{"id":14391,"date":"2022-05-01T23:50:00","date_gmt":"2022-05-02T09:50:00","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14391"},"modified":"2022-05-06T12:18:34","modified_gmt":"2022-05-06T22:18:34","slug":"complex-ownership-regime-delays-fix-to-high-hazard-reservoir-in-north-kauai","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14391","title":{"rendered":"Complex Ownership Regime Delays Fix To High Hazard Reservoir in North Kaua\u2018i"},"content":{"rendered":"\n
\"\"<\/a>
Waiakalua Reservoir. Credit: DLNR<\/sub><\/figcaption><\/figure>\n\n\n\n

The owners of lands beneath and surrounding the Waiakalua Reservoir in North Kaua`i are facing $65,000 in fines if they don\u2019t steadily progress toward making the sugarcane plantation-era fixture safer.<\/p>\n\n\n\n

The reservoir is relatively small compared to the Kaloko Reservoir, which failed in 2006 after more than a month of rain. The resulting flood killed seven people.<\/p>\n\n\n\n

While Kaloko\u2019s maximum capacity exceeds 450 million gallons, Waiakalua\u2019s is just under 72 million.<\/p>\n\n\n\n

Even so, the state Department of Land and Natural Resources\u2019 Engineering Division, which administers the state\u2019s dam and reservoir safety program, has classified the Waiakalua Reservoir as a high hazard dam, because its failure would probably result in the loss of human life.<\/p>\n\n\n\n

In April 2009, an inspector with the division found extensive seepage from the 275-acre earthen reservoir, which was likely causing soil erosion.<\/p>\n\n\n\n

Built in the 1920s, the reservoir extends across three agriculture-zoned parcels. While the parcel directly beneath the reservoir is owned by the non-profit entity He Makana Ka Wai, the other two \u2014 where embankments and other appurtenant features are located \u2014 were developed decades ago into condominium property regimes.<\/p>\n\n\n\n

As a result, there are currently nine \u201cowners\u201d who are responsible for managing and maintaining the dam safety standards of the reservoir. Most of those owners reside on the mainland.<\/p>\n\n\n\n

In a March 11 report to the Board of Land and Natural Resources, the Engineering Division noted that the lack of any organizational structure among the owners to meet their legal responsibilities \u201chas resulted in non-unified attempts \u2026 to cover the operations, maintenance, and any necessary improvements to the structure. Therefore, operation, maintenance, and improvements have mostly been localized to the properties of a few owners and have not holistically addressed the structural deficiencies of the dam. This lack of clear responsibility and unified effort poses elevated safety risks beyond that already posed by structural deficiencies, as there is no single operator or point of contact that is reliably able to do maintenance or take emergency actions for the entire structure.\u201d<\/p>\n\n\n\n

Despite the division repeatedly sending notices of dam safety deficiency to the reservoir\u2019s owners over the years, starting in 2009, the seepage problem remains.<\/p>\n\n\n\n

Deficiency Notices<\/em><\/strong><\/p>\n\n\n\n

Following an April 21, 2009, notice of deficiency from the Engineering Division, one of the owners hired the consulting firm Sustainable Resources Group International, Inc., to do a seepage study. The company completed a draft report in September of that year, which was then submitted to the Engineering Division.<\/p>\n\n\n\n

The study found that the amount of water seeping through the reservoir embankment varied exponentially depending on the amount of water in it. But according to the Engineering Division\u2019s chief engineer, Carty Chang, the draft report failed to answer critical questions. The cause and even the location of the seepage were still unknown, and the consultant did not evaluate the embankment\u2019s stability, he stated in a September 2014 deficiency notice to the owners.<\/p>\n\n\n\n

\u201cAlthough dams may be able to seep, the seepage must be able to be explained, the seepage needs to be controlled appropriately, [and] the stability of the embankment needs to be evaluated and shown that the embankment is stable under the various loading conditions,\u201d Chang wrote.<\/p>\n\n\n\n

That letter stemmed from an inspection a few months earlier, which again found extensive seepage at the downstream toe of the reservoir\u2019s left embankment. <\/p>\n\n\n\n

The reservoir\u2019s water level at the time was 14 \u00be feet. (The overall height of the reservoir is 26 feet.) To reduce the risk of a dam breach, the division required the reservoir owners to lower the water level to nine feet, which they did.<\/p>\n\n\n\n

Among other things, Chang ordered the owners in a June 2014 deficiency notice, and again in the September notice, to hire a professional engineer to assess the seepage and slope stability of the embankment and provide the division with remediation recommendations.<\/p>\n\n\n\n

\u201cFailure to meet the above requirements could result in an order to drain the reservoir, and\/or be subject to penalties up to $25,000 a day,\u201d he wrote.<\/p>\n\n\n\n

As requested, the owners cleared access to the reservoir\u2019s weir so that it could be measured. They also provided water level reports to the division on a weekly basis.<\/p>\n\n\n\n

Despite this progress, a 2015 inspection found that the water level had increased to 11 feet and the owners had still not hired an engineer to do the seepage and stability assessment.<\/p>\n\n\n\n

The division issued another notice of deficiency in December 2015.<\/p>\n\n\n\n

Six years later, another inspection found the dam to be in \u201cpoor overall condition and a threat to public safety,\u201d according to a September 27, 2021, notice of deficiency. <\/p>\n\n\n\n

The notice ordered the owners to submit a schedule to complete the technical studies by December 1 of last year and submit them to the division by April 1 of this year.<\/p>\n\n\n\n

The owners were also directed to submit a permit application for the remediation, repair, or removal of the reservoir by December 1 of this year.  <\/p>\n\n\n\n

They were instructed to clear by February 1 of next year vegetation that was impeding proper inspection of the reservoir and was also posing a safety hazard, and to start improvements of the reservoir itself on December 1, 2023.<\/p>\n\n\n\n

In January, the owners asked the Engineering Division to extend the deadlines.<\/p>\n\n\n\n

Cats Herded<\/em><\/strong><\/p>\n\n\n\n

At the March 11 meeting of the Board of Land and Natural Resources, the Engineering Division asked the board to authorize its chair, DLNR director Suzanne Case, to extend the study submission, dam safety permit application, and vegetation clearing deadlines by three months, and the deadline to start construction of improvements to six months after the board approved the dam safety permit.<\/p>\n\n\n\n

\u201cWhile the three-month delay requested by the owners may not be warranted, it may still be the most expeditious path to improving the safety of the structure. Imposing large fines immediately might stop the momentum of the owner concurrence and consultant studies while not providing any significant acceleration of progress toward dam safety. \u2026 However, based on history of inaction, we recommend pre-approving enforcement actions should the new deadlines be missed,\u201d the division stated in its report to the board.<\/p>\n\n\n\n

The division recommended fining the owners $5,000 if they failed to submit the technical studies on time. If they missed the deadlines to submit their permit application, to clear vegetation, or to execute a contract to do the permitted construction work, the division recommended fining the owners $20,000 for each missed deadline.<\/p>\n\n\n\n

If they failed to pay any of the fines associated with missed deadlines, the division also recommended that the board pre-approve fines of $5,000 a day until those fines are paid.<\/p>\n\n\n\n

Finally, the division recommended authorizing the board\u2019s chair to further restrict the water level in the reservoir to five feet or some \u201cother level deemed necessary.\u201d<\/p>\n\n\n\n

At the meeting, Chang told the board that regardless of whether the reservoir is owned by a single owner or jointly owned, the owners have a duty to make the dam safe. He said his staff had identified 13 outstanding safety issues with the Waiakalua Reservoir.<\/p>\n\n\n\n

\u201cBecause of the lack of progress, this is a fair solution,\u201d he said of the pre-approved fines.<\/p>\n\n\n\n

Board member Vernon Char seemed baffled by the fact that so many owners were responsible for the reservoir.<\/p>\n\n\n\n

Gina Belleau of the division\u2019s dam safety section read the department\u2019s administrative rules, which state that an owner includes \u201cany person who has a right, title, or interest in or to the dam or reservoir or to the property upon which the dam or appurtenant work is located or proposed to be located.\u201d<\/p>\n\n\n\n

That means that the CPR owners\u2019 shared interest in the TMK parcels that have some part of the reservoir on them qualifies them as owners, even if their individual lots don\u2019t contain any reservoir features. <\/p>\n\n\n\n

Board chair Case noted that the state Department of the Attorney general reviewed the case and agreed that the nine identified owners were liable for the reservoir\u2019s management. <\/p>\n\n\n\n

\u201cIf this fine went into place because they missed these deadlines and someone were to challenge their liability for it, we would certainly deal with it at that point,\u201d she said.<\/p>\n\n\n\n

Darrell Holowaychuk of Alberta, Canada, who has been an owner since 2010, has been working with the Engineering Division over the years to help bring the reservoir into compliance.<\/p>\n\n\n\n

Although he did not formally request a contested case hearing, he did object to the Engineering Division\u2019s proposal of pre-approved fines, calling them \u201cconfrontational and threatening.\u201d He also said the proposed extended deadlines were arbitrary and possibly too short.<\/p>\n\n\n\n

In oral and written testimony, he argued that the state was somewhat responsible for the predicament of having so many owners involved.<\/p>\n\n\n\n

\u201cIn the time I\u2019ve been there, there have been seven ownership changes,\u201d he said, noting in written testimony that during that time, \u201cat least three of the owners refused to return calls or emails to the other owners regarding the dam.\u201d <\/p>\n\n\n\n

\u201cYes, it\u2019s a \u2018buyer beware\u2019 and they should know, but they aren\u2019t informed properly prior to the sales,\u201d he told the board.<\/p>\n\n\n\n

“The state decided to CPR those lands. The state decided to have nine owners of a very critical piece of infrastructure,\u201d he said. And because of that, he continued, \u201cwe need to look at it as a partnership.\u201d<\/p>\n\n\n\n

Because the dam had been found to have the potential of killing people, Holowaychuk said, \u201cthe state should be sending notification to people below the dam [and] make sure there are no homes or illegal encampments. \u2026 If safety is the number one issue, that has to happen. I can\u2019t do it.\u201d<\/p>\n\n\n\n

\"\"<\/a>
Credit: DLNR Engineering Division<\/sub><\/figcaption><\/figure>\n\n\n\n

He also said that prospective dam owners should be made aware of their legal responsibilities during the purchase of the land, noting that he only became aware of the DLNR\u2019s dam and reservoir rules last year, while conducting research to respond to the Engineering Division\u2019s September deficiency notice.<\/p>\n\n\n\n

\u201cWhen I went to research these Administrative Rules, I found that they were adopted November 22, 2010. I bring this up as I am wondering why this informational document was not brought to the attention of the owners or referenced until eleven years later in 2021? It would benefit all DAM owners not just the owners of Waiakalua Reservoir if they were made aware of this document and given a link to the document as it would greatly help them understand their responsibilities as DAM owners,\u201d he stated in written testimony.<\/p>\n\n\n\n

While he opposed the current proposed fines, he did admit that the Engineering Division\u2019s failure to follow up on its threat of fines over the years \u201cbred complacency with owners.\u201d<\/p>\n\n\n\n

\u201cIt\u2019s a learning curve. I feel we need to work together and not be confrontational. \u2026 It\u2019s a wrong time to be punishing people to resolve a complex issue,\u201d he said.<\/p>\n\n\n\n

He reported that the current owners have come together and are working towards remediating the dam. They hired a consulting engineer, Karl Bromwell, submitted a vegetation removal plan and hired a contractor to do that work, and have designated two local owners to do the required seepage reporting.<\/p>\n\n\n\n

\u201cWe collectively as a group have been funding the necessary engineering work that is underway to the tune of almost $100,000 that is on top of the engineering work that was done previously. \u2026<\/p>\n\n\n\n

“[W]e are more organized as an ownership group than we have ever been in the twelve years that I have been an owner,\u201d Holowaychuk wrote.<\/p>\n\n\n\n

Board member Char disagreed with Holowaychuk\u2019s suggestion that the state had some culpability in reservoir maintenance because it allowed the lands under the reservoir to be developed into CPRs. <\/p>\n\n\n\n

According to the state Department of Commerce and Consumer Affairs, a landowner creates a CPR when the declaration, association bylaws, a map, and a master deed or lease submitted to the state Bureau of Conveyances or the Office of the Assistant Registrar of the Land Court is recorded.<\/p>\n\n\n\n

\u201cIf the condominium was set up, it was set up by the developer. It was his responsibly to understand what the relationship to the dam was and in turn,\u201d turn that responsibility over to future owners, Char said.<\/p>\n\n\n\n

Holowaychuk said that was a legal issue that he would leave to others to decide. \u201cI don\u2019t want to go there. \u2026 Let\u2019s work together,\u201d he said.<\/p>\n\n\n\n

The newest owner, Theresa Drake, testified that she can\u2019t even can\u2019t see the reservoir from her lot and didn\u2019t know anything about it when she bought it in 2018. <\/p>\n\n\n\n

\u201cI would like to cooperate, of course. I\u2019m not wealthy. I feel like this could be a money pit for me,\u201d she said. Drake is one of the owners who have been regularly reporting on seepage to the Engineering Division since January.<\/p>\n\n\n\n

\u201cAs a newbie, I\u2019m freaked out about the threats of more fines and more fines and more fines. \u2026I don\u2019t know how I\u2019ll be able to manage it in the future. I\u2019m doing what I can now,\u201d she said.<\/p>\n\n\n\n

She said that the reservoir level is currently at seven feet. \u201cI would be happy to keep it at that level. \u2026 It\u2019s still pretty,\u201d she said.<\/p>\n\n\n\n

Who\u2019s Responsible?<\/em><\/strong><\/p>\n\n\n\n

In response to some of the issues Holowaychuk raised, Chang noted that maps of the inundation zones beneath each of the state\u2019s reservoirs are available online at the Engineering Division\u2019s website.<\/p>\n\n\n\n

He also said that should a dam failure become likely, the county\u2019s emergency management agency would be involved in notifying the public.<\/p>\n\n\n\n

The division\u2019s Edwin Matsuda added that dams are required to have emergency action plans and that the division worked with some of the Waiakalua owners on updating theirs a few years ago. He added that the DLNR paid to install water level gages in the reservoir that it monitors, as well.<\/p>\n\n\n\n

He stressed the need to have the trees removed. Some dams can withstand overtopping, which causes erosion, but if there are a lot of trees, they create irregularities in flow, he said. <\/p>\n\n\n\n

\u201cYou start to get more channelized erosion quicker,\u201d he said.<\/p>\n\n\n\n

If it overtops and erodes, the concern is that an earthen dam will then have a catastrophic failure and all of the water will rush out, Case added.<\/p>\n\n\n\n

Matsuda said the division has identified 21 parcels in the inundation area of a simulated dam breach at Waiakalua.<\/p>\n\n\n\n

When Holowaychuk noted that the state does not notify people that they are in the inundation zone, Case replied, \u201cThere is an implication in your question that it\u2019s the state\u2019s responsibility to ensure safety. It is the dam owners\u2019 responsibility to ensure safety.\u201d<\/p>\n\n\n\n

In the end, the board unanimously approved the Engineering Division\u2019s recommendations, with the added language that the reservoir owners are jointly and severally liable for all fines.<\/p>\n\n\n\n

\u2014 Teresa Dawson<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

The owners of lands beneath and surrounding the Waiakalua Reservoir in North Kaua`i are facing $65,000 in fines if they don’t steadily progress toward making the sugarcane plantation-era fixture safer. The reservoir is relatively small compared to the Kaloko Reservoir, … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14375,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[338,496],"tags":[3],"class_list":["post-14391","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-land-use","category-may-2022","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14391","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14391"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14391\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14375"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14391"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14391"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14391"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}