GET BACK JACK

GET BACK JACK: More than two years ago in May and June of 2009 PNN posted a series of six articles detailing the alleged illegal diversion of Moloa`a stream which, it appears, at least contributed to the Ka Loko Dam break if not actually being the proximate causal event.

The diversion- allegedly done by landowner Jimmy Pflueger- caused Moloa`a stream to be diverted into the reservoir according to documents provided by Hope Kallai, a Moloa`a farmer who says she has been denied water to her property.

As we wrote in compiling the articles on our left rail:

It’s not Chinatown Jake, but it’s close.

About 10 years ago “someone” dammed up Moloa`a stream and re-built the long-defunct and dilapidated Moloa`a Ditch, diverting almost all the water that serves Moloa`a Valley through three tunnels that lead to Ka Loko Ditch.

From there the water flows into a system of underground pipes that serves Jimmy Pflueger’s properties in the Pila`a/Waiakalua/Wailapa area and with the excess dumped into the Ka Loko Reservoir which gave way killing seven people in 2006.

And despite two years of begging the Department of Land and Natural Resources (DLNR) to at least inspect the apparently still active diversion, no action has been taken.

But Kallai hasn't given up and today we present her latest appeal to new DLNR chief William Aila- which she plans to present at the DLNR "listening sessions" scheduled for later this month- detailing her thus far futile efforts to regain what she calls her "stolen" water.

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17 Aug 2011

Hope Kallai
Malama Moloa`a
POB 655
Kilauea, HI 97654
Lokahipath2(at)live.com

Chairperson William J. Aila, Jr.
Department of Land and Natural Resources
Kalanimoku Building
1151 Punchbowl Street
Honolulu, HI 96813
William.J.Aila@hawaii.gov
DLNR@hawaii.gov
DLNR2011ListeningSessions@hawaii.gov

Re: Topic For Listening Session 2011 Kauai
Remove the Moloa`a/Kalua`a Stream Diversion
Moloa`a Forest Reserve, Kauai

Aloha e Chairperson Aila:

Mahalo for taking the time to come to Kauai again and especially taking the time to listen to us.  I have written   ridiculous amount of correspondence to DLNR without response.  Mahalo for changing this pattern.

Moloa`a Stream was a perennial stream; it always had flowing water - enough to support several hundred people.  About a decade ago, the flow in Moloa`a Stream changed.  The stream would not rise during heavy precipitation events; sometimes it rose when it was not raining mauka.  There were unexplained dirty water events both brown water and grey water.   There were no flushing flows to clear out the sand berm at Moloa`a Stream mouth.  Moloa`a Stream began being seriously diverted about 2001, continuing today.

The kumuwai of Moloa`a is in the Moloa`a State Forest Reserve, mauka of Ka Loko Reservoir.  The Moloa`a system is fed by perennial tributaries of Kalua`a Stream, including Kanalohewahewa, stemming from a perennial bog.  The ahupua`a of Moloa`a has no community water system, either potable or irrigation.  Recently, our family’s water well went dry.  After 10 years of an un-permitted stream diversion removing our groundwater aquifer, we had to dig 150’ deeper (at $55/ft) to find water to be able to live and farm on our 5 acres.. 

Two different individuals complained to CWRM before our ahupua`a-based community group did in 2001(Godbey Exhibits: DLNR 1285 to DLNR 1296, EPA 001-033),  about the diversion of upper Moloa`a Stream.  A formal Stream Resolution Complaint No. 01-12 was filed Oct 3, 2001 by Daniel Garner, complete with maps and photos but Mr. Pflueger’s attorney responded that water does not run upgrade and that the diversion would originate mauka in the State Forest Reserve (DLNR 1297-1303).  An offer was made to escort state representatives to the alleged “landlocked” State Forest Reserve.  As Mr. Garner told CWRM in 2001, “growing taro with no water is difficult, if not impossible” and he abandoned his lo`i kalo on Moloa`a.  When is CWRM going to act on the 3 Moloa`a Stream diversion complaints?

The newly released KalokoPhase II Dam  Report documents exactly where in the forest the ditch originates, by GPS measurement.  The 2009 Kilauea Irrigation Company Report (Draft April 2009, Final October 2009) maps and documents when the diversion was constructed (about 2001).  It further documents how this un-permitted, un-engineered, illegal 7’ ditch terminates into an 8” underground irrigation system on Mary Lucas Trust lands,  goes through a 90 degree angle, then is reduced from 8” to 6”.  The KICO report maps how the ditch has overflown into Kaloko Reservoir, causing “Overflow Erosion Channels”.  The construction of a new, additional inflow into Kaloko is an alteration of appurtenant dam works.  This is illegal and needs to be removed immediately.  Moloa`a needs it’s water.  KICO has been dumping excess diverted (stolen) water into the ocean in the area of 4170 North Waiakalua for years, all to the detriment of the Moloa`a ahupua`a.  When are the alterations to the Kaloko system going to be removed?

We have filed a Stream Resolution Complaint - the 3rd on Moloa`a .  We have asked for Flow Standards to be established for Kalua`a and Moloa`a Streams.  We filed a Complaint Dispute Resolution Response request on 14 March 2011.  We have gotten no resolution yet to our steam diversion complaints.  We have gotten no responses.  What are we doing wrong?  How can CWRM keep permitting groundwater well withdrawals without understanding the water budget of Moloa`a?

We cannot wait another decade for our stream flow to be restored.  What can we do to remove this illegal diversion from taking and selling stolen Public Trust water from the State Forest Reserve (designated for watershed protection)?  The KICO inflow/infiltration study documents how the turn of one valve returns the stolen water into the Moloa`a ahupua`a, but the entire ½ mile ditch and new headwaters impoundment, in trespass in the forest, must be removed. Moloa`a Stream and Kalua`a bog, (one of the last low elevation bogs in Hawaii) need to be restored.

The BLNR voted to revoke Revocable Water Use Permit S-6240 to Kilauea Irrigation System in September, 2007 but left the termination date to be decided by DLNR staff (.  I previously requested the termination of Revocable Permit S-6240 (2009 June 3 Termination of Revocable Permit S 6240), but have not received an answer yet. Can you please tell me the status of this permit?  Does KICO have insurance?  According to the Phase II report, KICO is  failing to maintain the Kaloko Ditch from Pu`ukaele Stream.  Are they relieved of this maintenance kuleana?  Has the hazard rating of Kaloko been determined?  Is there an Emergency Action Plan yet?

We have written many letters about the diversion of the upper Moloa`a Stream system, but have gotten no responses.  We warned people about these un-permitted diversions mauka of Kaloko before the Kaloko dam breach (EPA 000034- .  Dam Safety inspectors were not sent out in response to a flood that destroyed a bridge (2009 Jan 26 State Ended Safety Inspections Before Hawaii Dam Collapsed).  1 week before 8 people died, the EPA and DOH were sent to Kaloko (EPA 000064-000105).  DOH Environmental Health Specialists and the Enforcement Section Supervisor didn’t notice the lack of a spillway -they checked silt fences.  Nobody checked the stream diversions mauka of Kaloko (-the ditch goes underground on Mary Lucas Trust land) which had been reported to the state for 5 years by then.  They were more interested in “closing the loop” (EPA 000045, EPA 000050) and checking Pila`a Consent Decree mitigation remediation actions.

We’ve been told:
“You cannot go up there - it’s private land.”
“You’re crazy - Moloa`a and Kaloko are not connected,”
“Don’t worry,  If Kaloko blows, it’ll take out Kilauea side, not Moloa`a.:
“It’s Pflueger’s land, he won’t let the state go there.”  
‘Moloa`a Ditch never went into Kaloko - only into Kaloko ditch above the flume.”
“Moloa`a Ditch went pau in the 1960’s.  Only carried water during high rain storms.  Kilauea Sugar quit maintaining it before plantation went pau.”
“Moloa`a ditch doesn‘t exist anymore.  It is functionally obsolete.”
“We have no record of this ditch.  We cannot talk about it.}
“We are not interested in pursuing another Clean Water Act violation against Jimmy Pflueger.”
“We have to get Jimmy Pflueger’s permission to inspect the breached dam..”
“Kaloko never had a spillway.”
“The dam is not a dam anymore.  Too small.  No more state jurisdiction.””
“Water does not flow upstream.”
“I’ll perform my own Phase II investigation, but the it will be private.”
“We’re looking into it.”
“We cannot discuss this - it’s under litigation.”

On December 22, 2006, Attorney General Wynoff wrote Jimmy Pflueger about Kaloko:
Third, we are informed of a second source of water to the reservoir, of unknown origin.  Please provide all available information as to this source, including date of installation, plans and specifications for its construction, origin of the water, any documentation as to authorization for use or diversion of the water, and your plans (if any) to cease and desist receiving water from this second source.

There’s plenty information about this un-permitted ditch now.  There is no authorization for the use of this water.  Why does Jimmy Pflueger get to decide when (if ever) he plans to cease and desist receiving and selling stolen water?  When is the State going to remove this illegal, un-permitted, un-engineered ditch system and restore  the flow of Moloa`a/Kalua`a Streams back into the Moloa`a ahupua`a?  Our downstream neighbor had to water the o`opu in what used to be Moloa`a Stream with a garden hose from his well to keep them alive.  The o`opu need their water.  We need our water back now.  We cannot wait for water pending litigation against Jimmy Pflueger.  Nobody downstream is safe until these un-engineered ditches are removed.  Ua hewa i ka wai.  Nobody has been listening.

I realize this has gone on for a decade under the previous administrations, before being presented to you, but I hope you can realize how the piracy of public trust resources cannot be allowed to continue.  Mahalo for taking quick action and putting an end to this decade of deception and denial. We all live downstream.

Hope Kallai