Relevance of Ka Loko report uncertain

Points to early awareness of structural problems

By Ford Gunter – The Garden Island

A 22-year-old joint state-federal report that identified problems with the structural stability of the Ka Loko Reservoir Dam could further muddy the waters surrounding the tragic March 14 breach.

The Kilauea Agricultural Water Management Study Report, dated June 1984, is the first documented evidence that something could have been wrong with the integrity of the Ka Loko dam.

“Field surveys conducted by SCS (Soil Conservation Service) engineers indicate that the structural stability of the Ka Loko Reservoir is questionable because of the seepage observed at the toe of the embankment and the dense growth of hao, guava and palm trees on the downstream face of the embankment,” the report states.

A preliminary SCS report, dated November 1982, concluded that almost $1.9 million dollars worth of work needed to be done to the dam.

An attorney for dam owner Jimmy Pflueger presented the report to the Kaua‘i County Council meeting Wednesday afternoon.

“First of all, I’m just shocked that this type of information was available as early as 1982 to the state of Hawai‘i, and apparently nothing was done with it,” said Honolulu-based attorney William McCorriston.

“Jimmy Pflueger would have loved to have known that someone in a government agency had a significant question before he bought the property,” he said. “If he knew that, and he had known it would take (more than) $1.8 million to address the problem, his decisions would have been far different.”

Pflueger, a retired Honolulu car dealer, bought the property from C. Brewer in December of 1987.

No records have been found that show repairs or any other follow-up were conducted after the report in 1984.

The U.S. Department of Agriculture Forest Service and Soil Conservation Service prepared the report together with the state Department of Land and Natural Resources and the East Kauai Soil and Water Conservation District.

The agencies conducted the study to assess whether the former Kilauea Sugar Company’s irrigation system, which included the Ka Loko Dam, might be used to support other crops in the region.

To McCorriston, the involvement of both the state DLNR and the EKSWCD, a non-profit organization that works with the county of Kaua‘i, means that both the state and county knew of Ka Loko’s instability.

“We do take into consideration what (the EKSWCD) says, but I couldn’t tell you offhand whether or not the results of that report were released to the administration,” said county public information officer Mary Daubert.

Ted Inouye of the EKSWCD said he is not familiar with the report, or the original incident since he has only been active in the organization since 1990.

DLNR director Peter Young said, before the Dam Safety Act of 1987 gave responsibility for inspecting the state’s dams to the DLNR, the U.S. Army Corps of Engineers was responsible.

“Isn’t public safety a state concern?” McCorriston said. “When the state did give the DLNR the responsibility in 1987, why didn’t they act on it? What’s the excuse? Wouldn’t the Kaua‘i planning officials liked to have known?”

Sen. Gary Hooser, D-Kaua‘i, had not seen the report yet, but acknowledged the implications.

“It certainly looks like the state and the property owner were made aware of the condition when the report was filed,” he said. “It sounds obvious.”

State officials are also quick to point out the study was not intended to assess the dam’s safety.

“It’s focus was on irrigation in the Kilauea area,” said DLNR director Peter Young. “It’s not a dam inspection report. It’s a report that raises some questions to the condition of the Ka Loko dam over 20 years ago. It’s part of the big picture, but it’s not the answer.”

Young, who has been with DLNR for three years, said he didn’t know what actions, if any were taken back then. He became aware of the 1984 report several weeks ago and forwarded a copy to the state attorney general’s office, which is conducting a criminal investigation into the causes of the dam’s collapse.

Attorney General Mark Bennett was out of the office Thursday and unavailable for comment until Monday, members of his staff said.

“(McCorriston) is citing a report that’s over 20 years old and he represents someone who has the legal responsibility to maintain that reservoir,” Young said.

A short reprieve

While the report seems to be the first solid indication that blame could lie somewhere beyond Pflueger, McCorriston said the exoneration for his maligned client will be temporary.

“The attorney general is spending $1 million to target only property owners,” he said. “I don’t think that’s going to change.”

Hawai‘i state law assigns full responsibility of dams and reservoirs to the owner of the land.

“In the law, and the attorney general has confirmed this, the responsibility for the operation and maintenance of a dam is with the owner,” Young said.

McCorriston is not surprised by the state’s stance.

“There’s a preconceived agenda to blame everything on Jimmy and obscure the state’s responsibility in what’s happened,” he said. “We’re working hard to do an investigation of our own because we don’t have any confidence that the state’s investigation will be fair to Mr. Pflueger.”

Water-rights agreements

Part of that investigation includes former owner C. Brewer, whom McCorriston said contested the original findings in 1982, did not make improvements to the dam after the final report was released in 1984, and certainly did not notify his client of any structural issues at the time of sale.

Ken Kupchak, attorney for C. Brewer, said he has only been on the case for 10 days and hasn’t had time to examine all the evidence, including the report, but said that C. Brewer never owned the dam.

“C. Brewer owned stock in Kilauea Irrigation,” he said.

Kilauea Irrigation owned the easement rights and irrigation system fed by water from Ka Loko, until it was sold to Tom Hitch for $10 in December of last year.

Hitch, who ran Kilauea Irrigation for C. Brewer as an independent contractor for 15 years before purchasing 100 percent of its stock, was not available for comment.

McCorriston also calls into question the sale, which was subject to approval by the state Public Utilities Commission.

“In our review of the PUC letters, there was no inquiry into Mr. Hitch’s financial ability to operate, maintain or repair the system,” he said. “It’s hard for me to understand how a public utilities commission can rule on a transfer without that type of information.”

PUC spokesperson Stacey Djou said it was a sale of stock, not land or the reservoir.

“The commission felt that Hitch had sufficient knowledge of the water system and its customers to maintain the system,” she said. “The Consumer Advocate, whose job it is to protect the public interest, is a party to all our proceedings. They felt the same way.”

Either way, when Pflueger bought the land from C. Brewer Properties in 1987, the deed was subject to a water-rights agreement with Kilauea Irrigation, stating that the company, which was a subsidiary of C. Brewer at the time, would be responsible for the maintenance and upkeep of the irrigation system, which includes the dam.

Some then argue that the responsibility transferred to Hitch when he bought out Kilauea Irrigation for $10.

“What the water-rights agreement says is open to some interpretation,” Djou said.

McCorriston said C. Brewer offered the irrigation system to Pflueger for $1, but he declined.

“He didn’t want the responsibility and liability,” McCorriston said. “He understood there was a lot of maintenance that the Brewer companies hadn’t put any money into.”

State focus

When it comes to Kaua‘i’s dams, the DLNR is looking forward rather than back.

“What’s more important is that we have just finished a statewide inspection of all the dams and reservoirs and we have sent those results to the owners of Kaua‘i (reservoirs),” Young said.

He said nothing was alarming enough to cause immediate concern, but recommendations were made to some of the owners to address some issues and take appropriate corrective measures. Young declined to release the names of the reservoirs in question, saying he wanted to give the owners a chance to act before having to answer to the public.

• Ford Gunter, staff writer, may be reached at fgunter@kauaipubco.com, or 245-3681 (ext. 251).

The Associated Press contributed to this article.

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