State AG gets dam inspection power

THE state Attorney General is investigating the deadly breach of Ka Loko Dam on Kauai and was given emergency authority to enter private property for inspections of dams and reservoirs statewide.

The moves yesterday were part of a flurry of governmental responses to Tuesday's breach, including the acknowledgment that the state has no records of ever inspecting the dam.

ALSO: » Twelve A&B dams on Kauai rated "high hazard." » Lawmakers urge studies of dam safety statewide. » Radio stations provide key lifeline. » How you can help.

"Our records don't show that we have done an inspection, but it doesn't mean an inspection has not been done," Peter Young, director of the Department of Land and Natural Resources, said at a press conference.

Young said records show the state attempted to contact the owner of Ka Loko Reservoir to conduct an inspection, but they were not able to proceed with it. The reservoir is owned by retired auto dealer James Pflueger.

Attorney General Mark Bennett has hired a dam expert to work with an expert from the University of Hawaii to assess the damage caused by the Ka Loko breach, Gov. Linda Lingle said at another press conference.

"If he determines there's something criminal that went on, that's his responsibility to pursue it," Lingle said.

Bennett said his office has issued a subpoena to all landowners of the Ka Loko Dam concerning any alterations, repairs, maintenance and inspections.
"We are conducting a thorough review of documents and interviewing witnesses," Bennett said in an interview. "Our goal is to make the best possible determination of the best possible evidence of what the cause of the breach was. The people of Kauai are going to want to know what caused it."

The Board of Land and Natural Resources is authorized under state law to enter private property for investigations and inspections of dams and reservoirs. At an emergency meeting conducted by videoconference yesterday, the board extended that authority to the Attorney General and its agents, employees, consultants and investigators for Kauai.

"We have every expectation that they will seek the permission of the property owner, but by this action, we've authorized them to be able to do that," Young said.

But at her press conference earlier in the day, Lingle noted obstacles that the state faces in performing a widespread assessment of all public and private dams in the state.

"We have minimal staff that would be available to inspect dams anywhere in the state, certainly not the kind of staff that could do it on a regular basis," Lingle said.

She has asked for emergency funding for several state departments to help cover the costs of recovery efforts in the past three weeks of rainstorms. She is also asking for emergency funding to hire consultants to help determine the structural integrity of dams and reservoirs, assess risks and recommend long-term plans to ensure dam safety.

Lingle said now is not the time for questions about when, or if, the state inspected the dam.

"We're dealing with the loss of life right now as opposed to what happened and what was inspected in years past," Lingle said. "We're really focused on helping the community to recover right now from this tragedy.

"It's just not a priority right now to know the last time it was inspected. It certainly is important; it will be a priority ... but right now our focus is on protecting the homes that are still in the area."

Lingle noted that the division charged with carrying out inspections has only one full-time and one part-time staff member. Kauai alone has about 60 private and 13 public dams, she said. Statewide, there are about 140 dams.

"It is an issue that the Legislature and I are going to have give more attention to going forward because there are so many of these reservoirs now located on private property," she said.

Yesterday, House lawmakers asked for a review to look into the ownership of all dams, their conditions and the estimated damage that could be caused if the structures fell. State senators introduced a resolution calling for a study of all streams and drainage channels in the state.

Lawmakers also sought a study for an action plan to address the repair and restoration of dams classified as "high hazard" and look into what course of action the state should take if the owner of a dam refuses to make needed repairs.

Lingle said she wants to take a broad approach to any assessment of the state's dams and reservoirs.

"I think it's something we're going to have to work with the counties with, as well as the Army Corps of Engineers," she said. "There is some expertise out there, but we need to do it in a collaborative way and not on a knee-jerk reaction to some incident that happened on a particular day and a particular week.

"It's not just simply a matter of do we keep the reservoirs or not, but how do we keep those that are being used for agricultural purposes but maintain them in a way that minimizes any danger to the public."

At the beginning of the day yesterday, staff from the Department of Land and Natural Resources were monitoring nine other Kauai dams. As the day progressed, they were down to three, Young said, because private landowners took over monitoring the dams on their properties. And waters that feed into others were blocked or diverted, he said.

The three dams or reservoirs the DLNR continues to monitor are Upper Kapahi Reservoir, which is upslope of Kapaa; Wailua Reservoir, mauka of Wailua Homesteads; and Aahoaka Reservoir, above Wailua Fern Grotto. According to the state inventory of dams and reservoirs, all three are on state land.

In addition, the DLNR is preparing a letter to send to all owners of dams and reservoirs reminding them of their responsibility to maintain and inspect their dams and their obligation to have emergency preparedness plans, especially if the dams pose a danger downstream, Young said.

The letter will also ask for updated information about the dams and offer to assist owners in getting permits should they decide to dismantle their dams or reservoirs.

Young said his department has just 1.75 positions to inspect dams. He said he is seeking the assistance of U.S. Geological Survey and the U.S. Department of the Interior's Bureau of Reclamation, which inspects dams in the state along with the Army Corps of Engineers.

The state Land Board is responsible for administering the dam safety program established by the Hawaii Dam Safety Act of 1987. But dam owners or operators are still liable for damage incident to the ownership or operation of dams or reservoirs, according to state law, unless the damage is the result of natural causes such as earthquakes, hurricanes or extraordinary rains that occur once every 250 years.