A lawsuit to stop Juneau’s municipal government from installing HESCO flood barriers along the Mendenhall River was filed this week by a property owner claiming the city bypassed federal assessment and permitting requirements in approving the semi-permanent levee now being constructed.
Stephen Bower, a resident on Long Run Drive, is seeking to prohibit the city from installing the barriers on his property and for the Local Improvement District (LID) established by the Juneau Assembly for the affected neighborhood to be invalidated.
“The entire project must be scrapped,” states the civil lawsuit filed April 8 in state superior court against the City and Borough of Juneau.
Bower’s attorney, Scott Perkins, said in an interview Friday other property owners are expressing interest in joining the lawsuit.
The barriers are intended to protect homes in the designated area from glacial outburst floods that have occurred at record levels in early August each of the past two years, damaging more than 300 residences. The Assembly approved the LID in early February after the U.S. Army Corps of Engineers, which is providing enough barriers for a two-mile initial phase of the project for free, told local officials there is no other effective preventative measure that can be installed by this summer’s flood season.
The HESCO levee is intended to last for up to a decade while a more permanent solution is researched and implemented.
While the barriers are being provided to CBJ for free, the city is responsible for installation and maintenance costs estimated at nearly $8 million. The city is paying 60% of the cost and requiring the 466 property owners in the LID to pay nearly $6,300 each to cover the remaining 40%.
CBJ officials expected legal challenges to the LID, but the city — which has been in constant communication with federal agencies involved with the project — has obtained all the required permits and other authorization for the work being performed, Municipal Attorney Emily Wright told the Empire on Friday. She said the claims made in Bower’s lawsuit are based on inaccurate assertions about federal and state regulations.
The lawsuit asserts the Mendenhall River is a navigable waterway protected by the federal Clean Water Act as well as an environmentally sensitive area protected by the Magnuson-Stevens Fishery Conservation and Management Act, so environmental assessments and proper permits are needed from the Environmental Protection Agency and Bureau of Land Management for a development project such as the levee.
Furthermore, the lawsuit argues the barriers violate a provision of the Alaska Constitution that states “private property shall not be taken or damaged for public use without just compensation.”
“The Hesco carriers occupy physical space on (Bower’s) property, rendering it unusable,” the lawsuit asserts. “The Hesco barriers destroy the view for which the property was purchased. Bower is damaged by the barriers as they are the very definition of a taking: using private property for a perceived public good.”
Bower claims in his lawsuit his home is 21 to 22 feet above the riverbed, while last year’s record flood reached 15.99 feet, so his property was not damaged and the barriers would provide no additional protection.
“The solution is not a payment by Juneau,” the lawsuit states. “The solution is not installing the barriers.”
Wright said “this is not a federal project, nor is it federal waters” — and as such isn’t subject to assessment and permit requirements Bower claims are necessary.
“I know that they are complying with everything that the state and the feds are telling them to do,” Wright said, referring to the city engineers and other officials working on the project.
CBJ officials are also emphasizing the “improvement” part of the LID, stating that the district can be established and property owners charged because the work done is an enhancement to the properties. All 466 property owners were notified of the plan and given a chance to formally object — a total of 117 objections were filed, although property owners who didn’t respond were tallied as a vote in favor of the project.
That is another point of contention in Bower’s lawsuit.
“Juneau committed a deceptive practice by attempting to trick property owners into waiving their rights,” the lawsuit states.
Installation of the barriers started March 24 and about 2,500 linear feet of the levee was installed as of April 9, according to CBJ’s website for the project.
Wright said installation of the barriers will continue while the lawsuit is pending. The city has 20 days to file its initial response and she said it’s likely to be about a month before substantial matters related to the case are initially argued.
If the lawsuit is successful, the impacts of one or more gaps in the levee “would be a serious question for engineering” in terms of how it would affect the barriers’ ability to control flooding, Wright said.
“It certainly would put a whole heck of a lot of water right into Mr. Bower’s property and allow that water to move into the larger community past his doorstep,” she said. “So and if we do that at two or three other points I think that there’s a good argument that the integrity of the barriers is completely broken.”
• Contact Mark Sabbatini at mark.sabbatini@juneauempire.com or (907) 957-2306.
