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

(PNN) REPORT: DAM DITCH INTAKE AND RETURN WATER TO MOLOA`A STREAM

REPORT: DAM DITCH INTAKE AND RETURN WATER TO MOLOA`A STREAM

(PNN) -- Moloa`a Stream's flow will be “restored to it’s natural state” if a consultant’s recommendation are followed, the county council was told Wednesday.

But although Moloa`a water activist Hope Kallai, who has pushed for the return of water to Moloa`a residents and farmers, was pleased, she also said not so fast there. She explained that the point of diversion is on conservation land and any effort at all would need permissions and permits to work on the current stream alteration that diverts river water into Moloa`a Ditch.

In addition, although Kallai did not mention it, water course alterations also usually need federal permits.

In a presentation of the final draft of the “Kilauea Irrigation Water Engineering Monitoring Study”, Andy Hood of “Sustainable Resources Group International Inc.” told council members that the water that flows into the Ka Loko Ditch system from the Kalua`a tributary of Moloa`a Stream is “not needed” to sustain agriculture in the area and “recommend(ed) at the point of diversion at Kalua`a stream, the intake to Moloa`a ditch be dammed up and restored to its natural state”.

Hood said that although “Moloa`a Ditch had never been registered to receive a stream works diversion permit nor was the ditch permitted” there was “nothing sinister” in that and there was “no malfeasance”. Rather he theorized that Brewer Inc, who owned the land prior to 1987, “just didn’t need the water” and the permitting “slipped through the cracks”.

He did not mention the part of the original draft report that says that the current condition of the intake dam was apparently the result of work done only about 10 ago, as PNN reported in its series on the Moloa`a Water theft (see left “rail” for links to prior reports).

Hood said that the Mary Lucas Trust (MLT)- which according to a 1987 “allocation” shares the water equally with the Kilauea Irrigation company (KICO) and owns land abutting Ka Loko Reservoir- has agreed to pay for restoring the flow to farmers and residents in Moloa`a Valley who say they have noticed a marked decrease in water flow and area wells ever since the late 90’s around the time the work was allegedly done.

According to that 1987 water rights agreement to serve the 105 acre “Kilauea Farms Subdivision” below the reservoir, KICO and MLT are to share the water “50-50”, Hood told the council.

But State Aquatic Resources Kaua`i Manager Don Heacock said that water rights nowadays are subject to the “pubic trust doctrine”- as established in the Wai`ahole Ditch Hawai`i Supreme Court decision- and should be allocated based on need and use by the “State Commission of Water Resources”.

Hood said that he could not determine use by KICO because it’s owner Thomas Hitch has seemingly disappeared and the current users claim “proprietary information” that “their competitors” would like to get their hands on a survey of the users done for the study drew few responses.

In addition due to the massive and complicated litigation surrounding the March 2006 Ka Loko dam break tragedy that killed seven people downstream, no one wants to talk about anything although he said much of the report would not have been possible without the discovery” process as a result of the suits.

He also said MLT only uses the water they receive to support around a hundred head of cattle.

One discrepancy as stated by Hood is that MLT receives water through a pipe that takes water from the Ka Loko ditch way up valley but also shares a 50-50 use arrangement just above the reservoir implying that MLT may be receiving much more than 50% despite their limited need.

In a power point presentation cut short by the enforcement of the council’s “three minutes” rules, Kallai presented documents showing that prior to the ’87 agreement both the county council in 1979 and the Water Department subsequently, had designs on the water. The council wanted to supply planned “diversified agriculture” in the entire Kilauea area from Kalihiwai to Moloa`a and the Department wanted some for potable water.

As to whether there is sufficient water to serve the Kilauea Farms subdivision- which was the actual subject of the $75,000 study initiated by Councilmembers Jay Furfaro and Darryl Kaneshiro- the answer is “just barely” under the current arrangement and condition of Ka Loko reservoir.

Hood provided a few options for increasing the flow including a limited repair of the breach at the bottom of the reservoir where overflow currently runs down valley into the ocean when the three big pipes that remove the water for irrigation are fully supplied.

Kallai claimed that the overflow is a huge mess that was never investigated by the EPA, and never cleaned up making the damage downstream and to the reef and ocean something that would “make Pila`a look manini.”

Some councilmembers wanted to know if and how the system might serve the entire Kilauea area since it is just barely sufficient in its current state to serve the Kilauea Farms Subdivision. But it was determined that historically there were other components of the entire Kilauea Sugar Company operations irrigation system, including the Kalihiwai reservoir which originally served some lands in that area until sugar production was shut down in the early 70’s.

That area would include the new Kilauea Agricultural Park that the county has recently obtained after a 30 year battle to acquire and set it up. Present plans are to use the potable county water system for the farm rather than a the old gravity driven cane ditch system.

The council discussed briefly whether funding a wider study to get a comprehensive idea of the water resources and needs- and current flows which were not in the report aside from some guesswork on the Ka Loko system- but Heacock recommended contacting the state Department of Land and Natural Resources (DLNR), the federal Department of Agriculture’s National Resources Conservation Service and the US Geologic Service in Honolulu to get them to coordinate and possibly fund the study since it was essentially their kuleana.

Heacock said that there are actually 26 streams that feed Ka Loko system, something Hood intimated when saying that the flow intake at the head end of the Ka Loko system was less than the amount flowing at the end, guessing that there were areas where streams fed the ditch at lower elevation although his staff did not observe them.

And of course that net gain includes the previously mentioned “pipe” at higher elevations that removes water for MLT’s cows

Heacock said there needs to be a full disclosure on “what’s being serviced- what crops are being grown” implying that some farms’ claim to “proprietary information” was not going to get them water if the “public trust” involved in water rights is enforced.
Kallai was denied permission by Economic Development and Housing Committee Chair Dickie Chang to use the testimony time of the roomful of KNA members present and was cut off without being able to finish her whole presentation which included documents not in the county report, many from a 1984 federal study of ag in the Kilauea area and water usage stakeholders at that time that were excluded in the ’87 agreement between KICO and MLT.

But as she was being given the bums rush she did mange to blurt out that the intake was on state conservation land and therefore no activity may take place without the DLNR’s permission and no changes to water flow may be effectuated without the OK of the DLNR’s “Commission of Water Resources” which determine water usage based on the Wai`ahole pubic trust doctrine.

Despite the testimony by Hood regarding Moloa`a Ditch, previous to and in anticipation of Kallai’s testimony Councilperson Darryl Kaneshiro and Council Chair Kaipo Asing attempted to limit her testimony because the specific subject of Moloa`a Ditch wasn’t on the council’s official agenda. But councilperson Jay Furfaro countered that under the state sunshine law the public was permitted to speak “off agenda” at the discretion of Committee Chair Chang.

The 155 page PDF file of the report is available on-line. It was funded through the county’s Office of Economic Development.

(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

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.