ASSOCIATED PRESS Gov. Linda Lingle yesterday surveyed damage to Kuhio Highway caused by Tuesday's flash flood.

Illegal work not tied to break

Illegal grading work done by James Pflueger on his land near Ka Loko Reservoir before July 2002 and government-approved fixes of the improper work don't appear to have caused the reservoir dam to break Tuesday, a U.S. Environmental Protection Agency official said yesterday.

"We're not aware of any Clean Water Act or other violations that contributed to or resulted in the failure of the dam," Jeremy Johnstone, an EPA senior environmental engineer, said by telephone from San Francisco.

Johnstone was part of an EPA team that agreed to a landmark $7.8 million settlement of Pflueger's Clean Water Act violations on his north Kauai County land. The bulk of the settlement involved illegal grading and earth-moving Pflueger admitted to doing makai of Kuhio Highway, but also included remediation work Pflueger did on the southeast side of Ka Loko Reservoir -- opposite its dam on the northwestern side.

Another $4.5 million in fines and penalties had already been levied against Pflueger for the mudslide and resulting damage to nearby beaches and reefs.

Pflueger's lawsuit settlement, which included the Kilauea Neighborhood Association, Limu Coalition of Kauai, Kauai County, and state departments of Health and Attorney General, was announced last week.

"My family and I continue to have deep concern over the loss of life and suffering caused by breach of the dam at Ka Loko Reservoir on Kauai yesterday," Pflueger said in a statement he issued yesterday through Frank Cho, senior vice president of Communications Pacific.

Pflueger's statement said that "work that has been reported done on the reservoir -- distinct from the dam -- was done on the opposite side of the reservoir and was undertaken under the requirements of the consent decree approved by county, state and federal agencies. That work was inspected and approved by the EPA, state and others last week."

Johnstone was one of those inspecting the work, which was to fix illegal grading on the southeast side of Ka Loko Reservoir that Pflueger had done as far back as 1997, according to a 2002 EPA document.

The dam, built in 1890, burst Tuesday morning, sending a flood of water down Wailapa Stream, through Morita Reservoir and over Kuhio Highway and sweeping two homes out to sea. Two people are known dead and five missing.

Don Heacock, an aquatic biologist with the state Department of Land and Natural Resources, said yesterday the incident shouldn't be called an act of God or a natural disaster.

"God doesn't make reservoirs. Men make reservoirs," Heacock said. "Men interfered with the natural stream ecosystem."

In past, Heacock said, "When it rained hard, a water luna (supervisor) would make sure the flow of the reservoir" was not blocked.

Heacock said he recalls being at Ka Loko Reservoir in the 1980s and thought its emergency spillway was immediately to the left or right side of the dam.

"According to (Pflueger's) attorney, who spoke with engineers that did work with this dam, it is an earthen dam that sits a few feet lower than the rest of the reservoir," Cho said. "The dam itself is the spillway."

Kilauea resident Tom Hitch said yesterday that he and Pflueger have battled over the water levels in Ka Loko Reservoir. He said Pflueger wanted the levels higher because it looked better.

Hitch said he operates a pipeline that supplies farmers in the area with water from the reservoir. Hitch said he took over operation of the pipeline (formerly operated by former Kilauea Sugar Co. owner C. Brewer) within the past two years.

When Lincoln Gayagas flew over Ka Loko Reservoir on Tuesday to survey the damage, he couldn't spot the dam's spillway.

"Almost every dam will have a spillway," Gayagas, an emergency operations planner for the U.S. Army Corps of Engineers, said yesterday in a telephone interview from Kauai.

Gayagas said he's never heard of an earthen dam being built without an overflow spillway lined with concrete or rocks. A spillway going over the top of the dam would erode the dam itself, he said.

"I didn't see it right there (Tuesday), perhaps because of some of the brush," he said. "We didn't get down and walk on the ground around Ka Loko."

Gayagas said he will look for the spillway when he makes an on-the-ground investigation of the dam today.