(PNN) 10 YEAR OLD ILLEGAL DITCH FED KA LOKO BEFORE DISASTER- PFLUEGER IMPLICATED

10 YEAR OLD ILLEGAL DITCH FED KA LOKO BEFORE DISASTER- PFLUEGER IMPLICATED;

COUNTY REPORT EXPLAINS COMPLAINTS OF LOW WATER FLOW IN MOLOA`A STREAM

(PNN) The tragic Ka Loko Dam break that killed seven people may have been caused in part by a recently discovered water ditch that was either illegally constructed or reconstructed within the last 10 years and fed the reservoir

The existance of the ditch was revealed in a recently released 154 page Kaua`i County study entitled “Kilauea Irrigation Water Engineering Design and Monitoring Study”.

It describes the Moloa`a Ditch and concludes it was apparently reconstructed without permits after years of disuse during the period when owner Jimmy Pflueger- who is about to go on trial for murder- was cited for illegal grubbing and grading above the reservoir and, according to witnesses, filled in the “spillway” overflow outlet of the dam

The report does not conclude exactly who did the work to establish the flow in the ditch- a portion of the Ka Loko Resevior system- during the period when Pflueger restricted entry onto the property and, as PNN has previously and exclusively reported, allegedly attempted to increase the water level of what he called his “lakes” in order to accommodate water and jet-skiing for a planned but never built resort community development.

According to Tim and Hope Kallai of Malama Moloa`a this explains changes and the sudden drop in water flowing to the Moloa`a stream beginning 10 years ago that has inhibited agriculture in the valley and forced over 200 people to move. Due to stream flow reduction the aquifer is almost dry and wells no longer have sufficient water, for even residential purposes.

They say their complaints to the county were ignored and squelched by then-Mayor Maryanne Kusaka. Press reports have indicated that Kusaka attempted to help Pflueger cover up his illegal activities by directing the county engineer and others in the Pubic Works Department to ignore all complaints and bring them to her personally.

In addition the Kallais report that they warned the county of impending disaster less than a month before the dam break when a flooding event took out an old “government road bridge” below Ka Loko.

The county report describes the ditch system and the unpermitted new construction.

The historic Moloa`a Ditch is considered as part of the Ka Loko Reservoir system. Moloa`a Ditch, also on the Moloa`a Forest Reserve land, transports water diverted from Kalua`a Stream to Ka Loko Reservoir (see Section 5.2). The ditch is depicted on historic maps created by Kilauea Sugar Company and is identified in various documents as part of the Ka Loko system. No revocable permit for this ditch was found during our search of State records. It is likely that no revocable permit had ever been requested by KICO (Kilauea Irrigation company) for use of this ditch since at the time KICO was formed Moloa`a Ditch was in a serious state of disrepair, and would have required extensive repairs to regain function. The additional water from Moloa`a Ditch was probably not necessary to meet demand during the post sugar cane period....

A review of several historic documents revealed this ditch had fallen into a serious state of disrepair following the closure of Kilauea Sugar Company and we surmise that the water from this ditch was not necessary to meet the demands placed on the system by diversified farming. In addition, no permits were found authorizing the diversion of Kalua`a Stream and use of the Moloa`a Ditch (see Section 4.1). It is our understanding that sometime during the last 10 years a third party restored this ditched, allowing water to again be diverted from the stream and delivered to Ka Loko Reservoir. There were indicators that this ditch was maintained and that it had been cleaned out during the past several years.

According to the report’s executive summery

Councilman Jay Furfaro worked with County of Kaua`i (County) officials to initiate the project, which led to the County Office of Economic Development funding this study. The County’s intent was to provide funding for this study which would provide private stake holders with information necessary to select an alternative solution and pursue funding opportunities to implement the selected alternative.

The Kallais put the findings in perspective with a description of their efforts and observations of Moloa`a residents over the past 10 years. They write:

During the Kilauea Sugar plantation era, the Moloa`a ditch system delivered an “inconsequential amount of water” and fell into disrepair from non-use. Mysteriously, a new ditch system appeared – about the same time as the spillway at Ka Loko disappeared and the raising of the elevation of the dam face. Kalua`a is a perennial stream tributary that starts from a soggy seep on state forest land, flows into Moloa`a stream and is the main water source for Moloa`a stream.

Mysteriously, someone poured a new cement ditch system diverting Kalua`a water from Moloa`a stream into Ka Loko Reservoir and into a pipe system servicing Mary Lucas Trust lands and Pila`a. This extra water inflow allowed the impoundment of hundreds of millions of gallons of extra water in the increased-capacity Ka Loko reservoir (altered by removal of spillway and elevation of dam) beyond the intended storage capacity of the reservoir. At least until March 14, 2006.

Our ahupua`a based group of neighbors, Malama Moloa`a, formed about a decade ago around a common cause – the de-watering of the streams from Anahola to Kilauea. About the same time, late 1990’s, Moloa`a stream began changing. There were no flushing flows – high precipitation events didn’t cause the stream to rise as it used to. Sometimes, Moloa`a stream rose when there was no precipitation. A few times the stream ran really dirty – brown water and grey water (looking like cleaning up after a cement pour). Early 2000’s Moloa`a stream had a sand berm at the mouth that didn’t clear for 3 years, blocking the migration of o`opu.

When they tried to alert the county, Mayor Kusaka refused to acknowledge the evidence they had that something was wrong up stream. They continue:

Malama Moloa`a wrote many letters with maps and photos where we thought the diversion was, but Mayor Kusaka wouldn’t honor anonymous photos submitted to our group from the public. DLNR’s Commission of Water Resources Management (CWRM) sent a representative to investigate but they were escorted by a representative of a land owner who did not show them the new diversion from Kalua`a into the re-aligned historic Moloa`a ditch and into Ka Loko reservoir or the Mary Lucas/Pila`a pipeline.

Alterations to state land in the Moloa`a Forest Reserve by James Pflueger were revealed in the EPA Consent decree settlement, in very close proximity to the newly-created ditch system, and the unpermitted grading and grubbing remediated. Yet no agency present noticed the disappearance of the spillway or the increased flow into Ka Loko from a new, unpermitted stream diversion from Kalua`a/Moloa`a.

Then they reveal a previously unreported flooding event weeks before the final deluge that should have alerted county officials that the dam was about to break.

On Feb. 21, 2006, Moloa`a Stream experienced a destructive flood that took out the Old Government Road bridge in lower Moloa`a. Due to the volume of water and how long the flood lasted, we thought that Ka Loko had blown. We were told by county representatives “Ka Loko’s not full; it’s still holding. Don’t worry, if it blows, it will take out Kilauea side.” Three weeks later it did – killing 8 people. We believe what actually happened was the diversion experienced a log jam and Moloa`a regained it’s stolen water.

The Kallais’ letter is reproduced in full at Juan Wilson’s Island Breath web site.

The report includes this detailed description of the ditch- which flows through three tunnels in the mountain after being diverted by an “ad hoc dam constructed of rocks”- and describes the recent construction that increased the flow into Ka Loko by taking the water from a “perennial stream” which is prohibited under federal laws without necessary permits.

ELEPHANT IN THE DOGHOUSE

ELEPHANT IN THE DOGHOUSE: Kaua`i usually gets the shortest of shrifts when it comes to the two Honolulu dailies.

But when the big guns air lift in such as they did yesterday to bring Jimmy Pflueger to justice for murdering seven people (ok “allegedly”- there ya happy now) not only does the Advertiser fetch Diana Leone out of mothballs but the Star Bulletin adds insult to injury by asking downsized Tom Finnegan to file a “special to” report.

And as they and the local paper’s Michael Levine reported, Mike Dyer wasn’t the only one to warn Pflueger about filling in a spillway. The grand jury heard from Tom Hitch- who operated the irrigation system. He did the same and was also told to get lost.

The problem is that the picture that the Honolulu-bound get is one that Pflueger’s lead attorney attempts to paint- that somehow Pflueger isn’t to blame because the state and county didn’t stop him... kind of like saying a bank robber isn’t guilty because no one stopped him until after he robbed it.

And so a comment typical of many appeared below Leone’s piece today saying

Don't comment on this story until you have read the Kaloko dam report for yourselves. After reading that you can see that it wasn't one man all alone at that dam working all the construction himself to create that hazard. Do you know how OLD that man is? There was plenty of contributors to this tragedy, the STATE, and people like THE MAYOR, have some blood on their hands too, even if they dont (sic) want to admit it with such an accessable (sic) scape goat (sic) right there.

The incomplete, quickly-assembled “report” notwithstanding, no one is saying that the state and county weren’t lax, perhaps intentionally and corruptly on the part of the county and former Mayor Maryanne Kusaka who Pflueger says took a bribe from him to make sure the county looked the other way, if Malia Zimmerman’s report is to be believed.

How that somehow exonerates Pflueger is hard to fathom.

The fact that few outsiders know is that Ka Loko wasn’t the first time Pflueger made headlines on Kaua`i.

Two prior incidents- the infamous Pflueger “berm” and the Pila`a mudslide that presaged Ka Loko- should have raised red flags with county administration officials and did with the county council, especially then Councilperson Gary Hooser, when outraged local resident successfully demanded stricter grubbing and grading regulations.

During the “Developers Gone Wild” series of county council meetings over almost a year long period Hooser demanded that the matter be kept on the agenda every week as citizens presented weekly videos of the damage that Pflueger did, along with that caused by developer Tom McCloskey who also enjoyed a “special relationship” with Kusaka. McCloskey donated huge sums to a favorite charity foundation Kusaka controlled and allegedly promised her a luxury oceanside home in his Kealia Kai development.

The first time people on Kaua`i heard the name Pflueger- other than in ads for his Honolulu car dealership- was in the early 90’s when a “berm” appeared along the highway- a 40 foot high embankment that Pflueger illegally constructed on his property’s border without permits and with Pflueger at times seen personally driving the heavy equipment.

The Pflueger Berm, as it became known, blocked ocean view planes and after much protest he was made to take it down.

According to residents- many of whom told their stories before the county council- Pflueger has always had his scofflaw attitude, one that he had learned from McCloskey.

Historically on Kaua`i all that was ever done when illegal construction was done - especially so-called “grubbing and grading” which often included the flattening of hills and mountains- the only punishment the county had ever imposed had been to fine the developer a small amount of money and then usually allow them to file for “after the fact” permits which allowed construction that would have never been allowed in the first place to remain, sometimes with minor and usually useless “mitigations”.

It was way cheaper and more productive to just go ahead and do the dirty work and pay the fines and wind up with what they wanted than to go through the county permitting system and risk being denied.

One complicating factor- one that still has not been “fixed”- is that there were then and still are not now any administrative rules on the books for grubbing and grading fines on Kaua`i even though they were promised by Costa “within six months” after the new grubbing and grading ordinance was passed. The only way for the county to proceed is and was through judicial proceedings with a penalty of only up to $1000 and six months in jail.

But even after the berm episode the only lesson Pflueger apparently learned was that if he were going to do these things without permits, don’t do them along side the highway and block view planes.

His next move was to construct a road- with no plans or permits, using a bulldozer he rode himself- leading down the cliff side of his Pila`a property just above the kuleana of Rick and Amy Marvin.

And when the next heavy rains came a short time later the mountainside fell on top of the Marvin’s tiny house and the beach next to it, killing the reef by burying it under a few feet of mud.

This time Pflueger was fined by the federal government in what was the biggest fine of it’s type ever levied at the time. He still faces- and has managed to stall for many years- a civil damages lawsuit filed by the Marvins.

Then came Ka Loko.

Today Levine for the first time in the mainstream media reports part of what PNN has reported many times in the past:

Bennett also told Valenciano that the Grand Jury had heard testimony that Pflueger had filled in the spillway himself because the permitting process “took too long.” Bennett said illegal grading had been done on the North Shore property in the late 1990s to make room for a private home and a 49-unit condominium project that would have increased the land’s appraised value from $19 million to $68 million.
And Finnegan ends his piece by saying:

Bennett also provided evidence that, while doing the grading work in 1997-98 that allegedly caused the spillway to fill, Pflueger was making home sites so that he could subdivide his land and the land around the reservoir owned by the Mary Lucas Trust, of which he was a trustee and beneficiary.

Now we’re getting somewhere. As we have reported before, according to two sources- FOJ’s or Friends of Jimmy as many called them- this was the whole motive for filling in the spillway- to provide a “lake” as Pflueger called it and provide the “best water skiing on the island” as he told his FOJ's and even promoted in his plans for the development.

To say the county was at best negligent and more likely and apparently complicitous is not a new charge here on Kaua`i. And although the state was technically responsible under a then little known law requiring them to inspect reservoirs in practice the state depended on the county for enforcing grubbing and grading violations without which the dam probably wouldn’t have had any problems.

The county did it’s level best to look the other way, at times even falsely claiming to the council that it was impossible get access to the property unless Pflueger allowed them in until the council appropriated money to at least take an aerial look. As PNN reported at the time the Public Works Department hadn’t even asked the county attorney regarding entry and Kusaka had blocked them from doing so.

Then, after all that, after all the red flags, after all the uproar, after Pflueger was even fined again, this time for grubbing and grading just above the reservoir, the dam broke and killed seven people.

And despite that the current county council is still intent on spending millions defending the county rather than cooperating in the investigation and seeking to settle.

Yes, the county quite obviously is responsible too. And if criminal charges are pursued against Pflueger, to let Kusaka or County Engineer (CE) Cesar Portugal and Deputy and once-acting CE Ian Costa (who is now Planning Director)- both of whom knowingly did the bidding of Kusaka in obstructing any investigations- off the hook is certainly an abuse of prosecutorial discretion on the part of Attorney General Mark Bennett.

So of course Pflueger’s lawyers aren’t going to push the county’s guilt since it would be tantamount to admitting Pflueger’s guilt too. Instead they are concentrating on attacking the state, even though the state’s complicity is actually just negligence due to their dependence on a corrupt county as opposed to the active complicity of county.

How, given the bribery and persistent illegal activity for financial gain in the face of prior citations and outraged community, all this makes Pflueger a sympathetic figure and somehow immune from prosecution is something only the underinformed readers of the Honolulu papers could cogitate.