Battle over water at Ka Loko

LIHUE — For months now, James Pflueger has been requesting that the Department of Land and Natural Resources stop state water from entering his property at the Ka Loko Reservoir in Kilauea — the site of a dam breach in 2006 that killed seven people.

On Nov. 19, Pflueger wrote what he called his “last letter” to DLNR Chairman William Aila.

“I have sent you pictures with the problems of the Ka Loko ditch and irrigation system and it’s all been for not,” he wrote. “I have asked you repeatedly to remove your water because I do not want to be responsible for the condition of the system.”

Several sources told The Garden Island that the DLNR is considering — and came close to — shutting down the 3-mile-long Ka Loko Ditch, the reservoir’s primary source of water.

If the ditch is decommissioned, Kilauea Irrigation Co. owner Tom Hitch said the reservoir would dry up, leaving dozens of residents and farmers downhill without water. KICO owns an 18-inch pipeline that takes water from the reservoir and delivers it to farmers in Kilauea Farms Agricultural Subdivision.

“The first people to be adversely affected will be the numerous customers that use KICO’s pipeline, many of whom are organic farmers,” Hitch wrote in a letter to Aila and Gov. Neil Abercrombie. “These farmers depend on Ka Loko’s water for their livelihood.”

Pflueger, the landowner who pleaded no contest in July to one count of felony reckless endangerment for the disaster, and his attorney William McCorriston, claim the ditch has not been properly maintained for years and continues to present a safety hazard. While Pflueger does not have any rights to the water in his reservoir, McCorriston said he is liable for it.

“We know where the fingers are going to be pointing if there is another problem up there,” McCorriston said.

On Nov. 7, Pflueger took his concerns all the way to Hawaii Attorney General David Louie.

“I don’t want to go through this again!” he wrote. “I have asked Mr. Aila repeatedly to remove all state water off my land, but the request has also fallen on deaf ears … (It) reminds me of the state not accepting my warning, yet when the dam fails — the state makes me responsible.”

In addition to Pflueger, the reservoir is jointly owned by Mary Lucas Trust, which recently “approached DLNR stating that they would like water to be stored in the reservoir,” according to DLNR Chief Engineer Carty Chang.

In an email Monday, DLNR spokeswoman Deborah Ward said the department was considering its options relative to Pflueger’s request, “as it has been indicated that the State of Hawaii DLNR may be sued by allowing water to flow into the reservoir.”

On Thursday, however, Chang said the Lucas Estate had requested the DLNR delay any action in order to “allow them time to discuss the issue with Mr. Pflueger to see if they can reach an agreement and speak as a single voice.”

“DLNR does not intend to take any action at this time, as this is a private issue that needs to be resolved between the Mary Lucas Trust, Mr. James Pflueger, and the farmers who are served by this privately owned reservoir,” he wrote.

One of many farmers who relies on water from the Ka Loko system is Gae Rusk, who owns and operates an orchard on Waiakalua Street. She says Pflueger, “the same neighbor who caused” the 2006 disaster, now wants to permanently cut off her and other farmers’ lifeline and “sabotage his neighbors’ lives and livelihoods.”

“The scary part? There is the possibility that the DLNR will cave before the force of his willful, self-serving personality and the maneuvering of his legal team,” Rusk said.

When asked if there are any alternative sources of water for her and her farm, Rusk said there are none that are affordable.

Hitch said the DLNR was initially planning to decommission the ditch before Christmas, until the department was flooded with phone calls and emails from angry neighbors and waterfront property owners.

Ward disagreed.

“As of this moment, the Ka Loko ditch will remain in its present condition with the gates intact,” she wrote.

McCorriston has a different understanding of the future of Ka Loko Ditch.

“(The DLNR) informed us they were shutting it off,” he said Thursday. “They know it’s in disrepair.”

Pflueger claims that the four control gates along the ditch are “inoperable,” and said he predicted a failure — and even warned the state — five years before the deadly 2006 incident.

“If they took my advice, seven people would have been saved,” he said by phone Tuesday.

Both Pflueger and his attorney say KICO is responsible for maintaining the ditch, but that the company has failed.

“Mr. Hitch, during the 40 days of rain preceding the dam break at Ka Loko, did nothing … and continues his practice to ignore his duty to repair and maintain the system,” McCorriston wrote in a letter to The Garden Island.

Hitch said the ditch and gates, although slightly overgrown, are not in disrepair.

“They all work fine,” he said of the gates. “If the ditch wasn’t working we wouldn’t have water in the reservoir.”

As for KICO’s responsibility, Hitch said his permit to do maintenance was revoked years ago. Regardless, KICO continues to “spend thousands of dollars every year on ditch maintenance,” he said.

In a Dec. 19 letter to Aila, Kauai County Council Chair Jay Furfaro expressed his “grave concerns” about the potential closure.

“There is an urgency to maintain the water system for Kauai’s farmers despite any possible closure of Ka Loko Ditch or Reservoir,” he wrote. “If this closure in fact occurs, has DLNR explored other diversion options so that Kilauea Irrigation Co., Inc. can continue to provide water to its customers?”

Ward said the department has not.

“Although KICO has lost its revocable permit to operate the state-owned portion of Ka Loko ditch, the state does not presently intend to ‘shut down the ditch’ and may consider other options before doing so.”

Hitch argues that what Pflueger is really demanding is that the state turn off not his own water, but water belonging to KICO and the Lucas Estate. If the state agrees it will be rewarding Pflueger and punishing the innocent and legal users, recipients and beneficiaries of Ka Loko’s water, he said.

“At the same time the state will then be proving that the state had the power, responsibility and therefore liability all along for the water and ergo the breach, playing right into Mr. Pflueger’s hands and giving him just the proof he has always wanted!” Hitch wrote to Abercrombie and Aila. “At which point I expect Mr. Pflueger will drop his current plea agreement, demand a better one/full dismissal or go to trial …”

Pflueger is scheduled to be sentenced Jan. 23.

In his letter to The Garden Island, McCorriston wrote that his client “remains open to a reasonable solution” which guarantees safe transmission and storage of the water.

His preferred solutions include the system being taken over by its customers, the state, the county, Lucas Estate or a responsible third party.

“So far, no takers!” he wrote.

In March, Pflueger demanded that the state pay him for storing their water on his property for the last 20 years. Included with his letter was an invoice for $240,000 ($1,000 per month for 20 years).

“I have received nothing but am accused of everything,” he wrote at the time. “You owe me more than I owe you, so send me the balance within 10 days of this letter.”

• Chris D’Angelo, environmental reporter, can be reached at 245-0441 or cdangelo@thegardenisland.com.