LIHU'E, Kaua'i — The owner of the failed Kaloko Dam and the state can't agree on whether the structure that holds water in Kaloko Reservoir is or isn't a dam, as defined in state law.

Bill McCorriston, an attorney for Kaloko owner Jimmy Pflueger, said "to call it a dam puts words in my mouth."

The state Department of Land and Natural Resources' Dam Safety Program clearly believes it is a dam.

The agency wants access to Pflueger's property for a more in-depth inspection of the dam that failed on March 14, 2006, unleashing a flash flood that killed seven people and destroyed homes and property.

The point of a "Phase 2" investigation of the dam is "to verify that the dam is safe going forward," said Eric Hirano, administrator of the DLNR Engineering Division. A Phase 2 inspection is not a specific set of tests, Hirano said, but any study of the dam that goes farther than the Phase 1 inspection already conducted. That inspection said "the dam appears to be stable at this time," but there are concerns, Hirano said.

McCorriston says engineering studies Pflueger shared with DLNR officials demonstrate Kaloko's safety. Hirano says the information was "not sufficient."

Because Pflueger formally protested the DLNR's plans, he has been granted a contested case hearing before an administrative officer. The date and officer for the hearing have not been set, but such proceedings often take several months, Hirano said.

Civil lawsuits seeking to lay blame for the Kaloko disaster are set for most of 2009 in a Kaua'i court and potential criminal charges remain under consideration.

With legal issues looming, Pflueger should be assured any dam study the state conducts won't be used against him in court, McCorriston said.

And Pflueger shouldn't have to foot the bill for the study, his lawyer added.

The estimated $280,000 needed to conduct further tests at Kaloko should be available in state funds, Hirano said. He noted that some other Phase 2 studies of dams in the past have been paid for by their owners.