Miami officials said Wednesday they will spend up to $300,000 for a flood study as an initial step toward possible litigation against the Grand River Dam Authority.
The action was approved during a join meeting of the city council and the Miami Public Utilities Board.
The Public Utilities Board approved the appropriation of up to $300,000 of the board's emergency fund to pay for the costs of the flood study.
The study will analyze the impact of the 2007 flood. Although studies have been conducted in the past, Larry Bork, a Kansas City attorney who has worked with the city since 1993 concerning flood issues, said those studies were concluded based on the impact of small floods.
The flood of 2007 was not a small flood and, therefore, studies need to be conducted in order to determine the impact of this much larger flood, according to Bork.
The results of that study will determine who will have claims against GRDA.
Last year, hundreds of homes and businesses in Miami were destroyed when the city experienced the second most devastating flood in its history.
Bork said Wednesday that GRDA took no action to purchase additional easements even after studies concluded the probability of future flooding in the Miami area.
“When there was a decision being made as to whether to build Pensacola Dam in its location, there were multiple engineering studies that were done Š by GRDA and the licensing officials,” Bork said. “All of those three studies concluded that there was an extensive backwater effect in this area - Ottawa County and the city of Miami.”
Bork said the studies identified elevations that were consistent with one another - 769 or 770 feet. However, there were only easements taken to elevations of 760 feet.
“The reason I wanted to highlight that is because this is not an issue that is new - it is not an issue that is really in debate,” Bork said. “There is an extensive backwater effect in the city of Miami caused by the Pensacola Dam.”
Bork told city officials that there was a memo generated in the 1960s in discussion between GRDA and the Corps of Engineers.
The memo allegedly expressed knowledge of the potential of future flooding and stated that “we do not need to buy anymore easements in this area because the city has been flooded multiple times and haven't done anything about it,” Bork said.
“Because of the inaction of the people back in that time frame, the government put on the back burner the issue of purchasing additional easements,” Bork said.
When he began working on the flood issue in 1993, Bork said GRDA and the Corps of Engineers took the position that there was not a backwater issue in Ottawa County.
“There was a need to nudge GRDA and the Corps to investigate the issue further,” Bork said. “The lawsuit filed in 1994 was the vehicle for that.”
During that litigation, it was determined through the courts that there was a backwater effect caused by the Pensacola Dam that was present in Ottawa County and the city of Miami.
“There also was a determination that GRDA was liable for those damages,” Bork said. “Those general principals are still applicable today.”
As a result of that litigation, there were damages paid that totaled approximately $11.5 million.
“The positive impact of litigation is not why I'm here and not what I want to address with you,” Bork said. “There is a negative impact of having a city that is always susceptible to potential flooding.”
Bork said he was amazed to see that so many people are rebuilding in the Steve Owens Boulevard area following the July 2007 flood.
“I have to give the citizens and businessmen in that area credit,” Bork said. “But they have to know that they are taking the risk of additional flooding.”
Bork said his recommendation to the board is to find a solution to minimizing the flooding.
“One of the ways, not necessarily the only way, is to keep pressure on GRDA,” he said. “In a strange way, I would suggest that suing GRDA would actually help GRDA.”
According to Bork, GRDA is forced to go to the Corps of Engineers and ask for a solution. A lawsuit would give GRDA an entry to the Corps of Engineers to find a solution.
In dealing with a lawsuit, Bork said the city should look at the bigger problem - future flooding.
Law provides for a one-year window in which a government entity can be sued, according to Bork.
Because the initial flooding that resulted in the Flood of 2007 began in early May, the city has approximately six weeks to file a torte claim notice advising GRDA of possible litigation.
“Those who were affected by the flooding in July of 2007 need to have their torte claims filed with GRDA by May,” Bork said. “My suggestion and my request to the City of Miami is to help facilitate that action, not just for the citizens that were flooded but for the overall development of the city.”
Council member Rudy Schultz said the council has an “ethical responsibility to the many citizens who were damaged to establish a suit, which could become a class action allowing them to seek redress.”
“We're not talking about homes that were red tagged and not allowed to rebuild,” Schultz said. “We believe about 1,000 of our citizens were financially damaged that could have claims should they chose to join the class action suit. We feel as though we have a judiciary responsibility to seek recovery of the city damages.
“We also have an obligation to seek a long-term solution to our community's ongoing flooding problem. We believe a long-term solution is in the best interest of all citizens.”