Public Trust water to protect the environment and public for the past decade. Lack of access, lack of appropriate corrective response from agencies and letters from attorneys speculating on plumbing has thwarted investigation for almost a decade. Now 8 people are dead and most parties involved are involved in lawsuits. Except the farmers in Moloa`a. We just don’t have water to farm or live.

Please see Inclusions: 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 52, 53, 54, 55.

10. The only successful and fair remedy is to immediately return the waters of Kalua`a/Moloa`a ditch to the stream systems of Kalua`a/Moloa`a to restore the natural streamflow. For the purposes of the KIR study, Kalua`a/Moloa`a ditch waters were returned on August 27-29, 2008 by turning a valve on the Mary Lucas Trust land “diversion structure”. The turn of one valve returns the water to Kalua`a/Moloa`a. This ditch system, operating on state land, without permits, engineering, insurance or permission must be REMOVED.

Please see Inclusion: 47, 48, 49, 50, 51

A thorough investigation of the construction of this ½ mile ditch system must begin immediately and prosecution of the builder to the fullest extent of the law must follow.

Fines must be imposed for the theft of Public Trust waters with the resulting funds being used to expand Hawaii stream research, establishment of Instream Flow Standards for all streams in Hawaii and to support the re-establishment of ditch waters, where appropriate.

There needs to be a thorough investigation of the PUC regulated operations of KICO and their business conditions. How long is the state willing to let them operate without insurance? Another 3 years? An investigation must include why the former ag lands of Kilauea Sugar have been removed from irrigation water consideration by KICO.

There have been many attempts to stop this illegal diversion for the past decade. There has been a total breach of the environmental protection and enforcement system, not just a breach of Ka Loko dam. A thorough investigation must include all agencies involved and why the system has failed and prevent this atrocity from ever happening again.

An unsafe, unpermitted theft of Public Trust waters has been allowed to continue for a decade. It must stop today. Please turn the valve on Mary Lucas Trust lands re-diverting the stolen Kalua`a/Moloa`a waters back to the streams of origin.

I request that the Commission on Water Resource Management assist in resolving the matter described herein.




­­­­­­­­­­­­­________________________________ ­­­­­­­­­­­_________________________
Signature Date


Kalua`a/Moloa`a Stream Diversion

Complaint Resolution Request

Inclusions: Most found in http://www.kalokodam.net/report/Report.pdf &

http://www.srgii.com/projects/KilaueaIrrigationReport_April09.pdf.
1
Complaint Resolution Form
2
Streams & Ditches of Kilauea
3
Figure 20 Aerial photo Ka Loko
4
Figure 5-2 Moloa`a Ditch
5
Figure 2-3 Ka Loko Reservoir Infrastructure
6
Figure 5-5 KICO Pipeline System
7
Figure 9-1 Alternative Concept Solution Design 2
8
Exhibit A Eastment W-11
9
Figures 21 & 22
10
Figures 23 & 24
11
Figures 25 & 26
12
Figures 27 & 28
13
1998 Malama Moloa`a & List
14
Nov. 2001 CWRM letter
15
Nov. 2001 CWRM attached map
16
Nov. 2001 CWRM attached photo
17
Nov. 2001 CWRM attached photo
18
Nov. 2001 CWRM attached photo
19
Feb. 2002 CWRM letter DLNR 1285
20
Feb. 2002 CWRM attachments (same as Nov. 2001)
21
March 15 2002 Memo DLNR 1286
22
Sept. 2 2002 CWRM letter
23
Kilauea Irrigation Report April 2009 Pages 11-14
24
Kilauea Irrigation Report April 2009 Pages 37-39
25
March 25 1955 BLNR letter DLNR 532

Kalua`a/Moloa`a Stream Diversion

Complaint Resolution Request




26
March 20 1073 Dyer letter to DLNR-Land DLNR 803
27
Sept 14 1979 DLNR-DFW - Land DLNR 674-675
29
Sept 27 1979 County of Kauai Planning DLNR 655
29
October 24 1979 BLNR DLNR 658 662
30
Nov 28 1979 DoA-BLNR letter DLNR 657
31
Dec 19 1980 Hawaiiana to DLNR letter DLNR 641
32
Nov 17 1988 District Forester - DVM Land letter DLNR 75-76
33
Sept 21 1988 DWLD-Land letter DLNR 83
34
Godbey Report Pages 29-52
35
Dec 2006 DLNR land & AG to McCorriston letter Exhibit D
36
Sept 28 2007 Termination letter D-5
37
Sept 28 2007 Press Release
38
BLNR Minutes Sept 28 2007
39
KICO Meeting Oct 29 2007
40
Moloa`a Flood Feb 2006 picture
41
Moloa`a Flood Feb 2006 picture
42
Moloa`a Flood Feb 2006 picture
43
Ka Loko Reservoir bathymetry
44
Ka Loko Reservoir 1980-2006
45
Godbey Report Pages 58-69
46
Godbey Report Pages 72-78
47
Figure 5-1 Ka Lo Ditch & Kaluamakua
48
March 29 2006 Tom Hitch letter TH002 Exhibit 1
49
Kilauea Irrigation operations page (Brewer) B00678
50
Kilauea Irrigation Report Inflow & Outflow Control

Kalua`a/Moloa`a Stream Diversion

Complaint Resolution Request
51
Godbey Report Pages 12-14
52
October 2001 Garner Complaint Resolution Form DLNR 1287-1293
53
Feb 1 2002 Request to Enter DLNR 1294-1300
54
Feb 15 2002 DLNR to to Garner DLNR 1301-1302
55
Undated Letter to Catherine Kuhlman EPA EPA 000001-000006
56
June 1988 Heacock-CWRM letter - Waiakalua DLNR 1278-1283
57
October 28 2005 Complaint Resolution Form-Perius DLNR 1327-1328
58
March 14 2006 Phone memo from Mike Perius DLNR 1324
59
Sept 1992 CWRM Stream Use Declarations
60
2005 State Water Project Plan Inventory of Stream Diversions
61
March 2001 - Aug 2001 PUC memos PUC 001109 -001144
62
April 2001 PUC staff report PUC 001186
63
May 19 2003 Pu`u Ka Ele Dec of Water Use & Stream Diversion DLNR 1325-1326
64
FY 2005-2006 State of Hawaii Annual Report Pages 24 & 25 (excerpted)
65
1984 KAWMPS Preface
66
1984 KAWMPS Map and Kilauea Sugar plantation irrigation sphere of influence
67
1924 Moloa`a Picture showing extent of plantation agriculture
68
Table 4. Annual Average Rainfall Kilauea Irrigation System Watershed DLNR 1752
69
1996 Bioeconomics of Stream Management in Hawaii M. Kido
70
East Kauai Water User's Co-Op
71
May 3 2009 Malama Moloa`a CRWM IFS Request
72
May 3 2009 Malama Moloa`a EPA letter
73
May 8 2009 Malama Moloa`a BLNR letter
74
May 4 2009 Malama Moloa`a DLNR-Land letter
75
Malama Moloa`a AG correspondence
76
Moloa`a Stream Gone Dry article
77
Moloa`a bridge article