Neglect led to Ka Loko break

Several key legislators promise to use the conclusions of a special report to reform state laws on dam safety

The March 14 breach of Kauai's Ka Loko Dam "was obviously a huge human tragedy and ecological disaster," special Deputy Attorney General Robert Godbey said yesterday after delivering his investigative report to the Legislature.

"It would be an even greater tragedy if we don't learn from it," he said.

FAILURES ON NUMEROUS LEVELS Special Deputy Attorney General Robert Carson Godbey's independent investigation into the deadly Ka Loko Dam failure in March emphasizes that it is "does not draw conclusions as to legal blame, civil liability or criminal guilt." However, it comes to the following conclusions: » Dam owner James Pflueger "appears" to have filled in the emergency spillway, "an essential safety element of every earthen dam." He also failed to maintain the dam. » The State of Hawaii did not inspect the dam as is required by law. » Kauai County officials missed an opportunity to stop unlawful work at the dam in 1997. » Kilauea Irrigation Co. failed to maintain the dam and control the waters from Ka Loko ditch. The full report can be read at www.kalokodam.net/report/Report.pdf CHANGES URGED TO IMPROVE SAFETY Special Deputy Attorney General Robert Godbey's investigation of the March 14 Ka Loko Dam breach recommends that the state: » Better fund the state's dam safety program. » Have more trained engineers working in the dam safety program. » Change dam hazard classifications, so that any dam for which a breach would cause probable loss of human life would be classified as high hazard. » Increase inspections of high-hazard dams to at least every two years, up from every five years. » Increase penalties for violation of dam safety rules to up to $10,000 per day for first-time violations (up from $500) and up to $50,000 per day for repeat violations. » Create a dam safety fund, using fees from dam owners and fines collected for violations. » Loan qualified dam owners money from the dam safety fund to make dam improvements. » Consider tightening guidelines that currently exempt dam owners from liability for damages in some instances. » Ensure that all state and county inspectors and dam owners receive basic dam safety training. » Take into account the age and condition of Hawaii's earthen dams and the need for maintenance if they are to continue to be used. » Take into account Hawaii's location in an earthquake zone and the probabilities of extraordinarily rainy weather. » Require dam owners to comply with upgraded dam safety rules. » Authorize the state to take action during emergencies to protect the public's safety, including entering private land to do so.

Several key lawmakers who received Godbey's two-volume report yesterday agreed and pledged to use his work to change state laws on dam safety.

Rep. Mina Morita, a Kauai Democrat whose district includes the disaster site, said she will use Godbey's work to introduce legislation.

"I think it's really important," Morita said. "The report was really clear in pointing out shortcomings of the (current) statute," which was written in 1987.

So did Sen. Russell Kokubun (D, Kalapana-Volcano) and chairman of the Senate Water, Land and Agriculture Committee, and House Speaker Calvin Say (D, Palolo).

Kokubun said he expects to hold an informational briefing about the report by the end of the month, where lawmakers can ask questions about it.

"I think he did a very good job, a commendable job in laying out the history" of the Ka Loko incident, Morita said.

"He was walking a fine line because of the numerous civil lawsuits that are out there right now, in presenting the facts as he saw them," Morita said.

Morita also complimented Godbey for giving some context on Hawaii's aging agricultural water systems. The sugar industry used to fund upkeep of complicated upcountry water systems, but with that industry almost gone, the systems are falling into disrepair and neglect, she said.

With sugar's "huge economic engine" no longer paying for many of Hawaii's rural water systems, "I really do think we (in Hawaii) have reason to be concerned," Godbey said. Another factor to consider is how earthen dams are susceptible to earthquakes, he said.

An estimated 1.6 million tons of water rushing from the Ka Loko Reservoir before dawn on March 14 killed seven people, destroyed two homes, damaged a state highway, and left debris and wrecked lands behind.

Godbey was chosen by state Attorney General Mark Bennett from a field of five attorneys picked by state lawmakers. Some had not wanted Bennett in charge of the investigation because he was formerly a law partner with an attorney representing James Pflueger, owner of Ka Loko Dam.

"The Legislature wanted someone who would do a thorough and diligent and thoroughly independent job," Bennett said yesterday, adding that Godbey's work was "completely independent; I had no input into the contents at all."

Bennett said yesterday that his separate criminal investigation of the Ka Loko Dam incident is ongoing.

There are also at least three lawsuits pending among various parties connected with the Ka Loko Dam failure.

Godbey's report emphasized that "the report does not draw conclusions as to legal blame, civil liability or criminal guilt." It spreads blame (or what the report calls "possible culpability") for the tragedy among the state Department of Land and Natural Resources; Kauai County; Ka Loko Dam property owner Jimmy Pflueger; and Kilauea Irrigation Co., Inc., the operator of the water system connected with the Ka Loko Reservoir.