The owners of lands beneath and surrounding the Waiakalua Reservoir in North Kaua`i are facing $65,000 in fines if they don’t steadily progress toward making the sugarcane plantation-era fixture safer.
The reservoir is relatively small compared to the Kaloko Reservoir, which failed in 2006 after more than a month of rain. The resulting flood killed seven people.
While Kaloko’s maximum capacity exceeds 450 million gallons, Waiakalua’s is just under 72 million.
Even so, the state Department of Land and Natural Resources’ Engineering Division, which administers the state’s dam and reservoir safety program, has classified the Waiakalua Reservoir as a high hazard dam, because its failure would probably result in the loss of human life.
In April 2009, an inspector with the division found extensive seepage from the 275-acre earthen reservoir, which was likely causing soil erosion.
Built in the 1920s, the reservoir extends across three agriculture-zoned parcels. While the parcel directly beneath the reservoir is owned by the non-profit entity He Makana Ka Wai, the other two — where embankments and other appurtenant features are located — were developed decades ago into condominium property regimes.
As a result, there are currently nine “owners” who are responsible for managing and maintaining the dam safety standards of the reservoir. Most of those owners reside on the mainland.
In a March 11 report to the Board of Land and Natural Resources, the Engineering Division noted that the lack of any organizational structure among the owners to meet their legal responsibilities “has resulted in non-unified attempts … to cover the operations, maintenance, and any necessary improvements to the structure. Therefore, operation, maintenance, and improvements have mostly been localized to the properties of a few owners and have not holistically addressed the structural deficiencies of the dam. This lack of clear responsibility and unified effort poses elevated safety risks beyond that already posed by structural deficiencies, as there is no single operator or point of contact that is reliably able to do maintenance or take emergency actions for the entire structure.”
Despite the division repeatedly sending notices of dam safety deficiency to the reservoir’s owners over the years, starting in 2009, the seepage problem remains.
Deficiency Notices
Following an April 21, 2009, notice of deficiency from the Engineering Division, one of the owners hired the consulting firm Sustainable Resources Group International, Inc., to do a seepage study. The company completed a draft report in September of that year, which was then submitted to the Engineering Division.
The study found that the amount of water seeping through the reservoir embankment varied exponentially depending on the amount of water in it. But according to the Engineering Division’s chief engineer, Carty Chang, the draft report failed to answer critical questions. The cause and even the location of the seepage were still unknown, and the consultant did not evaluate the embankment’s stability, he stated in a September 2014 deficiency notice to the owners.
“Although dams may be able to seep, the seepage must be able to be explained, the seepage needs to be controlled appropriately, [and] the stability of the embankment needs to be evaluated and shown that the embankment is stable under the various loading conditions,” Chang wrote.
That letter stemmed from an inspection a few months earlier, which again found extensive seepage at the downstream toe of the reservoir’s left embankment.
The reservoir’s water level at the time was 14 ¾ feet. (The overall height of the reservoir is 26 feet.) To reduce the risk of a dam breach, the division required the reservoir owners to lower the water level to nine feet, which they did.
Among other things, Chang ordered the owners in a June 2014 deficiency notice, and again in the September notice, to hire a professional engineer to assess the seepage and slope stability of the embankment and provide the division with remediation recommendations.
“Failure to meet the above requirements could result in an order to drain the reservoir, and/or be subject to penalties up to $25,000 a day,” he wrote.
As requested, the owners cleared access to the reservoir’s weir so that it could be measured. They also provided water level reports to the division on a weekly basis.
Despite this progress, a 2015 inspection found that the water level had increased to 11 feet and the owners had still not hired an engineer to do the seepage and stability assessment.
The division issued another notice of deficiency in December 2015.
Six years later, another inspection found the dam to be in “poor overall condition and a threat to public safety,” according to a September 27, 2021, notice of deficiency.
The notice ordered the owners to submit a schedule to complete the technical studies by December 1 of last year and submit them to the division by April 1 of this year.
The owners were also directed to submit a permit application for the remediation, repair, or removal of the reservoir by December 1 of this year.
They were instructed to clear by February 1 of next year vegetation that was impeding proper inspection of the reservoir and was also posing a safety hazard, and to start improvements of the reservoir itself on December 1, 2023.
In January, the owners asked the Engineering Division to extend the deadlines.
Cats Herded
At the March 11 meeting of the Board of Land and Natural Resources, the Engineering Division asked the board to authorize its chair, DLNR director Suzanne Case, to extend the study submission, dam safety permit application, and vegetation clearing deadlines by three months, and the deadline to start construction of improvements to six months after the board approved the dam safety permit.
“While the three-month delay requested by the owners may not be warranted, it may still be the most expeditious path to improving the safety of the structure. Imposing large fines immediately might stop the momentum of the owner concurrence and consultant studies while not providing any significant acceleration of progress toward dam safety. … However, based on history of inaction, we recommend pre-approving enforcement actions should the new deadlines be missed,” the division stated in its report to the board.
The division recommended fining the owners $5,000 if they failed to submit the technical studies on time. If they missed the deadlines to submit their permit application, to clear vegetation, or to execute a contract to do the permitted construction work, the division recommended fining the owners $20,000 for each missed deadline.
If they failed to pay any of the fines associated with missed deadlines, the division also recommended that the board pre-approve fines of $5,000 a day until those fines are paid.
Finally, the division recommended authorizing the board’s chair to further restrict the water level in the reservoir to five feet or some “other level deemed necessary.”
At the meeting, Chang told the board that regardless of whether the reservoir is owned by a single owner or jointly owned, the owners have a duty to make the dam safe. He said his staff had identified 13 outstanding safety issues with the Waiakalua Reservoir.
“Because of the lack of progress, this is a fair solution,” he said of the pre-approved fines.
Board member Vernon Char seemed baffled by the fact that so many owners were responsible for the reservoir.
Gina Belleau of the division’s dam safety section read the department’s administrative rules, which state that an owner includes “any person who has a right, title, or interest in or to the dam or reservoir or to the property upon which the dam or appurtenant work is located or proposed to be located.”
That means that the CPR owners’ shared interest in the TMK parcels that have some part of the reservoir on them qualifies them as owners, even if their individual lots don’t contain any reservoir features.
Board chair Case noted that the state Department of the Attorney general reviewed the case and agreed that the nine identified owners were liable for the reservoir’s management.
“If this fine went into place because they missed these deadlines and someone were to challenge their liability for it, we would certainly deal with it at that point,” she said.
Darrell Holowaychuk of Alberta, Canada, who has been an owner since 2010, has been working with the Engineering Division over the years to help bring the reservoir into compliance.
Although he did not formally request a contested case hearing, he did object to the Engineering Division’s proposal of pre-approved fines, calling them “confrontational and threatening.” He also said the proposed extended deadlines were arbitrary and possibly too short.
In oral and written testimony, he argued that the state was somewhat responsible for the predicament of having so many owners involved.
“In the time I’ve been there, there have been seven ownership changes,” he said, noting in written testimony that during that time, “at least three of the owners refused to return calls or emails to the other owners regarding the dam.”
“Yes, it’s a ‘buyer beware’ and they should know, but they aren’t informed properly prior to the sales,” he told the board.
“The state decided to CPR those lands. The state decided to have nine owners of a very critical piece of infrastructure,” he said. And because of that, he continued, “we need to look at it as a partnership.”
Because the dam had been found to have the potential of killing people, Holowaychuk said, “the state should be sending notification to people below the dam [and] make sure there are no homes or illegal encampments. … If safety is the number one issue, that has to happen. I can’t do it.”
He also said that prospective dam owners should be made aware of their legal responsibilities during the purchase of the land, noting that he only became aware of the DLNR’s dam and reservoir rules last year, while conducting research to respond to the Engineering Division’s September deficiency notice.
“When I went to research these Administrative Rules, I found that they were adopted November 22, 2010. I bring this up as I am wondering why this informational document was not brought to the attention of the owners or referenced until eleven years later in 2021? It would benefit all DAM owners not just the owners of Waiakalua Reservoir if they were made aware of this document and given a link to the document as it would greatly help them understand their responsibilities as DAM owners,” he stated in written testimony.
While he opposed the current proposed fines, he did admit that the Engineering Division’s failure to follow up on its threat of fines over the years “bred complacency with owners.”
“It’s a learning curve. I feel we need to work together and not be confrontational. … It’s a wrong time to be punishing people to resolve a complex issue,” he said.
He reported that the current owners have come together and are working towards remediating the dam. They hired a consulting engineer, Karl Bromwell, submitted a vegetation removal plan and hired a contractor to do that work, and have designated two local owners to do the required seepage reporting.
“We collectively as a group have been funding the necessary engineering work that is underway to the tune of almost $100,000 that is on top of the engineering work that was done previously. …
“[W]e are more organized as an ownership group than we have ever been in the twelve years that I have been an owner,” Holowaychuk wrote.
Board member Char disagreed with Holowaychuk’s suggestion that the state had some culpability in reservoir maintenance because it allowed the lands under the reservoir to be developed into CPRs.
According to the state Department of Commerce and Consumer Affairs, a landowner creates a CPR when the declaration, association bylaws, a map, and a master deed or lease submitted to the state Bureau of Conveyances or the Office of the Assistant Registrar of the Land Court is recorded.
“If the condominium was set up, it was set up by the developer. It was his responsibly to understand what the relationship to the dam was and in turn,” turn that responsibility over to future owners, Char said.
Holowaychuk said that was a legal issue that he would leave to others to decide. “I don’t want to go there. … Let’s work together,” he said.
The newest owner, Theresa Drake, testified that she can’t even can’t see the reservoir from her lot and didn’t know anything about it when she bought it in 2018.
“I would like to cooperate, of course. I’m not wealthy. I feel like this could be a money pit for me,” she said. Drake is one of the owners who have been regularly reporting on seepage to the Engineering Division since January.
“As a newbie, I’m freaked out about the threats of more fines and more fines and more fines. …I don’t know how I’ll be able to manage it in the future. I’m doing what I can now,” she said.
She said that the reservoir level is currently at seven feet. “I would be happy to keep it at that level. … It’s still pretty,” she said.
Who’s Responsible?
In response to some of the issues Holowaychuk raised, Chang noted that maps of the inundation zones beneath each of the state’s reservoirs are available online at the Engineering Division’s website.
He also said that should a dam failure become likely, the county’s emergency management agency would be involved in notifying the public.
The division’s Edwin Matsuda added that dams are required to have emergency action plans and that the division worked with some of the Waiakalua owners on updating theirs a few years ago. He added that the DLNR paid to install water level gages in the reservoir that it monitors, as well.
He stressed the need to have the trees removed. Some dams can withstand overtopping, which causes erosion, but if there are a lot of trees, they create irregularities in flow, he said.
“You start to get more channelized erosion quicker,” he said.
If it overtops and erodes, the concern is that an earthen dam will then have a catastrophic failure and all of the water will rush out, Case added.
Matsuda said the division has identified 21 parcels in the inundation area of a simulated dam breach at Waiakalua.
When Holowaychuk noted that the state does not notify people that they are in the inundation zone, Case replied, “There is an implication in your question that it’s the state’s responsibility to ensure safety. It is the dam owners’ responsibility to ensure safety.”
In the end, the board unanimously approved the Engineering Division’s recommendations, with the added language that the reservoir owners are jointly and severally liable for all fines.
— Teresa Dawson
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