Failure of man? Pflueger attorney: study faulty

On the first year anniversary of the March 14, 2006, Ka Loko Reservoir Dam breach that left seven people dead, the attorney for landowner James Pflueger questioned the validity of an independent investigation stating the lack of a spillway probably caused the dam to fail.

Honolulu attorney William McCorriston said the five-month study done by Robert Godbey can’t be considered an independent study because Godbey works as a deputy attorney general and is answerable to Attorney General Mark Bennett.

“It is far from independent,” McCorriston said yesterday.

Godbey states in his report that the point of the five-month investigation released in January was not to blame any government agencies or individuals, but to produce recommendations to prevent a similar tragedy from occurring in Hawai‘i.

With regard to the Ka Loko dam, Godbey noted that the lack of a spillway at the dam, as well as other circumstantial evidence, would indicate that the dam likely failed by overtopping.

The study alluded to other possible causes: “Internal erosion of the embankment” or “dam foundation materials by seepage can lead to formation of a conduit or pipe through the embankment or foundation that can lead to the eventual collapse of the crest,” Godbey wrote.

McCorriston said the spillway was left to deteriorate when it was owned and operated by C. Brewer, and it is now covered with vegetation.

The report notes that records exist to indicate that the reservoir regularly filled to the “height of the emergency spillway” in the past.

The study notes that there exists evidence “going back to several decades of concern” about seepage.

The state and county government mounted many efforts in the past to check the safety of the dam and to check what was reported as unpermitted grading near the dam on land owned by Pflueger.

In June 1987, the state Department of Land and Natural Resources became the lead state agency for the regulation and inspection of dams in Hawai‘i.

From 1993 to 1998, DLNR contracted consulting firms to inspect “high-hazard reservoirs,” the study states.

The Ka Loko Reservoir was not lumped with that group and was not inspected. In 1992, the U.S. Army Corps of Engineers conducted an assessment of earthen dams on Kaua‘i after Hurricane Iniki devastated the island.

DLNR, however, didn’t conduct an on-site investigation because an aerial survey showed no damage.

Five years later, the county’s Public Works Department documented the grading of a hilltop next to the dam and the presence of heavy equipment. The agency found violations of the county’s grading ordinance, issued a notice of violation to Pflueger and ordered the work stopped.

On Nov., 26, 1997, the civil engineer involved in that investigation was summoned into then-Mayor Maryanne Kusaka’s office, the study said, where he was questioned and instructed to stop all actions against Pflueger.

On Nov. 24, 1997, Tom Hitch, working for the Kilauea Irrigation Company, went to the dam with two helpers to clear a deep pit containing a reservoir valve, which Pflueger indicated he wanted filled.

The study states that while grading on the makai rim of the dam had begun, the valve pit and the emergency spillway had not been affected.

Shortly after Hitch cleared the valve pit, it was filled with earth. At the same time, earth was moved onto a spillway, apparently as part of a grading effort to create flat building sites around the dam, the study states.

Residents became aware of the grading and that “the spillway has been affected,” the study states.

In 1999, the DLNR sent a letter to Pflueger asking for a visual safety inspection of the dam and other work.

The letter was resent in 2000, but there was no record of any response to the second letter, and no inspection was conducted, the study states.

DLNR made another unsuccessful attempt in December 2001.

Government officials could not have entered private property without approval of the landowner, which was Pflueger in this case.

The study said KIC had disputes with its customers, including Pflueger, who was unhappy with the maintenance of the Ka Loko ditch and the water level in the reservoir.

KIC, in turn, was not happy with Pflueger for turning off the irrigation water at the reservoir and making access to the system difficult, the study states.

McCorriston said Pflueger can’t be held accountable for loss of life or flood damages because KIC had the sole responsibility of maintaining the dam, the irrigation system and the spillway.

“He was the landowner subject to the water rights agreement, and he had no authority to operate and maintain and regulate,” McCorriston said.

In 1985, the state Public Utilities Commission authorized KIC to operate as a public utility to sell water to users, including farmers in Kilauea.

Pflueger entered into that water agreement in1987, when he bought the land on which the dam is located, McCorriston said.

The study states that in that year, KIC and Lucas Trust, which owned a portion of the reservoir, entered into the water rights agreement in which they agreed to share the water from the Ka Loko system, with KIC having the responsibility of operating the system.

Though many of the details that came out in the independent report seem to indicate culpability, Godbey states, that is not the case. “That is what litigation is for,” he states in the footnotes of the report.

Buildings were legal

Kaua‘i County officials found no building violations connected with three buildings that were swept away in the Ka Loko Reservoir Dam breach March 14, 2006 that took seven lives.

“As far as we know they were properly placed,” Public Works spokesman Doug Haigh said yesterday.

While Bruce and Cyndee Fehring have been greeted by an outpouring of sympathy for the loss of a grandson, a daughter, son-in-law and four friends, the question as to whether the homes were permitted has come up during ongoing investigations. The findings of the continuing investigations will have bearing on more than 20 lawsuits stemming from the tragedy.

Whether the buildings on the Fehring property were properly set back from the Wailapa Stream prior to the breach will be the furthest thing from Fehring’s mind when he and others gather to remember the event today.

“No public ceremony,” he said Monday. “We are going to gather with friends and meditate on what is happening and try to see what good we can make of it.”

He said the gathering will “honor our children and our losses.”

Last year’s tragedy occurred after 40 days of near-constant rain bloated the Ka Loko Reservoir breaching the dam, releasing 400-million-gallons of water down the stream and slamming into three homes owned by Fehring and his trust.

Fehring said it was his belief the tragedy has generated “in excess of 20 plaintiffs” against property owner James Pflueger, the state of Hawai‘i and Kaua‘i County.

Fehring has filed a wrongful death lawsuit and a property damage lawsuit.

Bette Midler, a Hollywood actress, singer and a Kaua‘i landowner, has been a lead plaintiff in a property damage suit. She lost a portion of her property to the flood.

On whether the three buildings on his property were properly placed above the stream, Fehring said in an earlier interview, “Absolutely.”

Haigh said a Public Works inspection “showed no outstanding (building) violations at the time of the flood.” A summary of the inspection has been sent to the County Attorney’s Office for review.

Government doesn’t determine a “100-year flood setback line” for homes built in areas where flooding may occur, said a county official who did not want to speak on the record for fear of litigation.

In theory, the setback places homes far above the catastrophic flooding line — generally the worst one that could occur in 100 years in a specific area.

Generally, a developer wanting to subdivide land has to hire a hydrologist to produce a study establishing the “parameters” for the 100-year setback line and setting the line, said the official.

The study is part of the county’s requirement for subdividing land for projects, officials said.

County documents show one for the Fehring property.

The records also identify several owners within the 22-acre condominium property regime project, whose borders run along the Wailapa Stream.

Fehring owns two units totaling nearly 9 acres, Clifford Coffyn owns a half-acre unit, Patrick Wheat owns 5.4 acres and the Cheryl Wright Trust owns about 3 acres, according to the records.

Developers have pursued the building of condominium property regimes over subdividing properties to reduce the cost of infrastructure. Owners collectively pay for improvement and repairs in such projects.

Also, because no known dam in Hawai‘i has breached, a “catastrophic flow event study” probably was not done for the 22-acre, CPR property, officials said.

The Ka Loko Dam was classified “low risk” and as such did not have an Emergency Action Plan.

The onus of telling government where buildings are placed on a property falls on homeowners, officials said.

In seeking government permits, the landowner or his or her representative is required to give the county Planning Department at least five days notice before work on the foundation or footings begins. This way, officials can verify applicable and approved setbacks.

At the same time, work on homes allowed through the permits will be reviewed by county inspectors or authorized personnel of the planning department.

Haigh also said a county permit was issued prior to the flooding to allow Fehring to relocate one of the three buildings.

• Lester Chang, staff writer, can be reached at 245-3681 (ext. 225) or lchang@kauaipubco.com.

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