Class-Action Suit: The Verdict

The bottom line is that the neighbors prevailed over Reno.  But, there’s more detail to consider now that the verdict is in.

The Verdict:

  • The jury found for the plaintiffs on inverse condemnation (taking of real and personal property without paying just compensation in violation of the Nevada and US Constitutions).
  • The jury also found for the plaintiffs on conversion (damaging or destroying personal property).
  • The jury denied liability for the trespass (unlawful physical invasion of real property) and nuisance (the creation of a condition that interferes with the use and enjoyment of real property) claims.

Note: the jury verdict on one of the elements of inverse condemnation – “taking,” (whether there was a physical invasion of water that substantially interfered with the use and enjoyment of property) is an advisory verdict. That means the judge has the final say on liability for inverse condemnation.  If the verdict on inverse condemnation becomes final, the damages cap does not apply to that claim. Class members will be entitled to claim the full value of taken property (to the extent it was taken).

The defense and plaintiffs’ counsels have been ordered to meet to hammer out a “Findings of Fact and Conclusions of Law” document to define the outcome of the trial.  The plaintiffs will draw it up.  The defense may object.  The judge will review and enter what he sees fit.

The damages portion of the trial is expected in December.  The parties are ordered to have a settlement conference no later than November 7, 2019.

Verdict minute: johnson minute order

 

Class-Action Suit: Wednesday 6/26

After confirming with the counsels for the defense and for the plaintiffs, the judge brought in the jury and gave them detailed instructions.  There were 44 line items that the judge covered.  Many of these were pretty self evident or seemed kind of technical.  Here are a few of the principal points.  See link to complete document below.

  • The standard for judgement in a civil case is the “preponderance of the evidence” not “beyond a reasonable doubt”.  If the plaintiffs’ case seems even a little bit more convincing than the defense’s case, you must find for the plaintiffs.
  • Bring “every day” common sense to your judgement.  Do not be swayed by sympathy.  Do not guess.
  • Consider only evidence that is presented by witnesses.  The arguments presented by the counsels are not evidence.
  • Deposition testimony should be given the same weight as testimony given during trial.
  • Do not consider damages.  These will be covered in a separate trial if needed.
  • Mobile homes that are not recorded with the Assessor as fixed to the property are “personal property” rather than “real property”.
  • The offenses alleged are “inverse condemnation”, “nuisance”, “trespass”, and “conversion” without compensation.  In effect, Reno used the plaintiffs’ properties to store water (runoff and effluent) for the public good, without compensating the plaintiffs for the use of their property.
  • Approving a tentative map for a development does not constitute “substantial involvement” by the city.  I was stunned to hear this.  Is this the pro-development bias that appears repeatedly in state law?
  • The offense need not be intentional.
  • “Reasonable” drainage is allowed where the benefit of draining onto a private property outweighs the harm to the property owner.
  • The jury shall select a fore-person to represent the jury.  Six of the eight jurors must agree to convict on each charge.

The alternate juror was thanked and excused.  The judge thanked all the jurors for their service and acknowledged the disruption it meant to their lives.

Busby gave the plaintiffs’ summation.  His purpose was to briefly “connect the dots” of the points made by the witnesses.  His summation went like this.

  • This is an important case involving a constitutional issue at both the national and the state levels.
  • The city made this disaster.  The development caused the runoff while the RSWRF expansion added effluent.
  • Reno imposed the cost of the development on the plaintiffs.  Reno saved the warehouses around Silver Lake and pumped water from Silver Lake to Swan Lake.
  • He reviewed the hardship suffered by the Robinson, Johnson, and Walls families.
  • He reviewed DeMartini’s point that the Cold Springs, Silver Lake, and Swan Lake basins all received similar precipitation, but that only Swan Lake had severe flooding due to development there and effluent contribution.
  • Several of the large, new retention ponds had drains contrary to the Reno handbook.  He didn’t ask why Reno did not inspect these large developments in the city.
  • The city did not follow the recommendations in the Quad-Knopf study that they had commissioned.  Since the report, impervious area in the Swan Lake basin has increased 100%.
  • He cited Janelle Thomas saying that the city planned to convert the area from rural to suburban and that they had permission to pump water into Swan Lake up to the Base Flood Elevation that would have flooded many homes.
  • The older county neighborhoods were there in 1986 when the rain was heavier but flooding didn’t occur.
  • Reno owns all the sewer and storm water infrastructure, and they annexed 1800 acres around Swan Lake in 2016 for development.
  • More rain fell during the water years of 1986, 1997, and 2005 than in 2016.
  • Thompson estimated that the development and effluent had added 1.7′ to the level of Swan Lake even based on the under-reported RSWRF flow.  Thompson said that Reno’s contributions will result in earlier, deeper, and longer flooding.
  • This case is not about being pro development or anti development.  Transporting, storing, and discharging water are public uses.
  • “Intent” is not required for inverse condemnation.
  • The definition of “Trespass” includes water.
  • “Nuisance” is legally defined as something that interferes with your use and enjoyment of your propert.
  • “Conversion” is to assert dominion over private property (not real property).

He closed with “Reno gambled by not following the advice of the studies that it had commissioned.”

Shipman made the closing argument for the defense.  His argument was hard to follow.  Here’s what I inferred.

  • In the bigger picture, to protect property rights, we need the city to establish codes and zoning.  Otherwise, development would be a free-for-all.  The city needs to be a referee doing planning with foresight.  The city can enforce its standards.  [This all begs the question of why the city planned for development that would produce flooding.  It does not address why the city did not enforce its own codes regarding retention ponds.]
  • He tried to make the case that the city was not responsible for the retention ponds required for the developments.  These were for private benefit.  [This made no sense: the retention ponds were required by Reno codes to protect other properties.]
  • He argued that “reasonable use” permitted uphill properties to flood downhill neighbors if it was done responsibly.
  • He showed blurry exhibits of aerial photos of the basin from 1939 and 1945 talking about “baselines” that were used for comparison.  His point wasn’t clear.
  • He said the storm was a regional event with states of emergency declared by adjoining counties.  He presented Governor Sandoval’s letter requesting emergency help from the President.  Reno was impacted too: it was a victim.
  • He fears that if the city gets sued for not following a study, that they will simply avoid doing studies in the future.
  • When Reno works with a developer that doesn’t count as substantial involvement, even if Reno approves the tentative map for the development.  [Unbelievable]

Roger gave a rebuttal of Shipman’s statement making the following points.

  • All the plaintiffs’ experts agree on the factors, but had some difference on the quantities.  They used accepted data sources and they visited the site personally.
  • The defense’s experts made assumptions, and didn’t visit the site.  They “cherry picked” the data to try to bolster the case of the defense.  Their analyses used very specific time intervals to support their claims.
  • Forest did not include the overflow of the RSWRF flume and assumed that developments had volume mitigation per the Reno handbook, when they did not have mitigation.  Further, he used uncorroborated rain data and underestimated the impervious area of developments.
  • Forest and McMahon were employees of HDR which was charging Reno $325,000 to support the defense.  Furthermore, Reno granted HDR a new contract ($1,000,000) to do a feasibility study on a possible reservoir in the Silver Knolls area a few days after Forest provided favorable testimony in this trial.
  • The “reasonable use” exception for flooding downhill properties requires proper planning.

The flooding of Swan Lake was not an emergency: Reno designed the sewer and storm water drains to make it happen.  He went back to the opening theme of “Pavement and Pumping”.

The jury took about 4 hours to decide the case.  They sided with the plaintiffs on the “inverse condemnation” and “conversion” charges, but not on the “trespass” and “nuisance” charges.  There will be a new trial in December to determine damages due to the plaintiffs.

Complete jury instructions: Jury_Instructions-062619_01

Class-Action Suit: Monday 6/24

Both the plaintiffs and the defendants have rested their cases.  The judge discussed his plans for the instructions to the jury with the counsels for both parties. There is to be no consideration of the monetary damages that might be due the plaintiffs.  This trial is structured in two parts.  The first part is to determine liability: is Reno responsible for the harm caused by the flooding.  The second part is to determine a monetary award if Reno is found liable in the first part.  If Reno is not found liable in the first part, there will be no second part.  So, the jury is instructed to disregard the issue of monetary damages.  If that trial is called, there will be a new jury.

Roger and Shipman debate the definition of “inverse condemnation” regarding the residents loss of use of their properties.  Shipman argued that this only applied to repeated occurrences and inevitable recurrence to constitute a “taking”.  Roger prevailed on this point.

This session was for the plaintiffs’ rebuttal to the case made by the defense.  The judge pointed out that this was not a time to introduce new information or to revisit points already made.  Roger asserted that Shipman lied about hiring a specialist to make an assessment of the losses and damages to the plaintiffs properties.  Shipman had claimed that the defense hadn’t while Roger had proof to the contrary.  Shipman claimed that the plaintiffs class was not valid since only a few class members had testified.  Roger asserted that the class could be represented by a few plaintiffs exactly as done.

The jury was called in.  Kerry called Linda Walls to the stand and asked her about the state of the flooding when her home was only protected by sandbags.  This was before the Hesco barrier perimeter was completed.  She showed the high-water mark in her carport and the algae bloom in the water.  McKean handled the cross examination.  The Walls moved out in February of 2017 and can’t move back because their septic system is still submerged.  Busby called Jay Rosenthal to the stand.  He is a meteorologist hired by the plaintiffs to review McMahon’s report on precipitation.  Rosenthal asserted that the winter of 2017 was not a once-in-a-lifetime event: it followed a pattern of a heavy winter every 10-15 years.  In fact, it looks like the 2017 winter was the fourth largest for precipitation.  McMahon claimed that the 2017 winter was the worst ever and didn’t consider evidence that it wasn’t.  He used specific dates to make the data look more dramatic rather than considering the characteristics over the entire “water year” (October to June).  McMahon’s use of radar to determine precipitation volume has limited accuracy which was not discussed.  Clouds can have levels with different characteristics, so the radar data can depend on what altitude is being sensed.  McMahon’s use of the Big Meadow rain gauge to estimate the rain on Peavine Mountain was probably not representative.  Rosenthal thought little of the runoff into Swan Lake came from Peavine Mountain.  McMahon used averages for all his conclusions while Rosenthal analyzed  individual storm events.  Sendall handled the cross-examination.  She asked about using NCET weather data.  Both McMahon and Rosenthal used the NCET as an element in their analyses.  Rosenthal claimed that NCET provides accurate data for Reno but the accuracy may not extend to Lemmon Valley.  Sendall introduces the letter written by Governor Sandoval in 2017 requesting assistance from FEMA citing “record breaking rainfall”.  This was objected to given that Sandoval is not a weather expert.  There was some discussion of Rosenthal being retained by the plaintiffs.   Rosenthal asserted that the NCET data was the “best there is” but that it still had its limitations.  For a specific watershed, a scientist should review multiple sources of information to get the best understanding.

Roger called David Thompson back to the stand.  Thompson disagrees with Forest’s hydrological model.  Thompson’s mass-balance calculations cover the entire water year, not just portions of it.  The effect of evaporation is included in the lake level changes as is infiltration.  He thinks there’s very little infiltration under Swan Lake.  Forest didn’t consider runoff before January 1, 2017.  He also used NDEP flow rates for RSWRF when that data is known to be too low.  Thompson used daily rainfall data rather than averaging as Forest did.  The undisturbed surfaces only allow 3-10% runoff contrary to Forest’s claim.  Thompson identified areas where his analysis diverged from Forest’s.

  1. Forest used lower numbers for the effluent flow from RSWRF.
  2. Forest assumed higher runoff from pervious (undisturbed) areas.
  3. Forest assumed that areas with mitigation had no runoff at all.

Shipman handled the cross examination.  He pointed out that RSWRF has been discharging into Swan Lake since the 70’s.  He displayed a graph that was a variant of a Thompson graph, but Thompson didn’t make it and Shipman couldn’t defend it.  It was practically laughed out of court.  On re-direct, Roger asked “Does most run off from development end up in storm sewers?”  The answer was “yes”.

Kerry re-called Donna Robinson to the stand.  She pointed out a couple of erroneous statements by the defense.  Forest and Shipman had asserted that her property had flooded three times when it had only flooded twice.  On re-cross, McKean asked about the timeline for the flooding.  They discussed the 311 number set up for emergencies.

Up next …

Tuesday there will be last minute negotiations including the judge and the lawyers from both sides.

Wednesday the case will go to the jury.  The judge expects them to reach a verdict on Wednesday.

Changing Times: 6/19/19

This is a guest post by Mike Lawson about the Reno Planning Commission meeting.

The Bob Dylan song titled “The times they are a changin’” released in 1964 should have been playing in the background at the June 19 Reno City Planning commission.

Thanks to the persistence of community advocates and leaders Tammy Holt-Still, Denise Ross, Danny Cleous, and Tim Fada (SP?) who strongly opposed approving yet another warehouse development in a flood plain in the North Valleys, the Reno PC voted to “continue” the applicant request until August 7. Sage Point applicant representative John Krmpotic made the request for a continuance based on the macro issues associated with the north valleys’ development, not the least of which is the ongoing law suit brought against the city by residents because of flooding in Lemmon Valley.

The more thoughtful testimony came from the aforementioned citizens who seemed more familiar with the evidence that the current flooding has been exacerbated by irresponsible development than did the city staff or the applicant representatives. Ms. Holt-Still made an excellent point about the required Clomar or Lomar having not been initiated for the warehouse project even though it would need to be completed before the applicant even requested approval of the Special Use Permit. City staff either was ignorant of this requirement or chose to ignore it. Ms. Ross made salient points regarding the air quality impacts associated with increasing diesel truck traffic and the fact that traffic studies used to justify the project do not account for the cumulative impacts associated with accelerated pavement deterioration on US 395. An insight expected (but lacking) from a city pavement engineer rather than a concerned citizen. Of course, the city of Reno does not concern itself with pavement deterioration on a State highway and the Nevada Department of Transportation has no voice in the SUP approval process so yet another deficiency in the process has been revealed. Yes, taxpayers would be on the hook for accelerated maintenance on US 395 and the associated costs.

During the commissioner discussion on the Sage point SUP request, Commissioner Gower asked for clarification from legal counsel on how the current law suit would impact decisions made by the planning commission moving forward.  The response from counsel was that it would depend on the verdict. Commissioner Marshall pointed out that the more relevant take away from the law suit, regardless of verdict, would be the testimony regarding what the city staff knew and chose to ignore or obfuscate when making recommendations for approval of developments in the north valleys (this is a paraphrasing but captures the essence of the commissioner’s remarks).  Commissioner Gower suggested that it was apparent from testimony during the public comment period that the citizens were much better informed and had better answers than staff or the applicant about the potential consequences of approving the SUP.

It was encouraging that the planning commissioners openly questioned the information (or lack thereof) they have been receiving from staff.  This trend of critical thinking and questioning of the “paid for” applicant reports has been evolving at both the Washoe County and Reno city planning commissions and is a direct result of the community activists that take the time to make their voices heard.  Unfortunately, both the Washoe County Commission and the Reno city council continue to overrule their respective planning commissions and approve abhorrent development that benefits their campaign contributors rather than the citizens they were elected to represent. The tide is shifting, but real change will only occur if we hold our elected officials accountable at the ballot box.  Yes, the times they are changin” but only if we all persist in demanding transparency and accountability from our elected officials.  Washoe County commissioner Jeanne Herman and Reno city councilwoman Jenny Brekhus represent the people and ought to be retained.  All of the other Washoe County commissioners and Reno city council members, including the mayor, consistently represent special interest groups that fund their campaigns and they need to be voted out.

Class-Action Suit: Friday 6/21

The defense is making their case.  McKean re-calls Dave Solaro (acting County Manager) to the stand.  Solaro said that the county’s main role was to help with the recovery once the flood was receding.  He made a reference to unincorporated county residents in the area.  He said there were flooding problems all over the county in January and February.  Much of his role was to provide information to Hicks who was the head of the emergency response team.  The county provided Hesco barriers and some earthen berms.  He visited Lemmon Valley once or twice a week.  The county notified residents that flooding was expected.  The North Valleys road supervisor was the first one to warn of flooding in the area in December.  In January they received a number of complaints about flooding in ditches and culverts.  Solaro pointed out the county’s Lemmon Valley sewer plant on the aerial view.  Washoe County did not take flood-level measurements in January.  Solaro doesn’t know why they didn’t.  They started tracking the level in February.  He discussed a flood area map showing the lake level was below the nominal flood stage of 4924 (Base Flood Elevation).  Sean Keating did the building inspections and reported the results to Solaro.  Solaro claimed that the county did not evict anyone from their homes, but the red tags received by 14 home owners said “do not enter”.  Solaro said he had no concern about the safety and integrity of the Hesco barriers.  He did not know about the ones that failed dramatically in Davenport, Iowa.  Busby handled the cross examination.  He asked why the barriers were put up on Albert St. but not on Pompe.  Solaro said that Hicks thought the water was too deep to do it safely at that time.  “Did the county know how much water was being pumped from Silver Lake to Swan Lake as infiltration and inflow of runoff in addition to the sewage flow?”  Answer “no”.  Solaro’s principal goal was to protect homes.  The Heppner subdivisions were in Washoe County.  They were built in the 70’s and are on septic systems.  Solaro asserted that the lake is now at the same level as at the peak in 2017.  He agreed that the installation of the Hesco barriers may have raised the lake level.  Solaro couldn’t say that the flooding had subsided over time.  The Hesco placement started with the recommendations by the Army Corps of Engineers.  He was not aware that a lot of runoff was being pumped to Swan Lake from Silver Lake.  McKean handled the re-direct examination for the defense.  “Did Reno ever ask LVWRF to stop discharging to Swan Lake?”  Answer “No”.  Solaro asserted that LVWRF didn’t flood, but that the evaporation ponds did.

Sendall called Mark Kaminski to the stand.  He’s a civil engineer who works on water pollution control under NDEP.  His interest is technical compliance, inspection, and plan review.  His department mostly reviews waste water treatment facilities performing 40-80 inspections a year on facilities both public and private.  They verify that permit holders are in compliance with flow limits and other conditions.  There were excess flows from all the area waste treatment facilities including RSWRF, TMWRF, LVWRF, STMWRF, and Cold Springs due to storm water infiltration.  Kaminski asserted that RSWRF is “owned and operated by Reno” when it is operated by Sparks.  According to his records, the RSWRF plant only exceeded its monthly permitted flows in February 2017.  There was no action against Reno for this.  NDEP will not take action if the violation is due to extreme weather.  RSWRF didn’t report that their effluent quality was non-compliant.  This may have been because they only sample weekly and may have missed the worst interval.  He said the Lemmon Valley plant (LVWRF) operated by Washoe County was the most affected by storm water infiltration.  Roger handled the cross examination asking whether NDEP verifies the inlet and outlet flows reported by RSWRF.  Kaminski said that they did not and only used the data that RSWRF reported.  Roger pressed the point that the outlet flume had been overflowing for 83,000 minutes during the storm so that the data was clearly too low.  Kaminski did not see a corrected report from RSWRF indicating that their recorded data was not accurate.  He will not do another review of their data.  Kaminski reported that the private sewer lift station at Urban Outfitters had failed during the storm.  Sendall covered little in her re-direct.  On re-cross, Roger made the point that Swan Lake water ended up on Washoe County property when it flooded the LVWRF plant.

Shipman called Joe Coudriet to the stand.  Coudriet is a civil engineer and a manager in the Reno Public Works department.  He manages the RSWRF plant from an office in City Hall.  He is responsible for flood plain management, and water reclamation.  He doesn’t have much of a role in the sewer “collection system”.  He was emphatic that no one pumped storm water from Silver Lake to Swan Lake.    On cross examination, Roger pointed out the apparent inconsistency.  Coudriet was adamant that “infiltration and inflow” (I & I ) was not the same as runoff.  Of course, the I & I is runoff that gets into the sewer line.  Coudriet explained that their goal is to minimize I & I, but that it is incidental to the design.  Roger got him to concede that the design “incorporates” I & I.  Coudriet’s earlier deposition had presumed that the RSWRF flow data was accurate.  He only later learned of the overflowing flume at RSWRF.  Roger asked why he had proposed to expand the RSWRF plant capacity from 2 mgd to 4 mgd given that he had expressed concern over increasing the flowrate to Swan Lake in 2016.  He had communicated to Janell Thomas that flooding conditions are anticipated in the winter that might last for weeks or months.  RSWRF had an inlet bypass line connected that would have sent some of the inlet volume directly to TMWRF, but this bypass line failed during the storm.  Roger “As the flood plain manager, do you review new development regarding the possible flood impacts?”  Answer: yes.  Roger asked if he’d reviewed the recently approved Makita warehouse project on the shore of Swan Lake.  Coudriet said he hadn’t seen it, but he had seen the new Logisticenter application.  Roger “Between 2005 and 2016 did Reno build any discharge options outside of the basin?”  Answer: no.  On re-direct, Shipman claims that the problems are very complex and many don’t have yes-or-no answers.  Coudriet said that Reno routinely prepares for flooding every winter.  Shipman goes on to ask about getting approvals from FEMA in the form of CLOMR‘s and LOMR’s.  The bypass line to TMWRF (aka flow-shave) has been in place since 2003 or 2004.  Surprisingly, Coudriet didn’t recall his recent proposal to the Reno Planning Commission to increase the capacity of the RSWRF plant.

Shipman calls Antone Sallaberry to the stand.  Sallaberry is a public works supervisor responsible for sewer system maintenance.  His group (30 employees) takes trouble calls regarding the sewer system.  He also handles storm water service of ditches and inlets as well as residential issues.  He was out in the field during the 2016 storms.  They had to monitor the pump stations 24-7 during the storm.  Many were at risk of becoming overwhelmed.  The biggest crisis was the failure of a pump station at Huffaker.  The Moya pump station has been problematic and had trouble keeping up.  A portable pump was brought in and pumped the sewage into trucks which then discharged to a nearby RSWRF connection.  In his opinion, the North Valleys sewer system was stressed, but worked mostly OK for the 2016 winter storms.  In his cross-examination, Roger asked “Why not keep the I & I out of the sewer system?”  Sallaberry answered that they’re doing what they can.  They didn’t know where the high-flow of I & I was coming from.  Roger showed a slide identifying manhole covers that the city considered at risk for leaking.

The defense rested.  During the afternoon session, Judge Breslow met with the legal teams to determine the rules for the coming week and what should be in the jury instructions.  Monday will begin with the plaintiff’s rebuttal.

Disclaimer: this report was made without the benefit of a transcript or a recording.  It may contain inaccuracies and quotes attributed to individuals may be inexact.

REFERNCE:

Map of flood area: +537 Community_SwanLakeLevel_4920pt8_20171113

Graph of flood elevation: 539 graph

Class-Action Suit: Thursday 6/20

Reno’s Jonathan Shipman calls Mark Forest to the stand.  Forest has been retained by Reno to discuss events of 2017 relating to Lemmon Valley flooding.  He’s testifying as an expert hydrologist.  He has a BS degree from Arizona State and a license to practice as a civil engineer.  He also has a certificate in flood-plain management.  He has reviewed area development plans for FEMA regarding flood hazard.  He has done mostly consulting through his career and opened the Reno office for HDR Engineering.  This is a large corporation with over 100 offices.  He’s a vice president and head of the Reno office.  He made a terrain model of the Swan Lake basin using LIDAR (laser-based radar).  He pointed out that a playa will develop a “hard pan” made up of sediment and minerals left when the water evaporates.  This tends to be relatively impermeable.  Due to the hard pan, most of the percolation into the soil occurs close to the perimeter (shore).  There was a description of aerial photos taken in 1939 and 1946 showing basin features from those times.  RSWRF was originally built to serve the Army Airbase at Stead before there were any residential developments.  Forest claims that the berm on the east side of Swan Lake is actually a natural dune formed by wave action from the wind.  Flood plain management started in the 70’s with areas of high flood risk identified.  FEMA maintains the flood-risk maps but does no enforcement.  FEMA updated their maps in ’84 and then in ’86 with a contract with Nimbus Engineering where Forest was employed.  The flood of ’86 occurred shortly after the study started demonstrating where the flood plain was.  They established the Base Floodplain Elevation (BFE) for Swan Lake and Silver Lake.  Forest also had an informal role in producing the Quad-Knopf study (40 PLF 1812- 2338 North Valleys Flood Control, Vol I & II, Quad Knopf_ABBR) about the flood risk due to runoff.  Forest asserts that the runoff from development approved from 2001 to 2017 would only add 70 acre-feet of water to the lake raising the surface only 1/2 inch.  He says the residential lawns do a lot to reduce runoff from developed neighborhoods.  Forest further asserts that RSWRF contributed less than 800 acre feet of water to the playa from January 1 to mid April.  Forest claimed that Thompson did not adjust for evaporation in his calculations.  He thinks that only 18% of the rain/snow that falls in the Swan Lake watershed ends up as runoff into Swan Lake.  Roger Doyle approaches Forest on cross-examination asking whether infiltration and inflow (I&I) into the sewer inlet occurred.  It certainly did.  Infrastructure design should take this into account.  Forest admitted that development was putting more water into the lake than was lost by evaporation.  Reno owns the right-of-ways, easements, or properties where the sewer infrastructure is installed.  Forest admitted that he has not visited the sites to see the city’s sewers and drains.  He didn’t know that the majority of developments had no water-volume mitigation features.  The Truckee Meadows Regional Drainage Manual indicates that 65% of precipitation in developed areas results in runoff, not 18%.  Roger “Did you select methods to support the answer that Reno wanted?”  Forest did not corroborate his methods or result with anyone.  In his deposition Forest was quoted “I don’t think anyone missed that it was going to flood.”  There was less rainfall measured at the Stead gauge in 2017 than in 1986.  Roger picked at inconsistencies between Forest’s testimony and his deposition.  At one point, Forest made a retort that drew a swift admonishment from the judge.  Also from Forest’s deposition “Some properties suffered flooding due to RSWRF effluent.”  Reno paid $325,000 for HDR’s services in supporting this case.  Reno has paid HDR $1.3M over the last ten years and is considering awarding them a contract to investigate the creation of a remote reservoir in the North Valleys.  Roger “Do you agree that if you had reached an unfavorable conclusion in this case that the city would be less likely to award HDR the next contract?”  Shipman took over the re-direct stating that resident Robinson had suffered three flood events (she suffered two flood events).  Forest asserted that these could not all be attributed to the rising lake level.  They made an argument based on an unverified table to claim that any flooding was due to rainfall since the effluent and development only added 0.7 feet to the lake level.  Roger asked on re-cross-examination “Was Reno ever offered flooding mitigation options before 2016?”  “As a vice president at HDR do you get profit sharing?”  Answer “Yes”.

Shipman calls John Flansberg to the stand.  Flansberg is the Director of Public Works for Reno.  He’s Joe Coudriet’s boss who is Robert Zonki’s boss.  Zonki is the manager at the RSWRF plant.  Flansberg is a civil engineer and has worked for Reno for 7 years.  They expected the winter of 2016 to be wet from information from the National Weather Service.  They made some preparations of clearing drainage ditches and locating sand for sand bags.  Washoe County, Reno, and Sparks all declared states of emergency once the storm hit and coordinated through a regional emergency operations center.  He was initially concerned about flooding in Silver Lake and ordered Hesco barrier installations around parts of the shore.  He didn’t order the pumping of lake water to Swan Lake and didn’t know anyone who did.  On cross examination, Roger asked “Does the use of sand bags just move the water and raise the level of the lake?”.  Answer “Yes”.  Reno knew they were pumping runoff along with sewage to the RSWRF plant that would flow to Swan Lake even though the Hesco barriers were up in Swan Lake.  “What did Reno do to limit storm water leakage into the inlet at Moya Road?”  Most of the manhole covers had been identified as at risk for flood leakage.  Flansberg said that they put a lining in some of the sewer lines to prevent leakage into the pipe.  He didn’t know if this was done at the Moya Lift Station.  The planning staff reports to Flansberg.  He did not know that they had just recommended approval of another giant (500,000 square foot) warehouse on the shore of Swan Lake.  Flansberg did not seem to know that the Reno design manual requires mitigation on all projects to reduce runoff.  The first time he asked anyone on his staff to look into mitigation was 2018.  Flansberg said he had inspected the retention and detention basins for recent projects and found them satisfactory.  Roger asked about the Reno design manual that calls for a gravel fill (essentially a French Drain) around a sewer line which creates a conduit for runoff to enter the sewer system.  Shipman asked about hook-up fees and other taxes when he started the re-direct examination.  Roger made the point on re-cross examination that the sewer hook up fees could be used for flood mitigation.

McKean calls Dave Solaro to testify for the defense.  He’s the acting manager for Washoe County.  He’s a civil engineer and an architect.  He’s the sole employee that reports to the Board of County Commissioners (BCC).  This is a very sensitive witness since the issue of Washoe County’s role in the flooding can’t be raised.  He says his role is to see that local codes conform to the master plan (probably “area plans”).  Building inspectors, that report to him, made trips to Lemmon Valley.

>> Disclaimer: these notes may contain errors or inexact quotations.  They were not written with the benefit of the court transcripts.

Class-Action Suit: Wednesday 6/19

The plaintiffs witnesses continued in the morning.  Cameras were allowed in the courtroom, so there is local news coverage today.  Roger Doyle calls David Thompson to the stand for the plaintiffs.  He is a PhD Civil Engineer licensed in Nevada who taught as a professor at Texas Tech University.  He is widely published.  He describes himself as a surface-water hydrology specialist.  He said his work in Texas is applicable to Northern Nevada since Texas also has playas and playa lakes similar to here.  He was retained by the plaintiffs to determine how much local development and waste water production contributed to the flooding in Swan Lake.  He concluded that impervious surfaces resulting from development contributed to the level of Swan Lake.  He reviewed a number of reports commissioned by Reno and also water level data from Washoe County and the flow data from RSWRF.  He reviewed detailed area maps to determine how impervious-surface areas had changed.  He made several trips to the site to see the watershed (slopes that drain to the playa), developments, and detention basins first hand.  He was there during a rain storm to see how the runoff flowed.  He’s had some conversations with the plaintiffs’ expert Stoner.  They take different approaches, but agree on the conclusions.  He made a limited model (in a spreadsheet) that effectively “reverse engineered” the impact that development and effluent had on the level of Swan Lake.  He was trying to determine the difference that development and effluent made; not a model that tracked all the factors determining the level of Swan Lake.  Information in the Quad-Knopf study allowed him to determine the approximate section profile of Swan Lake (it’s not straight-sided like a swimming pool).  For example; when 2 feet deep, it spread out to a certain area, but when 4 feet deep, it spread out to a different area.  He calculated the volume of Swan Lake in 2017 as 9600 acre-feet.  He described a conventional “water year” as running from October 1 to September 30.  He considered the increased impervious area due to development between 2005 and 2017.  He only considered increased runoff and effluent contributions.  He said other contributions were insignificant.  He used data from the Stead rain gauge (by the fire house) since it is the only one that is part of a national program.  He described the rainfall for 2017 as “large” but not “historic”.  He said we get a large rain event about every 10 years.  The “frontal” storms are the ones of interest relative to flooding.  These are produced by a broad front that brings precipitation to a large area.  The “local” storms are largely thunder storms that do not occur frequently during the “water year”.  He said that development close to the lake had the most impact in terms of runoff into the lake.  He reported that in 1986 there were 1,039 acres that were developed.  In 2005 the number had increased to 1,556 and then to 2,033 in 2016.  He thinks Reno’s mitigation efforts had negligible effect.  Some of the water will dissipate through percolation into the soil or evaporation.  Infiltration and inflow to the sewer system is a factor, but it is included in the RSWRF outlet volume data.  He calculated that RSWRF contributed 2500 acre feet to Swan Lake raising the level 1.7 feet.  He had a key graph (105 Figure 3 – Stage Hydrograph) that showed what the lake level  was, what the lake level would have been without the effluent, and what the lake level would have been without the effluent and the extra runoff produced by development.  The top line shows the actual recorded level of Swan Lake.  The second line down shows the lake level if the effluent from RSWRF had not gone to Swan Lake.  The third line indicates the calculated lake level if the effluent were removed and the development had not increased the runoff.  Thompson concluded that Pompe Drive would not have flooded absent the effluent and the excess runoff from development.  Note the “BFE 4924” line.  Reno has a permit to add water to the basin up to the Base Flood Elevation determined by FEMA.  The storm of 2017 would not have caused flooding in 1986 because there was less effluent going into Swan Lake and less development to produce excess runoff.  Thompson believes his assumptions are conservative and that Reno likely contributed a bigger fraction to the volume of Swan Lake.  Thompson asserted that the Quad-Knopf study of 1986 gave specific instructions regarding development (not followed by Reno).  “Did the city effectively deal with the increased runoff?” Answer “No.”  “Did the city effectively address effluent discharge?”  Answer “No.”  The impervious surfaces caused by development made the flooding earlier, deeper, and last longer.”  Reno’s expert agreed with Thompson as to the causes and effects, but disagreed as to the specific calculations regarding impervious surfaces.  The lake level is now 0.7′ below the maximum in 2017, but still 2′ over Pompe Drive.  Reno could have implemented effective mitigation that would substantially reduced the flooding, but the city did not follow good engineering practices to provide effective mitigation.  Shipman handles the cross-examination.  He made the point that Thompson didn’t look at any of the building plans for the developments or for the public infrastructure.  They discussed how the impervious surface areas were determined.    Thompson’s model doesn’t account for evaporation or percolation.  He concedes this, but his objective was to determine how much volume was added by Reno’s actions.  It was not to model the history of the lake level.  Shipman’s questions were long-winded with dependent clauses so that it was not clear what he was asking.  He had to restate many of the questions because Thompson did not understand them.  He said his work did not depend on the work done by the previous witnesses DeMartini and Stoner.  The flood contribution from Washoe County development was not included.  Thompson did not consider runoff from the areas where the soil was undisturbed.  He said that including this would not have made a significant difference.  Under re-direct-examination, Thompson asserted that Reno contributed about 25% of the volume of the lake raising the level 1.7′.  Shipman produced a table under re-cross-examination showing plaintiff properties and their elevations.  They seemed to indicate that the properties were above the flood level.  Roger asked Thompson about this.  Thompson said that he hadn’t seen this information and that the table might show only the highest point on the properties.

This completed the plaintiffs’ case.  It’s the turning point in the trial.  The defense will now present their witnesses and make their case.

Chanden Sendall called Michael McMahon to the stand.  He’s a hydro-meteorologist who had a long career forcasting rain falls for Lockheed and Boeing and then HDR Engineering.  He now does consulting for the California Water Resources Board.  He does “site specific probable precipitation studies” to determine how much water will likely flow to a dam.  He used five rain gauges (NCEP) in the Lemmon Valley area.  He used these to verify the results of radar (dual-doppler) images showing rain and snow in the area.  The radar gauges gave detailed readings all over the area with measurements every 6 hours.  He hopes to be within a 10% margin of error between the two measurement techniques.  Some rain maps showed pretty even rain in the area while other times the rain was more concentrated in small  areas.  His opinion is that the rainfall of 2017 was unprecedented.  It was the fact that so much fell in a short period, not the sum total.  The area south of 395 received the most rain.  His second opinion is that the snowfall is the highest seen in recent years.  He used data for snow accumulation at Big Meadows 8 miles southwest of Peavine peak where there is a SNOTEL station providing automated measurements.  He claimed this was the highest snow level recorded since 1984.  Roger handled the cross examination.  McMahon admitted that he had only made a single trip to the area, and it was the day before he gave a deposition.  McMahon was reluctant to agree to points that he had made in his previous deposition.  He had no personal experience of living in the valley and observing the precipitation first hand.  Reviewing his results, Roger indicated that McMahon had three different results for certain areas.  Roger asked “Which one is correct?”  McMahon had no answer.  Roger made the point that the data can be manipulated by picking different ranges of dates.  McMahon concurred.  Roger made the point that there were no rain gauges south of 395 where the radar showed the highest precipitation.  McMahon admitted that there was no way to verify the radar results in this area.  McMahon used three rain gauges outside the area for his calibration but didn’t use the one at Stead which is the only one that is part of the national system.  Roger pressed on about the fees that McMahon was charging Reno for his services.  McMahon did not dispute that it might be over $100,000 including McMahon’s assistants.  Sendall’s re-direct examination was mostly repetitive.  On re-cross-examination, Roger challenged McMahon’s opinion that the most rain fell in the shortest time in 2017.  This is not what the graphs show.

 

Editorial note: McMahon came across as a little flip and humorous.  He had the demeanor of a salesman.

Local TV coverage:

KOLO-8