(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) 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.