CUMMING — Nearly two years after a privately owned earthen dam collapsed, the impasse over efforts to repair the damage and restore the area is headed to court.
During a period of heavy rain on May 19, 2013, the dam holding back Lake Alice near Market Place Boulevard washed away, sending torrents of water and silt into a nearby cove of Lake Lanier and washing out a stretch of Sanders Road in the process.
On April 9, the Georgia Environmental Protection Division filed a request for entry of judgement against the city of Cumming and Mashburn Family Trust concerning the breech and its aftermath. The filing will require a judge to decide between the city’s plan for remediation and one proposed by the Mashburns.
The dam was owned by the family trust, while the city owned part of the water in the lake.
City Attorney Dana Miles declined to comment on the matter Tuesday, citing the pending litigation.
Michael Carvalho, attorney for the family trust, said the parties had “entered into what is called a consent order back in November of 2013 and it provided that there were certain obligations that needed to be met. This filing takes the consent order and asks for an entry of judgment on it.”
According to Carvalho, the obligations included stabilizing soils, clearing stream channels and cleaning out the Lanier cove.
“The parties when we entered into that agreement didn’t know what was going to be required specifically,” he said. “We needed to do the engineering and the assessments and the evaluations in order to come to an understanding of what needed to be done.”
However, the city and the family have been unable to come to an agreement over what action to take, and the time period for the consent order has lapsed.
Carvalho said his clients supported building a weir, a step-like structure that allows water to flow over the top. The city supports a plan that would re-establish the stream bed that existed before the dam was built about 80 years ago.
Once the case reaches the court, the judge would then make a decision on which plan — or a possible combination of the two — would be viable.
“We’ll let a jury decide who is responsible for it later, but we’ve been wanting for a year to get in there and do this work,” Carvalho said. “We’re going to ask for a hearing in front of the judge and ask for the judge to evaluate our proposal.”
Carvalho said that the case was currently scheduled to go before Chief Forsyth County Superior Court Judge Jeffrey S. Bagley, though it’s highly likely he will recuse himself.
Bert Langley, the EPD’s district coordinator, said this winter that the agency had been put in an “uncomfortable position” by the violated 2013 joint-consent order in which the city and family trust agreed to stop the flow of silt.
In a somewhat related issue, Sanders Road has been closed between Buford Dam and Mary Alice Park roads since June 2013, with the governmental stalemate over repairs unlikely to be resolved anytime soon.
Repairs have been estimated at $173,000, but Cumming and Forsyth County’s governments have not been able to agree on how best to share the responsibility.
After some back-and-forth talks, officials with each agreed to pay half. However, problems arose when they also wanted to be absolved of liability by the other party in the dam collapse.
The two sides agreed to mediation on the matter in March 2014. As of last check, no resolution had been reached.
In a separate legal matter, the city, county and family trust have been sued by those affected by the collapse. The residents want the situation resolved, noting that silt continues to flow into the cover after every hard rain.