WELL I WONDER, WONDER, WONDER, WONDER WHO: The "fact" that Kaua`i Police Department (KPD) Chief Darryl Perry "is on leave" seems to be the only thing that is clear after chapter two of the latest departmental saga hit the streets.
Chapter one was the leave that was apparently forced on two assistant chiefs by Perry on Tuesday. But as to how Perry wound up on leave there seems to be about as much confusion in the press as there is silence on the part of the administration of Mayor Bernard Carvalho Jr.
The first report of Perry's "situation" came from a county press release last night and simply said:
As of this morning, Police Chief Darryl Perry is on leave and Deputy Police Chief Michael Contrades will serve as Acting Police Chief until further notice.
The local Kaua`i newspaper claims to have reached Perry who told them that indeed it was hizzonah who did the deed saying:
While the county offered no explanation in terse statements that were released Tuesday and Wednesday, Perry said late Wednesday that“the truth will come out,” and that the actions were brought about by the mayor’s office.
The pay-walled Honolulu Star Advertiser, while detailing some of the ways past chiefs have departed on less than friendly terms with the county apparently reached county KPD spokesperson Sarah Blane who told them "she was not told who placed Perry on leave."
Although the county claims it cannot say anything because it is a "personnel matter" the sunshine law says that, if appropriate in the specific case, the public's interest in the information can trump privacy concerns. That, however, would be a matter for the toothless Office of Information Practices (OIP) to determine and, even if they had fangs, they seem to work at glacial speeds.
So who dunnit?
Well if it was the mayor all we can say is "here we go again."
According to Section 11-4 of the Kaua`i County Charter
The chief of police shall be appointed by the police commission. He may be removed by the police commission only after being given a written statement of the charges against him and a hearing before the commission.
And while the power to place the chief on leave is not directly addressed, Police Commissions statewide are, according to state law, supposed to be autonomous in their dealings with the police chiefs.
But while it's not within Carvalho's powers to remove- or even place on leave- the chief, it's not for lack of wishing on his part. He has been engaged in a campaign to have the state law changed so that the chiefs of the police departments across the state would be hired and fired by the mayors, making the police commissions little more than advisory boards.
It may be of note that both Perry and the commission have gone on the record opposing Carvalho's would-be new law.
A perusal of the police commission's most recent agenda produces no recent "emergency" meeting where any executive session placing Perry on leave might have taken place and to do so would have violated the state sunshine law anyway which requires six days notice before a meeting can be held.
However this morning at 8:15 an agenda for a meeting scheduled for next Tuesday February 7- the first day one could be legally held- calls for no less than three "executive sessions."
The first, ES 5 reads in part
Pursuant to Hawai`i Revised Statutes, §92-4, 92-5(a) (2) and (4), the purpose of this Executive Session is for Mayor Bernard P. Carvalho Jr. to provide the Commission with a briefing regarding personnel and/or disciplinary actions related to notarized complaint filed with the Police Commission on 01/31/12, and for the Commission to further consider and discuss said personnel and/or disciplinary actions.
While it's not clear what "disciplinary action" Carvalho has taken it seems pretty clear it refers to placing Perry on leave because the next item, ES 6 reads
Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities and liabilities as they relate to Section 11.04 of the County of Kaua'i Charter
Charter section 11-4 of course is the one cited above about the hiring and firing of the chief being the sole kuleana of the police commission.
The third item on the 2/7 agenda reads:
Pursuant to Hawai`i Revised Statutes, §92-4 and 92-5 (a) (4), the purpose of this Executive Session is for the Commission to consult with its attorney as to its powers, duties, privileges, immunities, and liabilities as they relate to Rule 6-1.f of the Rules of the Kaua'i County Police Commission.
But if you thought that would clarify what was going on you'll be sorely disappointed because Rule 6 is entitled "Control, Management And Direction Of The Department" and 6-1 is an incredibly long and list of the "Powers, Duties and Responsibilities of the Police Commission."
Although 6-1-3 does deal with "Investigation of Charge (sic)" it does not directly address what happens if the target of the investigation is the chief.
So what does it matter who put Perry on leave?
Well if past is prologue the county might just be in for another big settlement should Perry decide to sue for denying his rights under the charter.
To make a long story short, back when George Freitas was the chief and Maryanne Kusaka was the mayor- this during the time when Kusaka was allegedly covering up for her buddies with grubbing and grading violations by allegedly telling a Department of Public Works engineer to butt out when it came to Jimmy Pflueger and the Ka Loko Dam area that later burst during a storm killing seven people- Kusaka "removed" Freitas from his office.
She apparently got the long time secretary for Freitas and past chiefs to take his gun and badge from his desk and give it to her. There was a long list of serious charges made but when it was all over the only one the police commission upheld was that Freitas had given a ride to his girlfriend in his police car.
And in the end Freitas settled for a reported half-million dollar golden parachute and "retiring" from the force.
Hard to say what will happen tomorrow- or next Tuesday for that matter because the usual open session for decision making after executive sessions on complaint against KPD personnel is decidedly missing from the 2/7 agenda.
But one thing is clear- in his notorious quest for power Carvalho is certainly putting the county in jeopardy by usurping the commission's oversight.
Showing posts with label Jimmy Pflueger. Show all posts
Showing posts with label Jimmy Pflueger. Show all posts
Thursday, February 2, 2012
Thursday, September 15, 2011
HOOK, LINE AND STINKER
HOOK, LINE AND STINKER: During the last month we've used the bill (#2149) to allow camping at Lydgate Park as a kind of case study of the long-practiced and well-honed dance of the headless chickens used by the last three Kaua`i administrations- especially in the Department of Public Works (DPW) and the now spun-off Department of Parks and Recreation (DP&R)- to run out the clock on county council oversight of various and sundry mismanagement schhemes.
But the manner in which DP&R Director Lenny Rapozo's final "rope-a-dope" performance yielded a split decision in favor of the bill's passage last Wednesday, gave a whole meaning to "don't ask me- I'm only in charge here."
Of course Rapozo's use of "the fog" and the "I not here" method of administrative oversight could not have been accomplished without council allies willing to look the other way at the misrepresentations and outright lies as well as the lack of any semblance of competency of Rapozo and his underlings.
After months of non-answers to "the eight questions" that had been repeatedly asked, in writing, of Rapozo, the bill was moved out of committee to the full council where last Wednesday despite the fact that there were amendments pending and it was no where near ready for a vote... something that has inflamed Chair Jay Furfaro's hair on many an occasion in the past.
Rapozo appeared after handing in the alleged answers just that morning, claiming he never had the questions- many of which had been sent in writing months ago- until the previous Friday. And, much to Furfaro's chagrin, they hadn’t even been distributed to councilmembers yet.
The old bait and switch made an appearance too. Seems the originator of "the fog" himself, perennial county appointee Ian Costa who now serves as Rapozo's deputy, had unexpectedly shown up instead of Rapozo the week before with Rapozo conveniently on the mainland, allowing Rapozo to claim he had no idea what had happened the previous week.
As we've previously described, it's a classic move Costa developed during the year-long "Developers Gone Wild," grubbing and grading hearings before the council in the 90's which exposed the early misdeeds of Jimmy Pflueger preceding the deadly Ka Loko Dam break for which Pflueger is scheduled to stand trial for murder later this or next year.
The session began with Council Chair Jay Furfaro waving around what a real plan would look like, taken from a Virginia Beach Virginia campground saying "can you kokua me... this is what I'm looking for Lenny."
The questions dealt with almost everything imaginable from lack of a sufficient number of toilets to insufficient staffing for maintenance and security and were seemingly at least partially a result of there being no written plan to make sure the professed "work-class facility" would even be run in an organized and coherent manager.
But try as he might, Furfaro could not get a commitment from Rapozo to put together such a plan by the time camping was scheduled to begin, 60 days after the passage of the bill.
Finally after twenty minutes of trying to get such a commitment from Rapozo, Furfaro demonstrated the council's archetypical part in the avoidance scheme by declaring Rapozo's "no" to be a "yes."
Of course the run-around can't properly function without an administration shill. The role was made for Councilmember Tim Bynum whose "don't confuse me with the facts" rhetoric, previously honed on the issue of the bike path, consisted of declaring the questions to have been answered already- whether they were or not- and calling all criticism of the not-ready-for-prime-time "plan" to be too "meticulous."
This left an opening for Councilmember Mel Rapozo to perform one of his classic ape-like chest beating routines consisting of lines like "That's our job, to be meticulous... guilty as charged."
But perhaps the most Kafkaesque scene in the melodrama played out over the issue of the "fishermen" who have traditionally frequented the area since, well, forever.
As championed by Councilperson Kipukai Kuali`i the council went back and forth, working to make sure fishers could go to the campground and essentially camp out while fishing without really being official campers.
Of course the task was impossible on its face. How do you allow people to stay overnight in the campground, in their tents, as long as they leave their fishing poles stuck in the sand with the line in the water- as described by Kuali`i- and then distinguish who is actually camping without a permit and who is simply fishing.
The council has been asking Lenny Rapozo- and Costa- for the actual metes and bounds of the camping area rather than providing the cruddy little map with dotted lines that had been made part of the bill. Mel Rapozo- an ex-cop- described the absurdity of the prosecution going to court with such a map and how any good attorney could raise enough questions to make it unenforceable.
The answer apparently was simply, as stated by many, that the standard was "we know who is camping and who is fishing."
Oh great. The island isn't sufficiently wracked with charges of "reverse racism" by the increasing number of uptight, malahini mainlanders who can't distinguish between the word "haole" as used descriptively and the more provocative "stupid f-ing haole." Now we have an area where the line between campers and fishermen is going to be- at least in their eyes- as much a factor of the shade of their skin as anything else.
County Attorney Al Castillo didn't really help by hemming and hawing and finally maintaining that it didn't matter what the law said as long as there was "sufficient notice" in the form of signage to tell the users what made a fisherman a fisherman and what made a camper a camper.
As if.
Finally, the answer was to be as ambiguous as possible and the council inserted language that allows "fishermen" to "fish" any place in the campgrounds where there isn't an actual designated camp site.
However all this probably doesn't matter one whit because, it was revealed, the county's park rangers are never there between 10:30 p.m. and 4 a.m. leaving enforcement of the unenforceable provision an academic matter anyway.
The bill passed with Kuali`i and Mel Rapozo voting against it and now it's up to the DP&R to promulgate administrative rules- which promise to be as vague as the bill- in the next two months and decide which parts of the campground to "open for camping" with no real idea of what is going to happen, in a classic Kaua`i County "ready, fire, aim" manner.
But whatever happens you can bet dollars to donuts that we haven't heard the end of the seven-year saga, especially when the first "you're not fishing, you're camping- I can tell by the color of your skin" ticket is issued.
-------
Note- We're working with a new editor whose schedule is malleable so, although we intend to keep to the 1 p.m. press time, there may be days when it is decidedly later.
But the manner in which DP&R Director Lenny Rapozo's final "rope-a-dope" performance yielded a split decision in favor of the bill's passage last Wednesday, gave a whole meaning to "don't ask me- I'm only in charge here."
Of course Rapozo's use of "the fog" and the "I not here" method of administrative oversight could not have been accomplished without council allies willing to look the other way at the misrepresentations and outright lies as well as the lack of any semblance of competency of Rapozo and his underlings.
After months of non-answers to "the eight questions" that had been repeatedly asked, in writing, of Rapozo, the bill was moved out of committee to the full council where last Wednesday despite the fact that there were amendments pending and it was no where near ready for a vote... something that has inflamed Chair Jay Furfaro's hair on many an occasion in the past.
Rapozo appeared after handing in the alleged answers just that morning, claiming he never had the questions- many of which had been sent in writing months ago- until the previous Friday. And, much to Furfaro's chagrin, they hadn’t even been distributed to councilmembers yet.
The old bait and switch made an appearance too. Seems the originator of "the fog" himself, perennial county appointee Ian Costa who now serves as Rapozo's deputy, had unexpectedly shown up instead of Rapozo the week before with Rapozo conveniently on the mainland, allowing Rapozo to claim he had no idea what had happened the previous week.
As we've previously described, it's a classic move Costa developed during the year-long "Developers Gone Wild," grubbing and grading hearings before the council in the 90's which exposed the early misdeeds of Jimmy Pflueger preceding the deadly Ka Loko Dam break for which Pflueger is scheduled to stand trial for murder later this or next year.
The session began with Council Chair Jay Furfaro waving around what a real plan would look like, taken from a Virginia Beach Virginia campground saying "can you kokua me... this is what I'm looking for Lenny."
The questions dealt with almost everything imaginable from lack of a sufficient number of toilets to insufficient staffing for maintenance and security and were seemingly at least partially a result of there being no written plan to make sure the professed "work-class facility" would even be run in an organized and coherent manager.
But try as he might, Furfaro could not get a commitment from Rapozo to put together such a plan by the time camping was scheduled to begin, 60 days after the passage of the bill.
Finally after twenty minutes of trying to get such a commitment from Rapozo, Furfaro demonstrated the council's archetypical part in the avoidance scheme by declaring Rapozo's "no" to be a "yes."
Of course the run-around can't properly function without an administration shill. The role was made for Councilmember Tim Bynum whose "don't confuse me with the facts" rhetoric, previously honed on the issue of the bike path, consisted of declaring the questions to have been answered already- whether they were or not- and calling all criticism of the not-ready-for-prime-time "plan" to be too "meticulous."
This left an opening for Councilmember Mel Rapozo to perform one of his classic ape-like chest beating routines consisting of lines like "That's our job, to be meticulous... guilty as charged."
But perhaps the most Kafkaesque scene in the melodrama played out over the issue of the "fishermen" who have traditionally frequented the area since, well, forever.
As championed by Councilperson Kipukai Kuali`i the council went back and forth, working to make sure fishers could go to the campground and essentially camp out while fishing without really being official campers.
Of course the task was impossible on its face. How do you allow people to stay overnight in the campground, in their tents, as long as they leave their fishing poles stuck in the sand with the line in the water- as described by Kuali`i- and then distinguish who is actually camping without a permit and who is simply fishing.
The council has been asking Lenny Rapozo- and Costa- for the actual metes and bounds of the camping area rather than providing the cruddy little map with dotted lines that had been made part of the bill. Mel Rapozo- an ex-cop- described the absurdity of the prosecution going to court with such a map and how any good attorney could raise enough questions to make it unenforceable.
The answer apparently was simply, as stated by many, that the standard was "we know who is camping and who is fishing."
Oh great. The island isn't sufficiently wracked with charges of "reverse racism" by the increasing number of uptight, malahini mainlanders who can't distinguish between the word "haole" as used descriptively and the more provocative "stupid f-ing haole." Now we have an area where the line between campers and fishermen is going to be- at least in their eyes- as much a factor of the shade of their skin as anything else.
County Attorney Al Castillo didn't really help by hemming and hawing and finally maintaining that it didn't matter what the law said as long as there was "sufficient notice" in the form of signage to tell the users what made a fisherman a fisherman and what made a camper a camper.
As if.
Finally, the answer was to be as ambiguous as possible and the council inserted language that allows "fishermen" to "fish" any place in the campgrounds where there isn't an actual designated camp site.
However all this probably doesn't matter one whit because, it was revealed, the county's park rangers are never there between 10:30 p.m. and 4 a.m. leaving enforcement of the unenforceable provision an academic matter anyway.
The bill passed with Kuali`i and Mel Rapozo voting against it and now it's up to the DP&R to promulgate administrative rules- which promise to be as vague as the bill- in the next two months and decide which parts of the campground to "open for camping" with no real idea of what is going to happen, in a classic Kaua`i County "ready, fire, aim" manner.
But whatever happens you can bet dollars to donuts that we haven't heard the end of the seven-year saga, especially when the first "you're not fishing, you're camping- I can tell by the color of your skin" ticket is issued.
-------
Note- We're working with a new editor whose schedule is malleable so, although we intend to keep to the 1 p.m. press time, there may be days when it is decidedly later.
Wednesday, August 17, 2011
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.
----
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
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.
----
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
Friday, October 1, 2010
SNIPE HUNT
SNIPE HUNT: When it comes to playing the middle ground in the old “corruption vs. incompetence” game, the Kaua`i Department of Public Works (DPW) has had years of practical experience in befuddling the naturally befuddled county council.
If we had a dollar every time we had to ask of the county engineer and his underlings “are you crooked or just stupid” we’d be able to afford a new computer to replace the 2001 dinosaur on which we do our daily hunt and peck.
So it comes as no surprise that request for the scheduled executive session (ES) on the plastic bag ban ordinance that we wrote about Wednesday was a result of the usual inability of the DPW to do their job.
Although County Attorney (CA) Al Castillo was his usual cryptic self Wednesday in requesting an ES to tell the council about some sort of imagined liability contained in the current ordinance, the council, amazingly enough- refused to go behind closed doors to discuss what most called pubic policy.
But through questioning the reason Castillo was there in the first place became obvious- despite having a year and a half to promulgate Chapter 91 administrative rules to flesh out the details of the ban, the DPW hadn’t even begun the process and were now arguing about what the “intent” of the bill was instead of just reading and implementing it.
Actually, as member of the public pointed out, the intent of the ordinance was actually written into the bill which say it’s designed to move people to use cloth bags.
The council ended up “requesting the presence” of a DPW representative at next week’s pubic works committee meeting to explain why they haven’t begun the process that usually takes a few months, considering that the ordinance takes effect next January.
Part of the problem comes from the fact that rather than banning plastic bags entirely the ordinance was designed allow “biodegradable” plastic bags specifically banning ones that contain “polymers derived from fossil fuels”.
But, in fact, as it stands today nobody makes plastic bags that don’t contain fossil fuel polymers. And there is no standard as to what a “biodegradable plastic bag” is anyway which is why the council came up with their own definition of what they were banning.
We suspect that Castillo’s “liability” problem is that while the bill allows the use of certain plastic bags it makes it impossible to obtain bags that meet the standard.
It would be like allowing the use of cell phones while driving but only if they were made on the moon. Although someday there may be some moon-manufactured cell phone it ain’t gonna happen an time soon.
We also suspect that this was precisely why the supermarkets and the Chamber of Commerce lobbied so hard- and successfully- to allow for “biodegradable plastic”, knowing that there was no such thing and that they could come back close to the deadline and threaten a lawsuit with a CA that’s always doing everything he can to influence pubic policy when someone comes up with some cockamamie legal argument.
But, as we said, the fault really lies with the DPW which has shunned promulgating “ad rules” for years... sometimes decades.
We’re still waiting for the regulations for the infamous grubbing and grading (G&G) rules to flesh out the way they handle violations of the ordinance that was passed following the extensive “Developers Gone Wild” hearings in the late 90’s and early ’00’s.
At the time it became apparent to an astonished council that there was no official process for enforcing G&G violations and decisions were being made arbitrarily and capriciously... or not at all.
One of the problems in that was that DPW officials claimed they were unable to check out complaints of violations of the ordinance that was in place at the time. That conveniently allowed them to ignore violations at the instructions of then Mayor Maryann Kusaka who has been extensively alleged to have instructed the DPW to ignore violations by the likes of “friends of Maryanne” Jimmy Pflueger and Tom McCloskey.
Of course that led to the Ka Loko dam break and the county’s multi-million dollar settlement apparently for ignoring violations that led to it.
But guess what? Although the council included many things in the G&G bill itself that would normally be done through administrative rules they couldn’t really be expected to do it all,
They got guarantees from DPW that the rules would be done in six months from passage. And the last time we checked there still aren’t any.
The DPW was actually scheduled for a management audit more than once. In fact prior to that there was an aborted attempt at a charter section 3.17 council official investigation of the massive department.
Those half-hearted efforts- done only in response to public political pressure- eventually led to the establishment of the new Office of the County Auditor where, many hoped, the first order of business would be to look into the incompetence (or is it corruption?) of the DPW.
But as yet, it doesn’t even seem to appear on the radar screen of former Deputy County clerk and now Auditor, Ernie Passion.
The problem seems to come down to this attitude on the council that once they pass a new law they not only expect but are confident that the administration will, actually enforce it.
The fact that that is rarely the case has gotta make you ask whether the council too is corrupt or just incompetent in their administrative oversight role.
Either way it’s the public that has to suffer through it.
If we had a dollar every time we had to ask of the county engineer and his underlings “are you crooked or just stupid” we’d be able to afford a new computer to replace the 2001 dinosaur on which we do our daily hunt and peck.
So it comes as no surprise that request for the scheduled executive session (ES) on the plastic bag ban ordinance that we wrote about Wednesday was a result of the usual inability of the DPW to do their job.
Although County Attorney (CA) Al Castillo was his usual cryptic self Wednesday in requesting an ES to tell the council about some sort of imagined liability contained in the current ordinance, the council, amazingly enough- refused to go behind closed doors to discuss what most called pubic policy.
But through questioning the reason Castillo was there in the first place became obvious- despite having a year and a half to promulgate Chapter 91 administrative rules to flesh out the details of the ban, the DPW hadn’t even begun the process and were now arguing about what the “intent” of the bill was instead of just reading and implementing it.
Actually, as member of the public pointed out, the intent of the ordinance was actually written into the bill which say it’s designed to move people to use cloth bags.
The council ended up “requesting the presence” of a DPW representative at next week’s pubic works committee meeting to explain why they haven’t begun the process that usually takes a few months, considering that the ordinance takes effect next January.
Part of the problem comes from the fact that rather than banning plastic bags entirely the ordinance was designed allow “biodegradable” plastic bags specifically banning ones that contain “polymers derived from fossil fuels”.
But, in fact, as it stands today nobody makes plastic bags that don’t contain fossil fuel polymers. And there is no standard as to what a “biodegradable plastic bag” is anyway which is why the council came up with their own definition of what they were banning.
We suspect that Castillo’s “liability” problem is that while the bill allows the use of certain plastic bags it makes it impossible to obtain bags that meet the standard.
It would be like allowing the use of cell phones while driving but only if they were made on the moon. Although someday there may be some moon-manufactured cell phone it ain’t gonna happen an time soon.
We also suspect that this was precisely why the supermarkets and the Chamber of Commerce lobbied so hard- and successfully- to allow for “biodegradable plastic”, knowing that there was no such thing and that they could come back close to the deadline and threaten a lawsuit with a CA that’s always doing everything he can to influence pubic policy when someone comes up with some cockamamie legal argument.
But, as we said, the fault really lies with the DPW which has shunned promulgating “ad rules” for years... sometimes decades.
We’re still waiting for the regulations for the infamous grubbing and grading (G&G) rules to flesh out the way they handle violations of the ordinance that was passed following the extensive “Developers Gone Wild” hearings in the late 90’s and early ’00’s.
At the time it became apparent to an astonished council that there was no official process for enforcing G&G violations and decisions were being made arbitrarily and capriciously... or not at all.
One of the problems in that was that DPW officials claimed they were unable to check out complaints of violations of the ordinance that was in place at the time. That conveniently allowed them to ignore violations at the instructions of then Mayor Maryann Kusaka who has been extensively alleged to have instructed the DPW to ignore violations by the likes of “friends of Maryanne” Jimmy Pflueger and Tom McCloskey.
Of course that led to the Ka Loko dam break and the county’s multi-million dollar settlement apparently for ignoring violations that led to it.
But guess what? Although the council included many things in the G&G bill itself that would normally be done through administrative rules they couldn’t really be expected to do it all,
They got guarantees from DPW that the rules would be done in six months from passage. And the last time we checked there still aren’t any.
The DPW was actually scheduled for a management audit more than once. In fact prior to that there was an aborted attempt at a charter section 3.17 council official investigation of the massive department.
Those half-hearted efforts- done only in response to public political pressure- eventually led to the establishment of the new Office of the County Auditor where, many hoped, the first order of business would be to look into the incompetence (or is it corruption?) of the DPW.
But as yet, it doesn’t even seem to appear on the radar screen of former Deputy County clerk and now Auditor, Ernie Passion.
The problem seems to come down to this attitude on the council that once they pass a new law they not only expect but are confident that the administration will, actually enforce it.
The fact that that is rarely the case has gotta make you ask whether the council too is corrupt or just incompetent in their administrative oversight role.
Either way it’s the public that has to suffer through it.
Thursday, August 26, 2010
INTO THE WAY BACK MACHINE
INTO THE WAY BACK MACHINE: Not much happens at the legislature between sessions especially things that concern little Kaua`i.
But while the state’s eyes are focused on the senate hearings for the next Hawai`i supreme court chief justice one of our favorite senatorial rabblerousing monkey-wrenchers is holding a hearing of her own with an agenda that will certainly pop some local eyes.
Next Tuesday at 1 p.m. Chair Donna Mercado Kim’s Senate Ways and Means Committee will holding an Informational Briefing (click for testimony just before the hearing) investigating, among other things,
6. Lihue Airport –
a. Status of the employee embezzlement investigation
b. Explanation of the overpayment, reinstatement, and settlement of the employee that walked off the job
c. Status of the Mitigation of TSA (Transportation Security Administration) fines on Kauai – mitigation
d. Costs to the State, airlines, and travelers from the security breach at Lihue Airport on September 11, 2009
7. Grove Farm – status of the helipad expansion and status of information requested by the Committee in letter dated July 22, 2010, regarding enhancements to the access points for the Grove Farm land , the value and costs of the enhancements, and whether an enhancement fee was negotiated as part of the contract
Many on Kaua`i have heard about the Grove Farm (GF) fiasco where former county Director of Finance and now GF vice president Mike Tressler bamboozled the state into paying way more for a parcel of land than it was worth leading to the resignation of the state airports operations chief.
But the previously unreported incidents such as embezzlement and the other cryptic references to TSA misconduct are not any surprise to those who’ve followed the origins and evolution of the security crew at Lihu`e airport since the federalization of airport safety.
It’s no shock that there’s apparently elevated if not rampant corruption to those who remember how the TSA was originally staffed in the days after 9/11.
The administration of Mayor Maryanne Kusaka was coming to an end and there was no dearth of disgraced henchmen and women who had served the queen and worn out their welcome in county government, even with Kusaka’s handpicked successor Bryan Baptiste taking office in December of 2002.
There was even talk of mass indictments with then-new Councilperson Mel Rapozo telling the public that he had spoken to then-Prosecutor Michael Soong who was ready to prosecute Kusaka and her cronies for a plethora of alleged crimes from Kusaka’s personally-directed illegal grubbing and grading above Kuna (Donkey) Beach to her alleged instructions to Department of Public Works officials to ignore any violations of law by land-raping developers like Jimmy Pflueger and Tom McCloskey- both of whom had contributed nicely to Kusaka’s favorite charity.
It was then that Kusaka used her Republican connections to clear the way for members of the exodus to find a path to the new George W. Bush administration-created TSA offices at the airport where scandal-tainted Kusaka cronies found employment despite their misdeeds.
The Lihu`e Airport TSA has drifted in and out of the headlines for cronyism, nepotism and the resultant corruption ever since. We’ll be eager to see what Senator Kim has to say about the latest outrage but we suspect that it just might be a symptom of the Lihu`e TSA’s origins almost a decade ago.
But while the state’s eyes are focused on the senate hearings for the next Hawai`i supreme court chief justice one of our favorite senatorial rabblerousing monkey-wrenchers is holding a hearing of her own with an agenda that will certainly pop some local eyes.
Next Tuesday at 1 p.m. Chair Donna Mercado Kim’s Senate Ways and Means Committee will holding an Informational Briefing (click for testimony just before the hearing) investigating, among other things,
6. Lihue Airport –
a. Status of the employee embezzlement investigation
b. Explanation of the overpayment, reinstatement, and settlement of the employee that walked off the job
c. Status of the Mitigation of TSA (Transportation Security Administration) fines on Kauai – mitigation
d. Costs to the State, airlines, and travelers from the security breach at Lihue Airport on September 11, 2009
7. Grove Farm – status of the helipad expansion and status of information requested by the Committee in letter dated July 22, 2010, regarding enhancements to the access points for the Grove Farm land , the value and costs of the enhancements, and whether an enhancement fee was negotiated as part of the contract
Many on Kaua`i have heard about the Grove Farm (GF) fiasco where former county Director of Finance and now GF vice president Mike Tressler bamboozled the state into paying way more for a parcel of land than it was worth leading to the resignation of the state airports operations chief.
But the previously unreported incidents such as embezzlement and the other cryptic references to TSA misconduct are not any surprise to those who’ve followed the origins and evolution of the security crew at Lihu`e airport since the federalization of airport safety.
It’s no shock that there’s apparently elevated if not rampant corruption to those who remember how the TSA was originally staffed in the days after 9/11.
The administration of Mayor Maryanne Kusaka was coming to an end and there was no dearth of disgraced henchmen and women who had served the queen and worn out their welcome in county government, even with Kusaka’s handpicked successor Bryan Baptiste taking office in December of 2002.
There was even talk of mass indictments with then-new Councilperson Mel Rapozo telling the public that he had spoken to then-Prosecutor Michael Soong who was ready to prosecute Kusaka and her cronies for a plethora of alleged crimes from Kusaka’s personally-directed illegal grubbing and grading above Kuna (Donkey) Beach to her alleged instructions to Department of Public Works officials to ignore any violations of law by land-raping developers like Jimmy Pflueger and Tom McCloskey- both of whom had contributed nicely to Kusaka’s favorite charity.
It was then that Kusaka used her Republican connections to clear the way for members of the exodus to find a path to the new George W. Bush administration-created TSA offices at the airport where scandal-tainted Kusaka cronies found employment despite their misdeeds.
The Lihu`e Airport TSA has drifted in and out of the headlines for cronyism, nepotism and the resultant corruption ever since. We’ll be eager to see what Senator Kim has to say about the latest outrage but we suspect that it just might be a symptom of the Lihu`e TSA’s origins almost a decade ago.
Wednesday, March 3, 2010
RABID REPROBATE
RABID REPROBATE: As November approaches it gets harder and harder to stomach Governor Linda Lingle and her corrupt, incompetent, self serving, government-by-sound-bite administration.
It’s guaranteed that the closer the end of her slash and burn reign of terror, the more bizarre it will get.
Now she’s claiming that State Auditor supreme Marion Higa is the one who is incompetent and does "shoddy," "unprofessional" and "politically motivated." work for detailing the way the state, seemingly illegally- put taxpayer money into hair-brained investments that ended up essentially frozen when they got taken by some slick wall street firms, selling supposedly liquid investments that have suddenly become all but worthless if we need the money right now... which apparently we do.
The report is only a draft and apparently unavailable in full but media accounts show how, as usual, Lingle answers charges never made and uses personal attacks to substitute for facts, just like she did the last time Higa uncovered corruption/incompetence (take your pick) in Ted Liu’s Department of Business, Economic Development and Tourism when Higa said Liu “should be relieved of his duties due to a ‘troubling pattern on nondisclosure’ of financial details surrounding an overseas trade mission and federal grant program” according to today’s press account.
Higa is know nationally as one of the best at what she does and Lingle’s known as one of the worst- except among the delusional Rush-Rove-Chaney crowd- so it’s pretty obvious why Lingle is left with nothing to do but to attack Higa personally when she “outs” Lingle’s Department of Budget and Finance team as the boobs they have shown themselves to be in this and most other fiscal and financial management blunders.
We’re lucky to have Higa statewide but when it comes to our own newly appointed auditor we’ve yet to see anything out of former Deputy County Clerk Ernie Pasion’s County Auditor’s office except that he’s searching for one.. an office that is.
But even once he sets up shop we don’t expect much from affable, good old boy Ernie whose former job consisted of serving the council in the role of boat-rocking attendant.
The appointment of Pasion was one of the biggest slaps-in-the-face of good governance advocates who waited years through the “hold me back boys” antics of some of the beaten down, former council reformers who, due to pubic outrage almost 10 years ago over illegal land rape by the likes of Jimmy Pflueger and Tom McCloskey, first threatened and funded an investigation under charter provision- 3.17 which allows the council to perform administration investigations.
But there was so much screwed up stuff in the Department of Public Works under Mayor Maryanne Kusaka’s administration that they couldn’t decide on what to investigate and then called the matter too expensive anyway.
Next they set up and funded an auditor position by ordinance and then never appointed anyone. That was followed by the last and latest stall tactic of placing a charter amendment to create the new County Auditor position before the people. which passed last fall.
While the promise was to set up a “Marion Higa-style-auditor” the search for a tough, competent, experienced and independent auditor started and ended in the council chambers with the appointment of someone who could be counted on to continue his anti-boat rocking activities when wave-making is exactly what is called for in a management auditor.
For all those who think good governance lies in passing laws and charter amendments- like the one to peg tourism development to growth figures in the general plan, which has apparently died a death by disregard- it’s time to recognize that until we say “enough” on election day we’ll never escape the management-by-incompetence and corruption typified by our current gang of self-serving incumbents whether at the county council/mayor or the state representative/senator/governor level.
---------
We’re losing our editor for the next few weeks to a mainland jaunt so our incomprehensibly long sentences will probably be even more unwieldy and the typos and spell-checker caused glitches will most likely proliferate until then. We’re also going to be a little more intermittent in posting over that period, what with so much college basketball and so little time. Go ‘Cuse.
It’s guaranteed that the closer the end of her slash and burn reign of terror, the more bizarre it will get.
Now she’s claiming that State Auditor supreme Marion Higa is the one who is incompetent and does "shoddy," "unprofessional" and "politically motivated." work for detailing the way the state, seemingly illegally- put taxpayer money into hair-brained investments that ended up essentially frozen when they got taken by some slick wall street firms, selling supposedly liquid investments that have suddenly become all but worthless if we need the money right now... which apparently we do.
The report is only a draft and apparently unavailable in full but media accounts show how, as usual, Lingle answers charges never made and uses personal attacks to substitute for facts, just like she did the last time Higa uncovered corruption/incompetence (take your pick) in Ted Liu’s Department of Business, Economic Development and Tourism when Higa said Liu “should be relieved of his duties due to a ‘troubling pattern on nondisclosure’ of financial details surrounding an overseas trade mission and federal grant program” according to today’s press account.
Higa is know nationally as one of the best at what she does and Lingle’s known as one of the worst- except among the delusional Rush-Rove-Chaney crowd- so it’s pretty obvious why Lingle is left with nothing to do but to attack Higa personally when she “outs” Lingle’s Department of Budget and Finance team as the boobs they have shown themselves to be in this and most other fiscal and financial management blunders.
We’re lucky to have Higa statewide but when it comes to our own newly appointed auditor we’ve yet to see anything out of former Deputy County Clerk Ernie Pasion’s County Auditor’s office except that he’s searching for one.. an office that is.
But even once he sets up shop we don’t expect much from affable, good old boy Ernie whose former job consisted of serving the council in the role of boat-rocking attendant.
The appointment of Pasion was one of the biggest slaps-in-the-face of good governance advocates who waited years through the “hold me back boys” antics of some of the beaten down, former council reformers who, due to pubic outrage almost 10 years ago over illegal land rape by the likes of Jimmy Pflueger and Tom McCloskey, first threatened and funded an investigation under charter provision- 3.17 which allows the council to perform administration investigations.
But there was so much screwed up stuff in the Department of Public Works under Mayor Maryanne Kusaka’s administration that they couldn’t decide on what to investigate and then called the matter too expensive anyway.
Next they set up and funded an auditor position by ordinance and then never appointed anyone. That was followed by the last and latest stall tactic of placing a charter amendment to create the new County Auditor position before the people. which passed last fall.
While the promise was to set up a “Marion Higa-style-auditor” the search for a tough, competent, experienced and independent auditor started and ended in the council chambers with the appointment of someone who could be counted on to continue his anti-boat rocking activities when wave-making is exactly what is called for in a management auditor.
For all those who think good governance lies in passing laws and charter amendments- like the one to peg tourism development to growth figures in the general plan, which has apparently died a death by disregard- it’s time to recognize that until we say “enough” on election day we’ll never escape the management-by-incompetence and corruption typified by our current gang of self-serving incumbents whether at the county council/mayor or the state representative/senator/governor level.
---------
We’re losing our editor for the next few weeks to a mainland jaunt so our incomprehensibly long sentences will probably be even more unwieldy and the typos and spell-checker caused glitches will most likely proliferate until then. We’re also going to be a little more intermittent in posting over that period, what with so much college basketball and so little time. Go ‘Cuse.
Friday, February 5, 2010
LYIN’ DOG AND SLEEPIN’ BABY
LYIN’ DOG AND SLEEPIN’ BABY: Our Monday ridicule of the county’s explanation for why they paid $7.5 million in the Ka Loko Dam tragedy lawsuit while the state only paid $1.5 million elicited two quite opposite responses from readers.
While one close to the story said we pretty much got it right another challenged our interpretation asking for specific references.
In attempting to debunk County Attorney Al Castillo’s contention that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” and show it had everything in the world to do with culpability we noted that there had to be some kind of gross misconduct or even malfeasance on the part of the state to override any general immunity.
So we turned to the Hawaii Dam and Reservoir Safety Act (DRSA [§179D]) and found yes, the state has a pretty much blanket immunity regarding dams and reservoirs in that “no action or failure to act under this chapter shall be construed to create any liability in the State” [§179D-4] .
And yes that can be overridden by “willful acts or negligence by the board or its agents” [§179D-6] in certain situations- the precise situation that occurred between the state and the county in failing to “enter upon such private property of the dam or reservoir”.
In other words it’s even worse than we suspected in terms of culpability of the county because it seems it was indeed the county’s willful inactions that precipitated the state’s liability in the case.
Those that sat through the marathon year-and-a-half “Developers Gone Wild” Kaua`i County Council grubbing and grading investigations will remember that a good deal of it dealt with asking then-Acting County Engineer Ian Costa and Chief of Engineering Division Wally Kudo why the heck they didn’t just go onto Jimmy Pflueger’s (and Tom McCloskey’s) properties and inspect them.
Though they had the legal right to do so they claimed it was a lot more difficult for them to do it than the state, needing assistance from the county attorney’s office and the courts.
At that point members of the council got them to say they would try to work with the Department of and Natural Resources (DLNR) which oversees the DRSA and is specifically “authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter”.
Presuming that, under pressure from the council- and despite the interference of then Mayor Maryanne Kusaka who according to an internal memo from one of Kudo’s underlings squelched any action against landowner Jimmy Pflueger- Kudo and Costa contacted DLNR to have them assist them, and again presuming that the DLNR failed to assist them- as evidenced by the fact that it eventually took the federal EPA to come in and enter the property- it would seem that the state’s liability consisted entirely of a small ancillary amount of grossly negligent culpability in the county’s malfeasance and misconduct.
That, if anything, makes Castillo’s contention that
While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us
even more absurd because it would seem that if anything it was the state that gambled that, by virtue of having even “deeper pockets” than the county, paying their relatively small share was better than trying to show it was entirely the county’s fault in that any “negligence” was primarily purely driven by the county’s actions and inactions.
The responsibility for the whole debacle- and therefore the deaths of the seven people who died primarily due their concerted effort to obstruct justice- seems to sit squarely in the laps of Kusaka, Coast and Kudo.
According to the DRSA [§179D-8b]:
Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony.
Why the trio are not facing criminal charges along with Pflueger is a question that must be addressed by Kusaka’s fellow Republican Linda Lingle’s Attorney General Mark Bennett who is selectively and personally prosecuting Pflueger in a trial scheduled for this summer.
But the question one person who knew the seven who died rhetorically asked us recently- “how does Kusaka sleep at night”- is one only she can answer.
Only a true sociopath could.
While one close to the story said we pretty much got it right another challenged our interpretation asking for specific references.
In attempting to debunk County Attorney Al Castillo’s contention that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” and show it had everything in the world to do with culpability we noted that there had to be some kind of gross misconduct or even malfeasance on the part of the state to override any general immunity.
So we turned to the Hawaii Dam and Reservoir Safety Act (DRSA [§179D]) and found yes, the state has a pretty much blanket immunity regarding dams and reservoirs in that “no action or failure to act under this chapter shall be construed to create any liability in the State” [§179D-4] .
And yes that can be overridden by “willful acts or negligence by the board or its agents” [§179D-6] in certain situations- the precise situation that occurred between the state and the county in failing to “enter upon such private property of the dam or reservoir”.
In other words it’s even worse than we suspected in terms of culpability of the county because it seems it was indeed the county’s willful inactions that precipitated the state’s liability in the case.
Those that sat through the marathon year-and-a-half “Developers Gone Wild” Kaua`i County Council grubbing and grading investigations will remember that a good deal of it dealt with asking then-Acting County Engineer Ian Costa and Chief of Engineering Division Wally Kudo why the heck they didn’t just go onto Jimmy Pflueger’s (and Tom McCloskey’s) properties and inspect them.
Though they had the legal right to do so they claimed it was a lot more difficult for them to do it than the state, needing assistance from the county attorney’s office and the courts.
At that point members of the council got them to say they would try to work with the Department of and Natural Resources (DLNR) which oversees the DRSA and is specifically “authorized to enter upon such private property of the dam or reservoir as may be necessary in making, at the owner's expense, any investigation or inspection required or authorized by this chapter”.
Presuming that, under pressure from the council- and despite the interference of then Mayor Maryanne Kusaka who according to an internal memo from one of Kudo’s underlings squelched any action against landowner Jimmy Pflueger- Kudo and Costa contacted DLNR to have them assist them, and again presuming that the DLNR failed to assist them- as evidenced by the fact that it eventually took the federal EPA to come in and enter the property- it would seem that the state’s liability consisted entirely of a small ancillary amount of grossly negligent culpability in the county’s malfeasance and misconduct.
That, if anything, makes Castillo’s contention that
While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us
even more absurd because it would seem that if anything it was the state that gambled that, by virtue of having even “deeper pockets” than the county, paying their relatively small share was better than trying to show it was entirely the county’s fault in that any “negligence” was primarily purely driven by the county’s actions and inactions.
The responsibility for the whole debacle- and therefore the deaths of the seven people who died primarily due their concerted effort to obstruct justice- seems to sit squarely in the laps of Kusaka, Coast and Kudo.
According to the DRSA [§179D-8b]:
Any person who negligently or after written notice to comply, violates this chapter or any rule, order, or condition adopted, issued, or required under this chapter, or knowingly obstructs, hinders, or prevents the department's agents or employees from performing duties under this chapter, shall be guilty of a class C felony.
Why the trio are not facing criminal charges along with Pflueger is a question that must be addressed by Kusaka’s fellow Republican Linda Lingle’s Attorney General Mark Bennett who is selectively and personally prosecuting Pflueger in a trial scheduled for this summer.
But the question one person who knew the seven who died rhetorically asked us recently- “how does Kusaka sleep at night”- is one only she can answer.
Only a true sociopath could.
Monday, February 1, 2010
BELIEVE IT OR ELSE
BELIEVE IT OR ELSE: How dumb are we? You don’t wanna know... no, really, seriously, apparently you actually don’t want to know.
Or at least the county once again is relying on that premise.
Because everywhere we went this weekend all we heard was the gurgling sound of people swallowing the hook, line and sinker of Al “The Mad Hat Police” Castillo’s improbable spin on the county’s whopping close to 1/3 of the responsibility in the Ka Loko Dam break tragedy.
Instead of admitting to the scandalous behavior of Mayor Maryanne Kusaka and her Department of Public Works henchmen Cesar Portugal, Wally Kudo and Ian Costa (among others) in intentionally allowing accused murderer Jimmy Pflueger to do whatever the hell he wanted with his “lakes”, Castillo wants us to believe that that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” according to a county press release.
Ah- pay no attention to the man behind the curtain. I am The Great and Powerful Al...
The fact is there is no immunity law that distinguishes between the gross incompetence of the state and the malfeasance of the county.
Government employees usually receive a broad immunity in performing their duties. The general rule is that as long as they aren’t unbelievably and grossly incompetent- and usually forewarned of the potential results of their incompetence- they and/or their government can’t be held financially responsible.
But even more lacking of that kind of protection is something like what occurred on Kaua`i- a criminal conspiracy among government officials to lie, cover-up and generally block enforcement of the law.
You don’t have to go far to find the damning evidence of that- just review the year and a half of public exposition of their malfeasance through testimony contained in the verbatim minutes of council meetings in the late 1990’s and early 2000’s.
Some we’ve spoken to have an inking that we’re being sold a bill of goods here but can’t really put their finger on it. That may be because preceding the paragraph containing the “culpability” BS was this little ditty:
“While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us,” said County Attorney Alfred Castillo. “Since this case had potentially huge damages, well in excess of our insurance limits, the County and its insurance carriers believed that settling was in the best interest of the County.”
Joan Conrow smelled a rat , in her Saturday column, but understandably took the mis-directional bait in assuming the razzle-dazzle of that paragraph had anything to do with the culpability paragraph saying:
Something’s not right here. Doesn’t the state have insurance, too? And does this talk about “financial realities” mean that the county now has deeper pockets than the state?
What about former Mayor Maryanne Kusaka, who told the county inspector to lay off in his investigations of Pflueger’s illegal grading at the dam? Will she be charged for the $250,000 that the insurance doesn’t cover? Will she ever be held accountable for her deeds? Is the desire to spare her one reason why the county decided to settle out of court?
The state in fact is self insured while the county holds a policy- one for which premiums are bound to be going up by a hefty amount... something Castillo fails to mention in assessing the cost to the county.
But the fact is this has nothing to do with the state’s liability law because no law can protect government officials when they are grossly negligent or even in fact engaged in malfeasance.
Of course the “deep pockets” excuse is total bullsh-t- the state’s would even be bigger with its deeper pockets if that had any relevance whatsoever- unless of course the county was far more to blame.
But since the depositions are sealed- which we would argue in the case of state and county culpability they shouldn’t be under the sunshine and open records laws- we’ll never see the evidence... a fact Castillo is relying upon.
One question should show what a load of shibai Castillo is trying to get the press and the people to believe- apparently successfully until now.
If Castillo’s claim were to be taken seriously, apparently that there has to be some kind of state law giving the state some kind of total immunity to their own incompetence and malfeasance under all circumstances- one that doesn’t so protect the counties. If that were true- which is isn’t- how did the state come to be held responsible for any amount at all, much less the reported $1.5 million for which they settled?
Answer- of course there can’t be. It’s simply based on the responsibility of each entity- in the state’s case, regular inspection of the dams but in the county’s case, enforcement of grubbing and grading laws.
The fact is that the $7.5 million the county was assessed shows nothing if not culpability and means the actions- or inactions as the case may be- of the Kusaka Administration were more than four times worse than the state’s.
As the years have gone by most observers- especially those in Honolulu but also notably the handful of supporters and family members of Pflueger’s have filled the comment pages of the newspapers- and in the case of the latter, our email inbox- contending that the lack of state inspections means that the state should be held partially responsible- or fully in the case of Jimmyphiles.
It’s the old “oh the cops didn’t stop me from robbing that bank so they’re responsible” defense.
We don’t expect anything to satisfy those who think Pflueger can do no wrong but it makes it understandable why they never brought up the county’s part in this because that would mean that, since Pflueger himself was both involved in and the beneficiary of the local corruption he can’t claim it should relieve him of any and all liability.
But it should also give the rest of the state $1.5 million reasons to stop ignoring and laughing at local Kaua`i corruption and joking about “a separate kingdom”.
And those of you who think it’s ok because we on Kaua`i won’t have to actually pay anything but $250,000 ought to be asking about what we are paying for our insurance policy- or will be in the near future... assuming that at this point we’re even insurable.
And don’t think the bond rating people for the county’s bond float- currently being negotiated- haven’t noticed the same thing.
Or at least the county once again is relying on that premise.
Because everywhere we went this weekend all we heard was the gurgling sound of people swallowing the hook, line and sinker of Al “The Mad Hat Police” Castillo’s improbable spin on the county’s whopping close to 1/3 of the responsibility in the Ka Loko Dam break tragedy.
Instead of admitting to the scandalous behavior of Mayor Maryanne Kusaka and her Department of Public Works henchmen Cesar Portugal, Wally Kudo and Ian Costa (among others) in intentionally allowing accused murderer Jimmy Pflueger to do whatever the hell he wanted with his “lakes”, Castillo wants us to believe that that “the difference between the state’s portion of the settlement and the county’s had little to do with culpability, and instead reflected financial realities and state law regarding immunity” according to a county press release.
Ah- pay no attention to the man behind the curtain. I am The Great and Powerful Al...
The fact is there is no immunity law that distinguishes between the gross incompetence of the state and the malfeasance of the county.
Government employees usually receive a broad immunity in performing their duties. The general rule is that as long as they aren’t unbelievably and grossly incompetent- and usually forewarned of the potential results of their incompetence- they and/or their government can’t be held financially responsible.
But even more lacking of that kind of protection is something like what occurred on Kaua`i- a criminal conspiracy among government officials to lie, cover-up and generally block enforcement of the law.
You don’t have to go far to find the damning evidence of that- just review the year and a half of public exposition of their malfeasance through testimony contained in the verbatim minutes of council meetings in the late 1990’s and early 2000’s.
Some we’ve spoken to have an inking that we’re being sold a bill of goods here but can’t really put their finger on it. That may be because preceding the paragraph containing the “culpability” BS was this little ditty:
“While the County believed it had viable defenses, joint and several liability applied in this case. Had the County lost at trial with the other defendants, we could have ended up having to pay almost everything, not just the percentage the jury assigned to us,” said County Attorney Alfred Castillo. “Since this case had potentially huge damages, well in excess of our insurance limits, the County and its insurance carriers believed that settling was in the best interest of the County.”
Joan Conrow smelled a rat , in her Saturday column, but understandably took the mis-directional bait in assuming the razzle-dazzle of that paragraph had anything to do with the culpability paragraph saying:
Something’s not right here. Doesn’t the state have insurance, too? And does this talk about “financial realities” mean that the county now has deeper pockets than the state?
What about former Mayor Maryanne Kusaka, who told the county inspector to lay off in his investigations of Pflueger’s illegal grading at the dam? Will she be charged for the $250,000 that the insurance doesn’t cover? Will she ever be held accountable for her deeds? Is the desire to spare her one reason why the county decided to settle out of court?
The state in fact is self insured while the county holds a policy- one for which premiums are bound to be going up by a hefty amount... something Castillo fails to mention in assessing the cost to the county.
But the fact is this has nothing to do with the state’s liability law because no law can protect government officials when they are grossly negligent or even in fact engaged in malfeasance.
Of course the “deep pockets” excuse is total bullsh-t- the state’s would even be bigger with its deeper pockets if that had any relevance whatsoever- unless of course the county was far more to blame.
But since the depositions are sealed- which we would argue in the case of state and county culpability they shouldn’t be under the sunshine and open records laws- we’ll never see the evidence... a fact Castillo is relying upon.
One question should show what a load of shibai Castillo is trying to get the press and the people to believe- apparently successfully until now.
If Castillo’s claim were to be taken seriously, apparently that there has to be some kind of state law giving the state some kind of total immunity to their own incompetence and malfeasance under all circumstances- one that doesn’t so protect the counties. If that were true- which is isn’t- how did the state come to be held responsible for any amount at all, much less the reported $1.5 million for which they settled?
Answer- of course there can’t be. It’s simply based on the responsibility of each entity- in the state’s case, regular inspection of the dams but in the county’s case, enforcement of grubbing and grading laws.
The fact is that the $7.5 million the county was assessed shows nothing if not culpability and means the actions- or inactions as the case may be- of the Kusaka Administration were more than four times worse than the state’s.
As the years have gone by most observers- especially those in Honolulu but also notably the handful of supporters and family members of Pflueger’s have filled the comment pages of the newspapers- and in the case of the latter, our email inbox- contending that the lack of state inspections means that the state should be held partially responsible- or fully in the case of Jimmyphiles.
It’s the old “oh the cops didn’t stop me from robbing that bank so they’re responsible” defense.
We don’t expect anything to satisfy those who think Pflueger can do no wrong but it makes it understandable why they never brought up the county’s part in this because that would mean that, since Pflueger himself was both involved in and the beneficiary of the local corruption he can’t claim it should relieve him of any and all liability.
But it should also give the rest of the state $1.5 million reasons to stop ignoring and laughing at local Kaua`i corruption and joking about “a separate kingdom”.
And those of you who think it’s ok because we on Kaua`i won’t have to actually pay anything but $250,000 ought to be asking about what we are paying for our insurance policy- or will be in the near future... assuming that at this point we’re even insurable.
And don’t think the bond rating people for the county’s bond float- currently being negotiated- haven’t noticed the same thing.
Wednesday, May 27, 2009
(PNN) SAFETY OVERFLOW FEATURES TO DIVERT WATER FROM KA LOKO BACK TO MOLOA`A STREAM EXISTED, REMAIN IN DISUSE
SAFETY OVERFLOW FEATURES TO DIVERT WATER FROM KA LOKO BACK TO MOLOA`A STREAM EXISTED, REMAIN IN DISUSE
(PNN) There is apparently a portion of the Moloa`a Ditch system that was seemingly designed to return water from the recently illegally reconstructed Moloa`a Ditch to Moloa`a Stream, according to local architect and engineer Juan Wilson.
A map produced by Wilson and posted as part of a Moloa`a Diversion Forensics
article on his Island Breath web site depicts what he says is the system of ditches that feed into Ka Loko reservoir which gave way in 2006 killing seven people in Waiakalua valley.
The map shows Moloa`a Stream and tributaries in light blue toward the bottom of the frame. Ka Loko Reservoir is at the right in blue and with a potion of Moloa`a ditch running left to right in the center in blue, connecting the point of diversion of the water out of Moloa`a Stream’s Kalawa`a tributary (a potato chip shaped blue patch at the left) with the Ka Loko ditch system at a point just to the left of the reservoir.
Then the water apparently connects to and dumps into Ka Loko Reservoir.
But there is also a blue a section that runs from where all the ditches come together just above (to the left) the reservoir and lead back to the Moloa`a stream watershed.
Wilson says this may be a section of the Moloa`a Ditch system that was apparently designed as a safety feature to take excess water out of the system and return it to Moloa`a Stream and was designed to prevent the Ka Loko Reservoir from taking in more water than it could hold.
The elevation of the point just above the reservoir is more than a hundred feet higher than the point where it connects to Kalawa`a stream so it could only run in that direction according to Wilson.
PNN previously reported, first that a letter to the EPA said the main Moloa`a Ditch may have had its flow reversed 10 years ago but later reported that that, according to other documents, was apparently not the case. Wilson’s depiction may shed light on the discrepancy.
It’s unknown at this time whether the section in question was reconstructed when the diversion, as described above, was established about 10 years ago according to a recent county-funded study on agricultural water in the Moloa`a-to-Kilauea area, all centered around Ka Loko Reservoir.
It is apparently not referred to in any documents in the reports as being currently functional.
Though no proof exists as to who did the 10 year old work diverting Moloa`a Stream water, all evidence points to land owner Jimmy Pflueger who did extensive work in the area prior to the dam break and is scheduled to stand trial for manslaughter and in numerous civil cases this summer in connection with the dam break.
The map was put together by Wilson using Google Earth 3D and his work on cataloguing ahupua`a on Kaua`i as well as information contained in the recently released county-funded Kilauea Irrigation Water Engineering Design and Monitoring Study and state Godby Report on the dam break as depicted and provided by Hope Kallai of Malama Moloa`a.
Kallai says there are signs in the various reports that there are currently non-functional parts of the system designed to take excess water out of the ditches and return it to Moloa`a Stream before it gets to the reservoir. She says she isn’t sure where this specific depiction by Wilson fits in but that apparently there is an “clean out weir” that can dump excess water down a small valley that leads from the area above Ka Loko to either Moloa`a Stream’s Kalawa`a tributary or Moloa`a Stream proper.
The problem has been that exhibits in both reports are at times contradictory and it’s unknown whether, when the documents were prepared- some going back decades- they were based on factual material or speculation at the time.
It isn’t known how may “safety features” may have been built in the past and the one described by Wilson may, Kallai says, be one of as may as three according to the documents.
Kallai says that it seems that she believes that water can be returned to Moloa`a Stream as easily as turning a valves to release the water, citing a time when this apparently happened for a period of days last summer during the time the county study was being conducted when the valve was turned and she and others noted that Moloa`a Stream flowed as it had prior to the diversion 10 years ago.
What is apparent is that currently no water return mechanism is in use.
For further details see the left rail for prior PNN reports on the theft of Moloa`a Water. PNN will continue to follow the story as details emerge.
(PNN) There is apparently a portion of the Moloa`a Ditch system that was seemingly designed to return water from the recently illegally reconstructed Moloa`a Ditch to Moloa`a Stream, according to local architect and engineer Juan Wilson.
A map produced by Wilson and posted as part of a Moloa`a Diversion Forensics
article on his Island Breath web site depicts what he says is the system of ditches that feed into Ka Loko reservoir which gave way in 2006 killing seven people in Waiakalua valley.
The map shows Moloa`a Stream and tributaries in light blue toward the bottom of the frame. Ka Loko Reservoir is at the right in blue and with a potion of Moloa`a ditch running left to right in the center in blue, connecting the point of diversion of the water out of Moloa`a Stream’s Kalawa`a tributary (a potato chip shaped blue patch at the left) with the Ka Loko ditch system at a point just to the left of the reservoir.
Then the water apparently connects to and dumps into Ka Loko Reservoir.
But there is also a blue a section that runs from where all the ditches come together just above (to the left) the reservoir and lead back to the Moloa`a stream watershed.
Wilson says this may be a section of the Moloa`a Ditch system that was apparently designed as a safety feature to take excess water out of the system and return it to Moloa`a Stream and was designed to prevent the Ka Loko Reservoir from taking in more water than it could hold.
The elevation of the point just above the reservoir is more than a hundred feet higher than the point where it connects to Kalawa`a stream so it could only run in that direction according to Wilson.
PNN previously reported, first that a letter to the EPA said the main Moloa`a Ditch may have had its flow reversed 10 years ago but later reported that that, according to other documents, was apparently not the case. Wilson’s depiction may shed light on the discrepancy.
It’s unknown at this time whether the section in question was reconstructed when the diversion, as described above, was established about 10 years ago according to a recent county-funded study on agricultural water in the Moloa`a-to-Kilauea area, all centered around Ka Loko Reservoir.
It is apparently not referred to in any documents in the reports as being currently functional.
Though no proof exists as to who did the 10 year old work diverting Moloa`a Stream water, all evidence points to land owner Jimmy Pflueger who did extensive work in the area prior to the dam break and is scheduled to stand trial for manslaughter and in numerous civil cases this summer in connection with the dam break.
The map was put together by Wilson using Google Earth 3D and his work on cataloguing ahupua`a on Kaua`i as well as information contained in the recently released county-funded Kilauea Irrigation Water Engineering Design and Monitoring Study and state Godby Report on the dam break as depicted and provided by Hope Kallai of Malama Moloa`a.
Kallai says there are signs in the various reports that there are currently non-functional parts of the system designed to take excess water out of the ditches and return it to Moloa`a Stream before it gets to the reservoir. She says she isn’t sure where this specific depiction by Wilson fits in but that apparently there is an “clean out weir” that can dump excess water down a small valley that leads from the area above Ka Loko to either Moloa`a Stream’s Kalawa`a tributary or Moloa`a Stream proper.
The problem has been that exhibits in both reports are at times contradictory and it’s unknown whether, when the documents were prepared- some going back decades- they were based on factual material or speculation at the time.
It isn’t known how may “safety features” may have been built in the past and the one described by Wilson may, Kallai says, be one of as may as three according to the documents.
Kallai says that it seems that she believes that water can be returned to Moloa`a Stream as easily as turning a valves to release the water, citing a time when this apparently happened for a period of days last summer during the time the county study was being conducted when the valve was turned and she and others noted that Moloa`a Stream flowed as it had prior to the diversion 10 years ago.
What is apparent is that currently no water return mechanism is in use.
For further details see the left rail for prior PNN reports on the theft of Moloa`a Water. PNN will continue to follow the story as details emerge.
Friday, May 22, 2009
(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
---------
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
(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
---------
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
Friday, May 15, 2009
BREWER CONTEMPLATED REPAIR TO DEFUNCT MOLOA`A DITCH IN ’86
(PNN) BREWER CONTEMPLATED REPAIR TO DEFUNCT MOLOA`A DITCH IN ’86
MEMO SAYS DITCH HAD NO WATER FLOW BUT COULD “DURING PERIOD OF HIGH RAINFALL”
(PNN) A 1986 internal C. Brewer memo indicates that repairs to the Moloa`a Ditch were contemplated when the Ka Loko Ditch was repaired to provide water to the first “diversified agriculture” project in Kilauea after sugar cane operations in the area ceased in the early 1970’s .
The memo indicates that there was a cost “estimate” for re-establishing the Moloa`a Ditch prepared and is one of a series of memos (contained in one of the appendices of the state’s “Godby Report”) that indicate that it was written after extensive repairs to Ka Loko Ditch were completed in order to provide water for Brewer and it’s subsidiary Hawaiiana Investment Co to establish a prawn farm in Kilauea.
The prawn operation failed reportedly because the area was too wet and Brewer subsequently used the water to supply a guava farm in Kilauea that only recently went defunct.
Though the repairs to Moloa`a Ditch were apparently contemplated there is no indication in the memos- the last of which described more repairs to Ka Loko Ditch after a 1991 flood that killed three people in Anahola- that Brewer or anyone worked on the Moloa`a Ditch prior to the work that seemed to have been done in the late 90’s apparently by Jimmy Pflueger.
PNN reported a week ago Wednesday that a recent county study found that Moloa`a Ditch had been re-established about 10 years ago and now feeds a series of underground pipes above Ka Loko Reservoir in the area where Pflueger had been fined for land moving violations in 2001. Though the report did not speculate about the purpose of the ditch, PNN also reported that it was probably re-built to provide more water for a Pflueger-planned “water resort” that, according to sources close to Pflueger, was to center around Ka Loko Reservoir and use other “lakes” he had established in the area for water and jet-skiing.
That would explain the sudden drop in water flow in Moloa`a stream that, according to area residents and farmers, occurred 10 years ago- the same time the report estimated the work re-establishing Moloa`a Ditch was done.
As PNN reported last Friday an undated anonymous letter to the EPA indicates that Pflueger may have not only re-established the Moloa`a Ditch but may have reversed it’s flow direction to put water into the Ka Loko system rather than take it out as, the letter alleges, the ditch originally did when it was built in the late 19th and early 20th century for sugar cane operation in the area.
The May 20, 1986 memo that mentions Moloa`a Ditch is on C. brewer letterhead and addressed to R.L. Herberg, part-owner of Hawaiiana Investment and is from Brewer’s Gordon C. Wentworth.
It reads:
In preparing my May 18, 1986 memo to you on the Ka Loko Repairs I inadvertently failed to include the attached estimate for repair to the Moloa`a Ditch Flume which I had set aside while preparing a submission to DLNR.
In addition to the repair to the flume the Moloa`a Ditch needs clearing of the trail and ditch although the magnitude of the job is much smaller than was encountered in a similar length of Ka Loko Ditch.
Although the Moloa`a Ditch does not carry flow of water under normal conditions it can provide a contribution to the system during period of high rainfall. (emphasis added)
Though the memo presumes the flow was into the Ka Loko system there is no indication whether that supposition was based upon observation during a high rainfall incident or is based upon speculation or presumption.
The rest of the memos detail extensive restoration of the Ka Loko Ditch, which is the primary ditch feeding Ka Loko Reservoir which failed during a 2006 storm killing seven people and leading to manslaughter charges against Pflueger as well as numerous civil suits.
The work on Ka Loko Ditch was done by hydrologist John Weirheim and had been completed sometime between February 12, 1981- when the first memo indicates they had received DLNR permits for the work on Ka Loko Ditch- and November 15, 1985 when the second in the series of memos described the amount water flow in Ka Loko saying “(n)ow that the KaLoko Ditch repair is completed, and water is again flowing in the system...”
None of the memos describe any work to the Ka Loko Reservoir itself, nor do they refer to any actual Brewer work done on Moloa`a Ditch, only to an estimate of cost to re-establish it. It does however confirm that it was not carrying any water in 1986.
The memos do refer a spillway in Ka Loko Ditch which was designed to relieve the flow into Ka Loko reservoir but does not indicate where that spillway emptied nor if it was in the vicinity of the Moloa`a Ditch.
It has been publicly alleged by the state and plaintiffs in the civil suits that Pflueger covered the spillway of the Ka Loko Reservoir itself apparently leading to the dam break, but the contribution of any flow from Moloa`a Ditch has not been established nor mentioned publicly by the state or any of the plaintiffs.
MEMO SAYS DITCH HAD NO WATER FLOW BUT COULD “DURING PERIOD OF HIGH RAINFALL”
(PNN) A 1986 internal C. Brewer memo indicates that repairs to the Moloa`a Ditch were contemplated when the Ka Loko Ditch was repaired to provide water to the first “diversified agriculture” project in Kilauea after sugar cane operations in the area ceased in the early 1970’s .
The memo indicates that there was a cost “estimate” for re-establishing the Moloa`a Ditch prepared and is one of a series of memos (contained in one of the appendices of the state’s “Godby Report”) that indicate that it was written after extensive repairs to Ka Loko Ditch were completed in order to provide water for Brewer and it’s subsidiary Hawaiiana Investment Co to establish a prawn farm in Kilauea.
The prawn operation failed reportedly because the area was too wet and Brewer subsequently used the water to supply a guava farm in Kilauea that only recently went defunct.
Though the repairs to Moloa`a Ditch were apparently contemplated there is no indication in the memos- the last of which described more repairs to Ka Loko Ditch after a 1991 flood that killed three people in Anahola- that Brewer or anyone worked on the Moloa`a Ditch prior to the work that seemed to have been done in the late 90’s apparently by Jimmy Pflueger.
PNN reported a week ago Wednesday that a recent county study found that Moloa`a Ditch had been re-established about 10 years ago and now feeds a series of underground pipes above Ka Loko Reservoir in the area where Pflueger had been fined for land moving violations in 2001. Though the report did not speculate about the purpose of the ditch, PNN also reported that it was probably re-built to provide more water for a Pflueger-planned “water resort” that, according to sources close to Pflueger, was to center around Ka Loko Reservoir and use other “lakes” he had established in the area for water and jet-skiing.
That would explain the sudden drop in water flow in Moloa`a stream that, according to area residents and farmers, occurred 10 years ago- the same time the report estimated the work re-establishing Moloa`a Ditch was done.
As PNN reported last Friday an undated anonymous letter to the EPA indicates that Pflueger may have not only re-established the Moloa`a Ditch but may have reversed it’s flow direction to put water into the Ka Loko system rather than take it out as, the letter alleges, the ditch originally did when it was built in the late 19th and early 20th century for sugar cane operation in the area.
The May 20, 1986 memo that mentions Moloa`a Ditch is on C. brewer letterhead and addressed to R.L. Herberg, part-owner of Hawaiiana Investment and is from Brewer’s Gordon C. Wentworth.
It reads:
In preparing my May 18, 1986 memo to you on the Ka Loko Repairs I inadvertently failed to include the attached estimate for repair to the Moloa`a Ditch Flume which I had set aside while preparing a submission to DLNR.
In addition to the repair to the flume the Moloa`a Ditch needs clearing of the trail and ditch although the magnitude of the job is much smaller than was encountered in a similar length of Ka Loko Ditch.
Although the Moloa`a Ditch does not carry flow of water under normal conditions it can provide a contribution to the system during period of high rainfall. (emphasis added)
Though the memo presumes the flow was into the Ka Loko system there is no indication whether that supposition was based upon observation during a high rainfall incident or is based upon speculation or presumption.
The rest of the memos detail extensive restoration of the Ka Loko Ditch, which is the primary ditch feeding Ka Loko Reservoir which failed during a 2006 storm killing seven people and leading to manslaughter charges against Pflueger as well as numerous civil suits.
The work on Ka Loko Ditch was done by hydrologist John Weirheim and had been completed sometime between February 12, 1981- when the first memo indicates they had received DLNR permits for the work on Ka Loko Ditch- and November 15, 1985 when the second in the series of memos described the amount water flow in Ka Loko saying “(n)ow that the KaLoko Ditch repair is completed, and water is again flowing in the system...”
None of the memos describe any work to the Ka Loko Reservoir itself, nor do they refer to any actual Brewer work done on Moloa`a Ditch, only to an estimate of cost to re-establish it. It does however confirm that it was not carrying any water in 1986.
The memos do refer a spillway in Ka Loko Ditch which was designed to relieve the flow into Ka Loko reservoir but does not indicate where that spillway emptied nor if it was in the vicinity of the Moloa`a Ditch.
It has been publicly alleged by the state and plaintiffs in the civil suits that Pflueger covered the spillway of the Ka Loko Reservoir itself apparently leading to the dam break, but the contribution of any flow from Moloa`a Ditch has not been established nor mentioned publicly by the state or any of the plaintiffs.
Wednesday, May 13, 2009
(PNN) EPA DOC SAYS PFLUEGER MOLOA`A DITCH RECONSTRUCTION REVERSED FLOW TO FEED KA LOKO
EPA DOC SAYS PFLUEGER MOLOA`A DITCH RECONSTRUCTION REVERSED FLOW TO FEED KA LOKO
(PNN) The federal Environmental Protection Agency (EPA) was apparently informed about the Moloa`a stream diversion in an anonymous, undated, detailed letter appended to the state’s Godby Report on the Ka Loko Dam break. It alleges that the work apparently done to restore the Moloa`a ditch actually reversed the direction of the flow which originally took water away from Ka Loko and into Moloa`a Stream.
Though the letter was also sent to the Honolulu Advertiser, the Garden Island newspaper and David Henkin of Earth Justice neither they, Godby nor the EPA apparently noted or acted upon the letter that appears in an appendix of EPA documents.
According to the letter, the long-in-disrepair Moloa`a ditch that currently feeds Ka Loko reservoir was originally designed to dump excess water before it reached the reservoir, which is constructed in a cinder cone and fed by a series of ditches rather than sitting in the path of a regular stream as most reservoirs do.
The letter alleges that Jimmy Pflueger fully reconstructed the ditch about 10 years ago and reversed the flow in order to feed an “irrigation system”, with the overflow dumping into Ka Loko reservoir.
It confirms many of the allegations made by Malama Moloa`a and Hope Kallai, as PNN reported last week, that work apparently done by Pflueger- as described in detail in a recent county report on the future use of the Ka Loko irrigation system for Kilauea farmers- recently re-constructed and established the ditch and adds the allegation that it reversed the flow of the ditch which, it says, was originally designed to take excess water from the Ka Loko system and dump it into Moloa`a stream by diverting it through a series of three tunnels.
Though the letter was contained in the state’s Godby report’s appendix of EPA documents apparently the EPA did not investigate the ditch when they investigated and fined Pflueger’s for activities in the area about five years prior to the dam break that killed seven people in March 2006.
The letter does not refer to the dam break and apparently was written well before the event although it is undated and unsigned.
It also contains maps and photos although it says they the writers did not physically investigate the whole ditch system which it says is fairly inaccessible due to topography. They do describe the “source”-which used to be the end- as being on state land in the Moloa`a Forest Reserve and in a manner similar to the way the county report does, noting a dam, the Moloa`a stream diversion and an almost dry river bed below it.
The county report contains a description of the whole path of the ditch but does not conclude that the recent construction it noted actually reversed the flow.
Moloa`a residents noticed a severe decline in water flow occurred suddenly 10 years ago, about the time that the ditch was apparently repaired and made functional. They say the lack of water has made agricultural land in Moloa`a valley un-farmable due to lack of water.
PNN has previously reported that the 80-year old ditch master who claims to have tended the Ka Loko system said at a meeting last Wed. that the ditch fell into disuse decades ago, perhaps as long ago as the 1920’s.
Many of the suppositions about the physical set up of the ditch and the re-construction allegedly done by Pflueger that are contained in the letter were confirmed by the county survey.
The additional water that presumably flowed into Ka Loko dam has never publicly been cited as a contributory factor in the 2006 tragedy.
Pflueger is currently set to stand trial for manslaughter and is also embroiled in multiple party civil suits both of which are scheduled for trial late this summer.
Although the state and county are defendants in the civil suits, the EPA is not as yet a party to the suit despite the apparent negligence in not following up on the letter.
The letter is contained in pages 7-12 of the appendix and is followed by photos and maps which are explained in the letter.
The pdf file of the appendix is not directly convertible to text and PNN is in the process of obtaining a text copy and will update this story at a later date.
(PNN) The federal Environmental Protection Agency (EPA) was apparently informed about the Moloa`a stream diversion in an anonymous, undated, detailed letter appended to the state’s Godby Report on the Ka Loko Dam break. It alleges that the work apparently done to restore the Moloa`a ditch actually reversed the direction of the flow which originally took water away from Ka Loko and into Moloa`a Stream.
Though the letter was also sent to the Honolulu Advertiser, the Garden Island newspaper and David Henkin of Earth Justice neither they, Godby nor the EPA apparently noted or acted upon the letter that appears in an appendix of EPA documents.
According to the letter, the long-in-disrepair Moloa`a ditch that currently feeds Ka Loko reservoir was originally designed to dump excess water before it reached the reservoir, which is constructed in a cinder cone and fed by a series of ditches rather than sitting in the path of a regular stream as most reservoirs do.
The letter alleges that Jimmy Pflueger fully reconstructed the ditch about 10 years ago and reversed the flow in order to feed an “irrigation system”, with the overflow dumping into Ka Loko reservoir.
It confirms many of the allegations made by Malama Moloa`a and Hope Kallai, as PNN reported last week, that work apparently done by Pflueger- as described in detail in a recent county report on the future use of the Ka Loko irrigation system for Kilauea farmers- recently re-constructed and established the ditch and adds the allegation that it reversed the flow of the ditch which, it says, was originally designed to take excess water from the Ka Loko system and dump it into Moloa`a stream by diverting it through a series of three tunnels.
Though the letter was contained in the state’s Godby report’s appendix of EPA documents apparently the EPA did not investigate the ditch when they investigated and fined Pflueger’s for activities in the area about five years prior to the dam break that killed seven people in March 2006.
The letter does not refer to the dam break and apparently was written well before the event although it is undated and unsigned.
It also contains maps and photos although it says they the writers did not physically investigate the whole ditch system which it says is fairly inaccessible due to topography. They do describe the “source”-which used to be the end- as being on state land in the Moloa`a Forest Reserve and in a manner similar to the way the county report does, noting a dam, the Moloa`a stream diversion and an almost dry river bed below it.
The county report contains a description of the whole path of the ditch but does not conclude that the recent construction it noted actually reversed the flow.
Moloa`a residents noticed a severe decline in water flow occurred suddenly 10 years ago, about the time that the ditch was apparently repaired and made functional. They say the lack of water has made agricultural land in Moloa`a valley un-farmable due to lack of water.
PNN has previously reported that the 80-year old ditch master who claims to have tended the Ka Loko system said at a meeting last Wed. that the ditch fell into disuse decades ago, perhaps as long ago as the 1920’s.
Many of the suppositions about the physical set up of the ditch and the re-construction allegedly done by Pflueger that are contained in the letter were confirmed by the county survey.
The additional water that presumably flowed into Ka Loko dam has never publicly been cited as a contributory factor in the 2006 tragedy.
Pflueger is currently set to stand trial for manslaughter and is also embroiled in multiple party civil suits both of which are scheduled for trial late this summer.
Although the state and county are defendants in the civil suits, the EPA is not as yet a party to the suit despite the apparent negligence in not following up on the letter.
The letter is contained in pages 7-12 of the appendix and is followed by photos and maps which are explained in the letter.
The pdf file of the appendix is not directly convertible to text and PNN is in the process of obtaining a text copy and will update this story at a later date.
Friday, May 8, 2009
(PNN) PFLUEGER ’01 GRUBBING AND GRADING VIOLATION APPARENTLY COVERS OVER WATER PIPES FED BY ILLEGAL DITCH.
It’s Chinatown, Jake...
(PNN) PFLUEGER ’01 GRUBBING AND GRADING VIOLATION APPARENTLY COVERS OVER WATER PIPES FED BY ILLEGAL DITCH
The grubbing and grading violations above Ka Loko Dam for which Jimmy Pflueger was cited and fined years before the dam break, apparently covered over an extensive system of water pipes fed by an illegal water diversion that steals water from Moloa`a stream.
As PNN reported Wednesday a county funded report designed to study the reestablishment of irrigation for Kilauea farmers after the tragic dam break in 2006, describes how within the past 10 years “someone” completely rebuilt the long abandoned Moloa`a Ditch to feed the Pflueger and the Mary Lucas Trusts’ lands and Ka Loko reservoir which sits on both.
The report also notes that the ditch connects to an 8” intake pipe on Pflueger’s property that undergrounds at that point just above the work for which Pflueger was cited which is above the reservoir. The intake pipe contains at least two branches, one for Pflueger’s land and one for the Trust’s land.
Apparently in addition to providing a higher water level in the reservoir for the Pflueger’s planned water sports development one of the purposes of the ditch was to provide residential use water for Pflueger’s planned resort community on the property because county water is not available in the area, according to Kallai
Since no one knew of the re-construction of the Moloa`a Ditch at the time of the inspections that led to the violation, apparently no one suspected that the grubbing and grading actually covered over a system of water pipes.
The pipes also provide water to others who own the Mary Lucas trust land including relatives of Pflueger who Kallai says, sued him over water rights in the 1990’s.
Although the particulars of that case are sketchy at present, the suit was apparently dropped and Pflueger was removed as the Trust’s head around the time the ditch was re-established.
At the time Pflueger, a Lucas heir, was the head of the Trust and was denying water to his relatives, in part for a mango farm on the Lucas Trust land according to Kallai who is familiar with the suit.
At a meeting to discuss the water situation Wed. night in Kilauea, according to Kallai one 80+-year-old-man who said he used to head up maintenance for whole the Ka Loko Reservoir and Ditch System said the Moloa`a Ditch was abandoned decades ago- perhaps as early as the 1920’s- because it was not needed for Kilauea sugar cane operations which ceased in the early 1970’s.
It had fallen into total disrepair but it remains to be determined how much of the “new” ditch was part of the old one and how much was constructed from scratch, including the three tunnels through mountains and the “ad hoc dam” at the point of diversion.
Kallai, a Moloa`a farmer, says that the estimates in the county report of how many gallons a day are being taken from the Moloa`a Stream is a severe underestimate, based on a quick glance done from a distance from the ditch and diversion rather than any real measurement.
Kallai estimates the value of the water at the county’s agricultural rate could be well into the billions of dollars.
Water rights in Hawai`i belong to the state and allotment by diversion is severely regulated based on the famous Hanapepe Water Rights case which has, in recent times led to cases like the Wai`oli Ditch decision that returned water to windward O`ahu streams and is currently being used to determine controversial water rights on Maui.
Kallai said that although we reported that she said that 200 farmers had already left Moloa`a she was rather referring to the number whose farming activities have been either curtailed or eliminated since the water in Moloa`a stream dried up 10 years ago and will have to leave if water is not restored to the stream.
She also alerted us to an April 13 2006 article by Malia Zimmerman of The Hawaii Reporter that tells the whole story we referred to Wed. regarding Kallai’s warnings that the dam was about to break just weeks before it actually did.
According to that article:
Pflueger was fined $12,500 by the state Department of Land and Natural Resources’ Commission on Water Resource Management on July 28, 2001, for altering the stream channel and diverting the stream without proper permitting for his properties at Hanalei and Kilauea, Kauai.
His water diversion activities also included those on his Pila`a property where another deluge took out the home and Kuleana of Amy and Rick Marvin due to grading of a new road done personally by Pflueger without permits.
Pflueger had constructed “lakes” on the property as part of activities that killed the Pila`a reef and resulted in his conviction on 10 felony counts and a 7.5 million EPA fine in 2006.
Kallai says those lakes were finally removed just last month as part of the remediation plan.
The article also notes:
James Pflueger, who owns the property from which the wave of water could have come, claims he never altered the waterway, the dam’s spillway or the dam height. "If you find anyone who knows I diverted streams, let me know and I'll come running," Pflueger told the Honolulu Star-Bulletin. Pflueger has so far refused to return calls to Hawaii Reporter.
But, despite Zimmerman’s requests for information an investigation the state’s extensive Godby report completed in the aftermath of the dam break has nothing about the diversion and no further investigation of it has occurred on the part of the state.
The diversion was not “discovered” until the description appeared in the county report that was released last Friday, although it is dated April 12.
The report posted on line is a draft and was presented with minor revisions at the Wed. Kilauea meeting according to Kallai upon whose descriptions of the meeting we have relied for this article.
(PNN) PFLUEGER ’01 GRUBBING AND GRADING VIOLATION APPARENTLY COVERS OVER WATER PIPES FED BY ILLEGAL DITCH
The grubbing and grading violations above Ka Loko Dam for which Jimmy Pflueger was cited and fined years before the dam break, apparently covered over an extensive system of water pipes fed by an illegal water diversion that steals water from Moloa`a stream.
As PNN reported Wednesday a county funded report designed to study the reestablishment of irrigation for Kilauea farmers after the tragic dam break in 2006, describes how within the past 10 years “someone” completely rebuilt the long abandoned Moloa`a Ditch to feed the Pflueger and the Mary Lucas Trusts’ lands and Ka Loko reservoir which sits on both.
The report also notes that the ditch connects to an 8” intake pipe on Pflueger’s property that undergrounds at that point just above the work for which Pflueger was cited which is above the reservoir. The intake pipe contains at least two branches, one for Pflueger’s land and one for the Trust’s land.
Apparently in addition to providing a higher water level in the reservoir for the Pflueger’s planned water sports development one of the purposes of the ditch was to provide residential use water for Pflueger’s planned resort community on the property because county water is not available in the area, according to Kallai
Since no one knew of the re-construction of the Moloa`a Ditch at the time of the inspections that led to the violation, apparently no one suspected that the grubbing and grading actually covered over a system of water pipes.
The pipes also provide water to others who own the Mary Lucas trust land including relatives of Pflueger who Kallai says, sued him over water rights in the 1990’s.
Although the particulars of that case are sketchy at present, the suit was apparently dropped and Pflueger was removed as the Trust’s head around the time the ditch was re-established.
At the time Pflueger, a Lucas heir, was the head of the Trust and was denying water to his relatives, in part for a mango farm on the Lucas Trust land according to Kallai who is familiar with the suit.
At a meeting to discuss the water situation Wed. night in Kilauea, according to Kallai one 80+-year-old-man who said he used to head up maintenance for whole the Ka Loko Reservoir and Ditch System said the Moloa`a Ditch was abandoned decades ago- perhaps as early as the 1920’s- because it was not needed for Kilauea sugar cane operations which ceased in the early 1970’s.
It had fallen into total disrepair but it remains to be determined how much of the “new” ditch was part of the old one and how much was constructed from scratch, including the three tunnels through mountains and the “ad hoc dam” at the point of diversion.
Kallai, a Moloa`a farmer, says that the estimates in the county report of how many gallons a day are being taken from the Moloa`a Stream is a severe underestimate, based on a quick glance done from a distance from the ditch and diversion rather than any real measurement.
Kallai estimates the value of the water at the county’s agricultural rate could be well into the billions of dollars.
Water rights in Hawai`i belong to the state and allotment by diversion is severely regulated based on the famous Hanapepe Water Rights case which has, in recent times led to cases like the Wai`oli Ditch decision that returned water to windward O`ahu streams and is currently being used to determine controversial water rights on Maui.
Kallai said that although we reported that she said that 200 farmers had already left Moloa`a she was rather referring to the number whose farming activities have been either curtailed or eliminated since the water in Moloa`a stream dried up 10 years ago and will have to leave if water is not restored to the stream.
She also alerted us to an April 13 2006 article by Malia Zimmerman of The Hawaii Reporter that tells the whole story we referred to Wed. regarding Kallai’s warnings that the dam was about to break just weeks before it actually did.
According to that article:
Pflueger was fined $12,500 by the state Department of Land and Natural Resources’ Commission on Water Resource Management on July 28, 2001, for altering the stream channel and diverting the stream without proper permitting for his properties at Hanalei and Kilauea, Kauai.
His water diversion activities also included those on his Pila`a property where another deluge took out the home and Kuleana of Amy and Rick Marvin due to grading of a new road done personally by Pflueger without permits.
Pflueger had constructed “lakes” on the property as part of activities that killed the Pila`a reef and resulted in his conviction on 10 felony counts and a 7.5 million EPA fine in 2006.
Kallai says those lakes were finally removed just last month as part of the remediation plan.
The article also notes:
James Pflueger, who owns the property from which the wave of water could have come, claims he never altered the waterway, the dam’s spillway or the dam height. "If you find anyone who knows I diverted streams, let me know and I'll come running," Pflueger told the Honolulu Star-Bulletin. Pflueger has so far refused to return calls to Hawaii Reporter.
But, despite Zimmerman’s requests for information an investigation the state’s extensive Godby report completed in the aftermath of the dam break has nothing about the diversion and no further investigation of it has occurred on the part of the state.
The diversion was not “discovered” until the description appeared in the county report that was released last Friday, although it is dated April 12.
The report posted on line is a draft and was presented with minor revisions at the Wed. Kilauea meeting according to Kallai upon whose descriptions of the meeting we have relied for this article.
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