It’s right there in black and white: “DLNR does not have any documentation of a Registration of Stream Diversion Works and Declaration of Water Use, a Stream Diversion Works Permit, or a Water Use Permit for Moloa`a Ditch.”
Since the late 1990s, Moloa`a residents suspected something or someone was messing with the uplands to make their stream act so screwy. Sometimes it wouldn’t rise during heavy rain, sometimes it would rise without rain, it went dry two summers in a row, and sometimes the water flowed brown or grey, says Hope Kallai, one of four area residents who over the years expressed concerns to the state about the possible illegal diversion of a tributary of Moloa`a stream.
In May, when the consulting firm Sustainable Resources Group International, Inc., released a draft of its Kilauea Irrigation Water Engineering Design and Monitoring Study for the Kaua`i Office of Economic Development, the answer, Kallai says, was revealed.The Moloa`a Ditch had been refurbished, the report stated.
The original Moloa`a Ditch was part of the Ka Loko System on Kaua`i’s North Shore. The ditch, according to SRGII, was believed to have been used to provide water to what was known as Waipake Camp, and the water was used for domestic purposes and livestock.
A second Moloa`a Ditch later carried water from Kaluaa Stream to Ka Loko Reservoir. Kaluaa Stream eventually flows into Moloa`a Stream. The SRGII report states that the ditch begins in the Moloa`a Forest Reserve and flows to the northwest along the contour of the land onto Mary Lucas Trust property. A map prepared in 2006 by the Department of Land and Natural Resources indicating the intake of the newer Moloa`a Ditch suggests that the diversion originates on state land in the Conservation District.
According to the SRGII report, historic documents suggest that the second ditch fell into disrepair after the closure of the Kilauea Sugar Company. “[W]e surmise that the water from this ditch was not necessary to meet the demands placed on the system by diversified farming,” the report states. “In addition, no permits were found authorizing the diversion of Kaluaa Stream and use of the Moloa`a Ditch. It is our understanding that sometime during the last ten years a third party restored this ditch, allowing water to again be diverted from the stream and delivered to an area near Ka Loko Reservoir. There were indicators that this ditch was maintained and that it had been cleaned out during the past several years.”
The report also notes that in addition to providing water to the Ka Loko Reservoir, the refurbished Moloa`a Ditch also feeds a pond on land owned by James Pflueger, a sub-user of Mary Lucas Trust water, a trust beneficiary, and owner of Pflueger Properties.
Based on observations during an inspection, SRGII estimated stream flow at the diversion to be 1.29 million gallons of water per day, with approximately one third to one half of that flow (0.425-0.645 mgd) entering Moloa`a Ditch. SRGII’s report did not assess the potential impacts of the stream diversion from Kaluaa Stream. And although the company does not dispute a diversion at Kaluaa Stream would decrease the flow of Moloa`a Stream, SRGII notes that 1998-2001 was a period of low rainfall in the Moloa`a watershed, that no hydrologic studies on flows into Moloa`a Stream have been done, and that there is not enough information to conclude that the divresion is the sole reason for diminished stream flow in Moloa`a Stream.
Revelation
Even so, when Kallai read the draft and the final report, she flipped. She called federal and state officials, she wrote letters and emails, and filed complaints with anyone she thought could help restore the natural flow of Moloa`a Stream. And for the most part, she was either ignored or was told that action must wait until the lawsuits regarding the Ka Loko Dam conclude.
And that’s part of her problem. After weeks of rain, in March 2006, the 400 million gallon Ka Loko Reservoir burst, killing seven people. The Mary Lucas Trust, James Pflueger, the state, Kilauea Irrigation Co., Inc. (which operates the irrigation systsm), KIC owner Tom Hitch, the victims’ families, and affected property owners have been embroiled in civil and criminal cases regarding the breach since then. Trials have been scheduled for next year.
In a May 20, 2009, complaint to the state Commission on Water Resource Management, Kallai wrote that because of the illegal diversion, “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.”
In 2001 and 2002, Kallai, Greg Osborn and Bill Chase, on behalf of the community group Malama Moloa`a, wrote to CWRM about what they thought was an illegal diversion of a tributary of Moloa`a Stream. Also in 2001, downstream taro farmer Daniel Garnet filed a separate complaint with CWRM about the diversion of Kaluaa Stream. He attached a map where an “unmarked ditch appears to be taking a considerable amount of water from this tributary.”
He added, “the additional dirt/sediment added to the stream has not only silted it and muddied it considerably, but the water level has suffered due to the plugging it has caused….The river level dropped considerably in June and has lowered the water so as to dry my lo`i. Growing taro with no water is difficult if not impossible.”
On February 1, 2002, CWRM requested permission from Pflueger to inspect the Mary Lucas Trust property, which is where staff believed the diversion originated. On February 5, CWRM staff met with William Tam, one of Pflueger’s attorneys. Tam told CWRM that he and Kaua`i attorney Max Graham inspected the area of concern on January 16, which he said was not owned by the Mary Lucas Trust but by Pflueger Properties.
In a February 13 letter to CWRM, Tam wrote, “At our February 5 meeting, we examined the topographic and tax maps and were able to make some important findings.” Particularly noteworthy was their conclusion that “if there is any diversion that would feed Ka Loko Reservoir, the diversion would have to originate far back in State of Hawai`i land. Since water does not run upgrade, the steep upgrade slope from Moloa`a and Kaluaa streams towards the higher elevation Lucas Trust land and Ka Loko Reservoir make it physically impossible for a diversion from private land to reach the Ka Loko Reservoir.
“Given the physical impossibility of water flowing from the Moloa`a or Kaluaa streams from private land uphill to either the Lucas Trust or to Ka Loko Reservoir, I requested that you contact the complaining party to identify the specific location of the alleged diversion….You agreed to inquire further about the location before we proceed any further.”
According to CWRM ‘s Ed Sakoda, commission staff planned to follow up, but did not get to inspect the area before the Ka Loko Reservoir broke. And with the lawsuits that followed, he says, the agency’s attorney has advised it to put its investigation of the matter on hold. (DLNR engineers did get to inspect the area a few weeks after the breach and observed an inflow ditch on state land near Kalua`a Stream, crossing Mary Lucas Trust land and feeding the Ka Loko Reservoir.)
In Limbo
Even though the diversion has been identified as illegal, the state does not appear to have any immediate plans to do anything about it.
For decades, the Kilauea Irrigation Company, Inc., has had a month-to-month revocable permit to use state land to divert water from Pu`u Ka Ele stream into the Ka Loko Ditch. The state Board of Land and Natural Resources renewed the permit annually, but after the reservoir broke, KIC owner Tom Hitch could not find a single company to renew his liability insurance policy at a premium he could afford. The policy expired December 31, 2006.
Because liability insurance is required of all permit- or lease-holders of state land, and perhaps also because Pflueger Properties and the Mary Lucas Trust ordered the DLNR to stop the water from entering Ka Loko Reservoir, the Land Board revoked KIC’s permit on September 28.
However, Kilauea farmers who rely on KIC water pleaded with the Land Board to keep the water flowing until a solution could be found. Land Division administrator Russell Tsuji noted that it would likely take three to six months to obtain the Conservation District and Stream Channel Alteration permits that might be needed to physically stop the diversions. He recommended that the permit’s termination date be delayed until KIC obtained those permits, and the board agreed.
Land Board chair Laura Thielen added that she would work with the state Department of Agriculture on the possibility of transferring the diversion rights to the farmers, perhaps to a farmers’ co-op should they decide to form one.
Although the board’s decision was intended to address KIC’s lack of insurance while giving the community time to resolve the issue, it appears that little has been done since.
The DLNR’s Office of Conservation and Coastal Lands has not received any application for a permit to dismantle the diversions and the most recent correspondence in files with the Land Division is a December 24, 2007, letter from Hitch asking that the DLNR refrain from stopping the flow into Ka Loko Ditch. By this time, Hitch had rented his house and moved to southeast Asia, blaming the move on his inability to get general liability insurance. Because he couldn’t work as a licensed contractor, he couldn’t afford to live in Hawai`i, he wrote.
Hitch added that hundreds of people will be adversely affected if water no longer flows in the ditch, including KIC’s 20 customers, most of them organic farmers. He added, “I have no intention of abandoning [KIC], my decades of hard work or the farmers. Besides, [KIC] is a monopoly regulated by the PUC [Public Utilities Commission] and is mandated to stay in business as long as it has rate holders requiring its services. I could not shut down [KIC] even if I wanted to.”
Hitch wrote that he hired certified water system operators Val Inanod and Rowland Wong to maintain the ditch in his absence.
“The PUC, like the DLNR, also has an insurance requirement policy but in the interest of the customers (rate holders), and being extremely knowledgeable about the entire situation, the PUC has chosen, unlike the DLNR, not to enforce its insurance rule. Once the litigation is over [KIC] should once again be able to obtain insurance,” he wrote.
No response could be found in Land Division files, but Kallai insists that the Moloa`a diversion should stop immediately.
“You can’t say it’s illegal and keep using it,” she says of the Kalua`a diversion.
And the SRGII report seems to agree. It states, “Moloa`a Ditch is unpermitted and during the community meeting on the draft report we were made aware that any diversion of waters from the Moloa`a watershed would be challenged. We therefore do not recommend Moloa`a Ditch be used or that KICO or others acquire permits to allow the use of water derived from the Moloa`a watershed.”
The report does, however, recommend that the KIC ditch and Ka Loko system continue operating, despite their physical deficiencies and legal and regulatory obstacles.
“[I]t is our conclusion that these deficiencies can be overcome, and with some improvements to both the infrastructure and operations, the systems can continue to function into the foreseeable future,” it states.
Note: This article has been corrected and amended to more accurately reflect the findings and position of Sustainable Resources Group International, Inc., author of the Kilauea Irrigation System report. A letter from SRGII detailing the errors and misstatements in our print version appears in our October 2009 issue.