Remove Moloaa Stream Diversion

SUBHEAD: A request to remove the Moloaa/Kaluaa stream diversion in Moloaa Forest Reserve on Kauai.  

[Editor's note: Below is the content of a recent letter to the BLNR concerning the inclusion of the diversion of Moloaa Stream as a topic for Kauai 2011 Listening Session.]  

By Hope Kallai on 16 August 2011 in email to BLNR -
 
Image above: Moloaa Stream (left) as it reaches the ocean at Moloaa Bay. Photo by Juan Wilson in 2005.

DLNR Chairperson William J. Aila, Jr.
 Kalanimoku Building 1151 Punchbowl Street
Honolulu, HI 96813

William.J.Aila@hawaii.gov
DLNR@hawaii.gov 
DLNR2011ListeningSessions@hawaii.gov

Aloha e Chairperson Aila:

Mahalo for taking the time to come to Kauai again and especially taking the time to listen to us. I have written ridiculous amount of correspondence to DLNR without response.

Mahalo for changing this pattern. Moloa`a Stream was a perennial stream; it always had flowing water - enough to support several hundred people. About a decade ago, the flow in Moloa`a Stream changed. The stream would not rise during heavy precipitation events; sometimes it rose when it was not raining mauka. There were unexplained dirty water events both brown water and grey water. There were no flushing flows to clear out the sand berm at Moloa`a Stream mouth. Moloa`a Stream began being seriously diverted about 2001, continuing today. The kumuwai of Moloa`a is in the Moloa`a State Forest Reserve, mauka of Ka Loko Reservoir.

The Moloa`a system is fed by perennial tributaries of Kalua`a Stream, including Kanalohewahewa, stemming from a perennial bog. The ahupua`a of Moloa`a has no community water system, either potable or irrigation. Recently, our family’s water well went dry. After 10 years of an un-permitted stream diversion removing our groundwater aquifer, we had to dig 150’ deeper (at $55/ft) to find water to be able to live and farm on our 5 acres.

Two different individuals complained to CWRM before our ahupua`a-based community group did in 2001(Godbey Exhibits: DLNR 1285 to DLNR 1296, EPA 001-033), about the diversion of upper Moloa`a Stream. A formal Stream Resolution Complaint No. 01-12 was filed Oct 3, 2001 by Daniel Garner, complete with maps and photos but Mr. Pflueger’s attorney responded that water does not run upgrade and that the diversion would originate mauka in the State Forest Reserve (DLNR 1297-1303).

 An offer was made to escort state representatives to the alleged “landlocked” State Forest Reserve. As Mr. Garner told CWRM in 2001, “growing taro with no water is difficult, if not impossible” and he abandoned his lo`i kalo on Moloa`a. When is CWRM going to act on the 3 Moloa`a Stream diversion complaints? The newly released Kaloko Phase II Dam Report documents exactly where in the forest the ditch originates, by GPS measurement.

The 2009 Kilauea Irrigation Company Report (Draft April 2009, Final October 2009) maps and documents when the diversion was constructed (about 2001). It further documents how this un-permitted, un-engineered, illegal 7’ ditch terminates into an 8” underground irrigation system on Mary Lucas Trust lands, goes through a 90 degree angle, then is reduced from 8” to 6”. The KICO report maps how the ditch has overflown into Kaloko Reservoir, causing “Overflow Erosion Channels”.

The construction of a new, additional inflow into Kaloko is an alteration of appurtenant dam works. This is illegal and needs to be removed immediately. Moloa`a needs it’s water. KICO has been dumping excess diverted (stolen) water into the ocean in the area of 4170 North Waiakalua for years, all to the detriment of the Moloa`a ahupua`a. When are the alterations to the Kaloko system going to be removed? We have filed a Stream Resolution Complaint - the 3rd on Moloa`a . We have asked for Flow Standards to be established for Kalua`a and Moloa`a Streams.

We filed a Complaint Dispute Resolution Response request on 14 March 2011. We have gotten no resolution yet to our steam diversion complaints. We have gotten no responses. What are we doing wrong? How can CWRM keep permitting groundwater well withdrawals without understanding the water budget of Moloa`a? We cannot wait another decade for our stream flow to be restored. What can we do to remove this illegal diversion from taking and selling stolen Public Trust water from the State Forest Reserve (designated for watershed protection)?

The KICO inflow/infiltration study documents how the turn of one valve returns the stolen water into the Moloa`a ahupua`a, but the entire ½ mile ditch and new headwaters impoundment, in trespass in the forest, must be removed. Moloa`a Stream and Kalua`a bog, (one of the last low elevation bogs in Hawaii) need to be restored. The BLNR voted to revoke Revocable Water Use Permit S-6240 to Kilauea Irrigation System in September, 2007 but left the termination date to be decided by DLNR staff. I previously requested the termination of Revocable Permit S-6240 (2009 June 3 Termination of Revocable Permit S 6240), but have not received an answer yet. Can you please tell me the status of this permit? Does KICO have insurance?

According to the Phase II report, KICO is failing to maintain the Kaloko Ditch from Pu`ukaele Stream. Are they relieved of this maintenance kuleana? Has the hazard rating of Kaloko been determined? Is there an Emergency Action Plan yet? We have written many letters about the diversion of the upper Moloa`a Stream system, but have gotten no responses. We warned people about these un-permitted diversions mauka of Kaloko before the Kaloko dam breach.

Dam Safety inspectors were not sent out in response to a flood that destroyed a bridge (2009 Jan 26 State Ended Safety Inspections Before Hawaii Dam Collapsed). 1 week before 8 people died, the EPA and DOH were sent to Kaloko (EPA 000064-000105). DOH Environmental Health Specialists and the Enforcement Section Supervisor didn’t notice the lack of a spillway -they checked silt fences.

 Nobody checked the stream diversions mauka of Kaloko (-the ditch goes underground on Mary Lucas Trust land) which had been reported to the state for 5 years by then. They were more interested in “closing the loop” (EPA 000045, EPA 000050) and checking Pila`a Consent Decree mitigation remediation actions. We’ve been told:

“You cannot go up there - it’s private land.” “You’re crazy - Moloa`a and Kaloko are not connected,” “Don’t worry, If Kaloko blows, it’ll take out Kilauea side, not Moloa`a.: “It’s Pflueger’s land, he won’t let the state go there.” ‘Moloa`a Ditch never went into Kaloko - only into Kaloko ditch above the flume.” “Moloa`a Ditch went pau in the 1960’s. Only carried water during high rain storms. Kilauea Sugar quit maintaining it before plantation went pau.” “Moloa`a ditch doesn‘t exist anymore. It is functionally obsolete.” “We have no record of this ditch. We cannot talk about it.} “We are not interested in pursuing another Clean Water Act violation against Jimmy Pflueger.” “We have to get Jimmy Pflueger’s permission to inspect the breached dam..” “Kaloko never had a spillway.” “The dam is not a dam anymore. Too small. No more state jurisdiction.”” “Water does not flow upstream.” “I’ll perform my own Phase II investigation, but the it will be private.” “We’re looking into it.” “We cannot discuss this - it’s under litigation.”

On December 22, 2006, Attorney General Wynoff wrote Jimmy Pflueger about Kaloko: Third, we are informed of a second source of water to the reservoir, of unknown origin. Please provide all available information as to this source, including date of installation, plans and specifications for its construction, origin of the water, any documentation as to authorization for use or diversion of the water, and your plans (if any) to cease and desist receiving water from this second source. There’s plenty information about this un-permitted ditch now. There is no authorization for the use of this water. Why does Jimmy Pflueger get to decide when (if ever) he plans to cease and desist receiving and selling stolen water?

When is the State going to remove this illegal, un-permitted, un-engineered ditch system and restore the flow of Moloa`a/Kalua`a Streams back into the Moloa`a ahupua`a? Our downstream neighbor had to water the o`opu in what used to be Moloa`a Stream with a garden hose from his well to keep them alive. The o`opu need their water. We need our water back now. We cannot wait for water pending litigation against Jimmy Pflueger. Nobody downstream is safe until these un-engineered ditches are removed. Ua hewa i ka wai. Nobody has been listening.

I realize this has gone on for a decade under the previous administrations, before being presented to you, but I hope you can realize how the piracy of public trust resources cannot be allowed to continue. Mahalo for taking quick action and putting an end to this decade of deception and denial. We all live downstream.

Hope Kallai
Malama Moloa`a
POB 655 Kilauea, HI 97654

See also:
Ea O Ka Aina: Moloaa Diversion Forensics 5/22/09

 .

Keep Kaakaaniu Beach Access

SUBHEAD: Ka`aka`aniu Beach is the name. Larsen was a manager who ran Klauea Plantation. Enough already of privatizing beaches.

By Andy Parx on 26 October 2009 in Parx News Daily - 
http://parxnewsdaily.blogspot.com/2009/10/road-more-traveled.html


 
Image above: A view down onto Kaakaaniu Beach (known by haoles as "Larsens Beach") from access path. From http://www.hawaiilifeofluxury.com/larsens-beach-kauai  

The pilikila (Editor's note: translates to "related to deed"?) over the Larson’s Beach access has finally gotten some attention after a fine article in the Hawai`i Independent by Joan Conrow detailed how once again the public is about to lose a path that has been historically ours forever because of some slight of hand by a big landowner. She writes: 

 An outcry over plans to fence off a trail to Larsen’s Beach is causing Kauai residents to revisit two longstanding issues: Should concerns about liability restrict access; and is the county properly recording public easements? The controversy arose over cattle rancher Bruce Laymon’s plans to install a fence on northeast Kauai coastal land that he leases from the Waioli Corp., a kama`aina landowner whose holdings include the historic Waioli Mission House and Grove Farm Homestead Museum.  

But the rest of the article deals for the most part, not with Laymon but with Waioli Corp and the history of the access. Although going forward it’s Waioli’s actions that will determine the future of the access it’s Laymon’s past actions- with the ok of Waioli- that has brought the issue to a head.

Local rancher Bruce Laymon would have people believe, as his attorney told the Board of Land and Natural Resources (BLNR), that he “is a rancher and landscaper... an avid fisherman who loves Kauai and the community... and is not a sophisticated developer as the Sierra Club would like to have the Board believe” That, in part was what influenced the BLNR to approve staff recommendations to reduce his fine for illegally clearing the bluff above Larsen beach, a secluded clothing optional North Shore beach where travel-book-reading sunbathers from around the world come to vacation, from $15,000 to $2,000 according to the minutes of it’s July meeting.

Laymon claims that it was an innocent and understandable mistake when he relied on an approved “conservation plan” for his ranch, to do work along the ancient historic Alaloa trail above Ka`aka`aniu (rolling coconut) beach and reef- also knows as Larsen’s Beach after a Kilauea sugar plantation luna- which is famous for its limu kohu according to the BLNR staff report which PNN has obtained but is apparently not posted on line.

The work not only went well beyond what was permitted by the East Kaua`i Soil and Water Conservation District (EKWCD) Board when they approved his Brush Management Plan that had been developed with the help of the Natural Resources Conservation Service (NRCS) but encroached on the state conservation district and county special management area where permits are required to do any work.

 Rather than just carefully hand- remove all the non-native plants and leave the foliage in place to hold together the hillside- as the “approved plan” for the other areas required- Laymon apparently came in and cleared the entire area of “brush” denuding the hillside including cutting large trees down to stumps in order to harass the homeless in the area. According to the report Laymon apparently tried to dispose of the campers’ property calling it “household trash”, engaging in a confrontation with some when they tried to retrieve their belongings.

Though Laymon claimed ignorance and said he was “doing something good for the community”- a position with which members of the BLNR agreed- this isn’t his first run-in with the law for land-clearing operations without necessary permitting- nor is it the first time he’s had confrontational run-ins with nude sunbathers or so-called “illegal campers” on property he leased.

In 2003 Laymon did apparently illegal grubbing and grading on a three acre parcel above Kealia for which he didn’t have an NRCS approved plan. But the EKWCD Board said he made an “honest mistake” in including the three acre parcel in a plan for a different 2011 acre parcel in Kealia according to a lengthy article on the subject in the local newspaper.

This occurred during the infamous Kaua`i County Council “Developers Gone Wild” grubbing and grading hearings, spurred by the 2001 Pila`a mudslide disaster for which developer Jimmy Pflueger received the then-biggest-ever fine for a federal Clean Water Act violation.

 Despite the fact that Council Chair Kaipo Asing called actions “another Pila`a waiting to happen” Laymon’s buddies on the EKWCD Board, a group comprised of large landowners in the area who obtain votes based on the acreage they own, cleared him of all charges saying Laymon was just an unsophisticated rancher and landscaper who actually made the area look “beautiful” despite the fact that if a heavy rainfall had occurred while the land was denuded it could have despoiled the reef at Kealia.

 Laymon was also involved in the similarly infamous harassment of nude sunbathers in 1990 when he apparently organized an armed vigilante squad that roamed Kaupea Beach- aka Secret Beach- on ATVs at the behest and in the employ of landowners above the beach until the state told him to stop because the beach was state property. Among those owners were Michelle and Justin Hughes who leased Laymon the Kealia Property that they had obtained from developer Tom McCloskey who bought the entire Kealia ahupua`a after area sugar cane went defunct.

But it seems the BLNR staff either never heard about these incidents or chose not to tell the board about them and rather convinced the board that Laymon was just an unsophisticated rancher and landscaper who made an understandable mistake in clearing the area above Larsen.

The minutes of the BLNR meeting are revealing for what they don’t contain as much as what they do. Although Kaua`i member of the Board Ron Agor told many people that he would push for the full fine the minutes reveal that he actually led the other board members to accept the staff report and reduce the fine. Laymon is currently applying for an “after the fact” permit from the BLNR for not just the denuding of the hillside but to do the real work he intended to do before complaints stopped him in October of 2008- changing not just the historic Alaloa trail but the traditional easier access to the beach and substituting one more treacherous.

As to the future, the Sierra Club has been on the case and, in a letter, refutes testimony by Laymon’s attorney Lorna Nishimitsu who at one point actually tried to claim to the BLNR staff that the Alaloa trail was actually Ko`olau Road. The Sierra Club letter to the board details the issues and misrepresentation in the after the fact permit application and is apparently not available on line so is reproduced in full here.  

As you know, Paradise Ranch has submitted a CDUA for land leased from Waioli Corporation. This application calls for brush management for ranching and the construction of two sections of fence – one portion designated as pre-existing (near the northern boundary), and additional fencing that is not pre-existing, approximately twice the length of the first portion. We agree that cattle should be kept off the beach. However, the siting of this additional fencing raises a number of concerns. 

Safe Beach Access 
We appreciate that Waioli Corporation provided a public access easement to Larsen’s Beach years ago, but that route is steep and difficult for both children and elderly to use. The CDUA survey map Exhibit E, indicates that the proposed fence will block the favored public access along the gradual slope labeled “Existing Road” and “Existing Trail”. 

Emergency responders who routinely rescue visitors from the two rip currents at Larsen’s Beach also favor this route. Therefore, we ask you to keep the existing trail behind the beach unblocked.  

Historic Alaloa 
Exhibit D in the CDUA notes the State of Hawaii’s claims of ownership of the historic coastal trail – the Hawaiian Alaloa. The Alaloa is not Ko`olau Road as put forth by attorney Lorna Nishimitsu in a letter dated August 5, 2009 (Exhibit C). The evidence of the trail’s location is provided in the document called Ref: K98:1 Moloa`a (from September 1, 1998) which was not included in the CDUA exhibits, but is cited at the top of the Na Ala Hele Memo dated March 1, 2000 (Exhibit D). 

Therefore, attached to this letter is documentation from the 1998 Abstract Ref: K98:1 Moloa`a which includes an historic map labeled: Na Ala Hele Exhibit B – “Portion Registered Map 1395 dated 1878 depicting portion of Old Alaloa”. It is clear from this map that the Alaloa is a coastal trail and not the Kauai Belt Road, Kuhio Highway or Ko`olau Road. Furthermore, there is ample oral testimony collected by Na Ala Hele Kauai Advisory Council members in the late 1990’s that the path traversed close to the coastline and over the Pali. Kupuna in the area can corroborate this. 

The “pre-existing” fence does not interfere with the Alaloa. However, the proposed alignment for the new, additional fencing is makai of the existing trail ( see CDUA Survey Map-Exhibit E). The fence would block the “Existing Trail” at two points, cutting off existing public access to Larsen’s Beach via the Alaloa. 

We encourage Waioli Corporation to seek confirmation from the Na Ala Hele staff abstractor as soon as possible on this matter and to encourage DLNR to conduct a metes and bounds survey of the Alaloa in order to properly site the fence, and submit a corrected survey map for the Conservation District Use Application.

 Endangered Species 
The project area is adjacent to the sensitive coastal habitat of monk seals, green sea turtles, albatross and other endangered seabirds. Has the lessee considered using fencing that is dog proof so that endangered ground nesting birds would be protected? We hope that the U.S. Fish and Wildlife Service will be consulted and afforded the opportunity to comment. 

 Summary 
We ask that you relocate the proposed fencing so that it is mauka of the trail/road. Doing so would: a) Preserve the traditional and customary Alaloa; b) Provide the only safely graded beach access from Larsen’s Beach parking lot; c) Assist lifeguards and emergency responders in their rescue efforts, and d) Allow the public access when Monk Seal volunteers routinely ribbon off sections of this beach. 

 If liability is a concern, Waioli Corporation could dedicate the existing trail/road/Alaloa to the State under the Na Ala Hele Hawaii Trail & Access System, thereby removing the threat of liability. Neighboring Moloa`a Bay Ranch also has a portion of the Alaloa and that easement was adopted into the State Na Ala Hele trail system several years ago. Also, please note that your neighbor Falko Partners, north of Larsen’s Beach, is currently in discussion with the Kauai Public Land Trust about transferring rights to the coastal portion of the Conservation District to the public. 

Thank you for your consideration. Perhaps board members would benefit from a site visit to better understand the significance of this coastal gem and its importance to the community. Sincerely, Judy Dalton on behalf of the Executive Committee Sierra Club - Kauai Group, Hawaii Chapter

Moloaa Diversion Forensics

SUBHEAD: Using GoogleEarth as a basic GIS program one can play geographical detective. By Juan Wilson on 22 May 2009 for Island Breath - (http://islandbreath.blogspot.com/2009/05/moloaa-diversion-forensics.html) I have been using a technical illustration program called Canvas since 1993. It was originally designed for technical illustration. Canvas uses features of desktop publishing and combines bitmap images (i.e. jpgs etc.) and vectors (polygons etc.). I've used the program for architectural drafting, graphic presentation, desktop publishing, illustration and, most recently, map-making (GIS, geo-tiffs, etc.). In the last few weeks I've been combining Canvas use with GoogleEarth to create 3D geographic models. This image above is a detail of a screen shot from GoogleEarth of Kaloko Reservoir area. Click to enlarge. I used these applications to with GIS elements to see where and how water could be diverted from Moloaa Stream to Kaloko Reservoir. LEGEND: • Red lines are property lines • Green medium lines are ahupuaa boundaries • Green thin lines are Moloaa tributary watershed lines • Blue big thing is Kaloko Reservoir • Blue medium line are natural stream courses (Kaluaa lower-left, Wailapa upper-right) • Blue thin line is the unnamed Kaluaa tributary course • Purple lines are existing permitted ditches serving Kaloko Reservoir • Pink lines and areas are diversions from Kaluaa Stream (tributary of Moloaa Stream) • Orange line is diversion catchment system at edge of state land My first use of this technique is to try to resolve the reports of Moloaa Stream Diversion provided by Hope Kallai. Her information included diagrams, and verbal descriptions of how public water has been diverted from state land and onto private property owned and/or controlled by James Pflueger and into the Kaloko Reservoir. This meant taking what GIS data tells us about property boundaries, stream locations, roads, ahupuaa boundaries and the like and bringing it to GoogleEarth for a 3D modelling. Combining GoogleEarth with GIS data allowed me to run some hypothetical possibilities that conformed to the descriptions of how a diversion of water from the Moloaa Stream Ahupuaa and into Pilaa Ahupuaa could be accomplished. Note that Pilaa Ahupuaa includes Wailapa Stream... the one that drowned eight people in a flood in March of 2006. It must be noted that there is little, if any, photographic evidence in the GoogleEarth images to confirm any diversion ditch locations. That can partially be explained by the scale of a narrow ditch, with some tree cover, and low resolution photography, etc. But that does not fully explain why photographic evidence is so lacking. Reports do describe at least three underground tunnels involved in the diversion effort. Certainly, someone with a plan to steal so much water would like it to be as unobtrusive as possible. In any case, with a general idea of what to look for, photographic evidence should determine quickly if this is just a hypothesis. The Kaloko Reservoir is built into a natural puu (geological cone). In Hawaii puus are often natural repositories of fresh water. Puus often line up in strings, like pearls on a necklace. Above Kaloko lies such a string. These upper puus are part of the watershed for the Kaluaa Stream. My modeling suggests that about half the water from Kaluaa Stream may have been diverted by two takes. One on the south west fork of Kaluaa stream at about 875 feet above sea level and another on a tributary (with no known name) to the Kaluaa that is closer to Kaloko at 880 feet above sea level. The course of the hypothetical diversion falls at about a 2% slope continuosly to the border of M. N. Lucas Trust Land (Pflueger is trustee). It then passes out of Moloaa Ahupuaa as it brought into a gate with access to the Kaloko Reservoir or into an overflow ditch which leads back to Moloaa Stream. You can load this 3D data into GoogleEarth. Begin by... 1) Download the file 090522diversion.kmz at out FTP site here. 2) Download file may have to be unzipped (and may have name doc.kml) 3) Open GoogleEarth. 4) Set GoogleEarth 3D terrain "ON" (I used a height exaggeration ratio of 2.5/1). 5) Next import 090522diversion file download into GoogleEarth. 6) GoogleEarth temporary place folder should have "Moloaa Diversion.kmz" 7) Inside you can switch on/off, select, and zoom to diversion elements. If you have any information that would add to or correct this hypothesis, please let us know. see also: Island Breath: Moloaa Stream must be restored 5/15/09