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081518-qct-qca-Pheasant-Creek-007

In this photo taken in August, Davenport resident Jesse Hammes looks down from his driveway into Pheasant Creek. The creek wasn't this close to the driveway when he began building his dream home, seen in the background, in 2012. But flash flooding has caused severe erosion, dislodging trees and tearing chunks of ground out of the bank.

A Davenport homeowner has filed at complaint against the city of Davenport, claiming that his home along Pheasant Creek has been rendered literally worthless due to erosion that occurred because the city has been negligent in storm water control.

Jesse Hammes, of 2911 E. 39th St., filed the complaint requesting an injunction in U.S. District Court, Davenport, on his own behalf.

He alleges his subsurvient, or downstream, land rights have been violated because the city allowed commercial development without adequate storm water detention or retention. As a result, the creek by his home has severely eroded, and his home "is currently unsellable."

"With the ongoing loss of real property, plaintiff's driveway and home are subject to the creek's erratic  behavior each time it rains," Hammes states in his complaint. "Without intervention, it is inevitable the creek will consume the driveway, leaving plaintiff without access to the home."

The suit also states that Hammes has brought in 75 loads of backfill to keep his driveway from collapsing into the creek.

Hammes is asking for monetary damages, including $1,975,000 for what he estimates it would cost to fix current problems along his property by removing trees, replanting trees and other vegetation, restoring the stream bank, "armoring" the driveway and backfilling to regain property that was washed away.

He also is asking for $37,875 for costs he has already incurred in trying to fight the city and the creek, including the placement of backfill, attorney consulting fees, contracting for a hydrology study and surveying.

Finally he is asking that the city "engineer and create a regional detention area, or multiple areas, for all the properties developed in the Pheasant Creek watershed, to discharge water onto subsurvient properties at the natural volume and flow rate, as required by federal law and city of Davenport ordinances."

City response

Davenport City Attorney Tom Warner did not respond to a voice message asking for comment.

However, in a story about Hammes and his erosion problem published in the Aug. 26 edition of the Quad-City Times, city risk manager Jim Forsyth disavowed responsibility by the city.

"When you built your home, the majority of the business adjacent to, and north of, your property was already in place," Forsyth wrote in a September 2017 email to Hammes that was provided to the Times.

"Any and all development met all code and building requirements at the time. Anything develop(ed) since then has been built to code as well.

"The unfortunate truth is that the creek is yours and yours to deal with. Any issues you have with run off from the businesses to your north and east will need to be taken up with those businesses."

"The City has empathy for your situation, but we simply cannot accept responsibility."

The scope of the storm water issue

Hammes' home is located near the end of Pheasant Creek, where it flows into Duck Creek in the vicinity of East Kimberly Road and Elmore Avenue.

Pheasant Creek and the smaller streams that feed into it drain an area of roughly 2,900 acres that includes all the commercial developments in Davenport on either side of Elmore Avenue and Interstate 74 — from East Kimberly Road on the south to Veterans Memorial Parkway on the north.

In other words, it drains the land where almost all of the significant commercial development of the past 30 years has occurred, and when rain falls on its impervious surfaces, it all drains down into Pheasant Creek. Considering that one inch of water falling on an acre of land equals 27,153 gallons, that is a lot of water.

The developments that cause the biggest problem for Hammes are those closest to his property, south of 46th Street, he said.

This means Kohl's, the Senior Star at Elmore Place senior living complex, and the Heart of America Group development that includes the Holiday Inns & Suites, DSW, Beauty Brands, the Gap and Banana Republic factory stores, Lane Bryant, Carter's, Pier 1 Imports and, most recently, the HomeGoods store.

In his complaint, Hammes notes that Kohl's has been under a repair order issued by the city for two years, but so far no steps have been taken to remedy severe erosion behind its parking lot.

Hammes also states that in 1989 the city contracted with an engineering firm to develop a comprehensive storm water management plan for the Pheasant Creek watershed, but that the city ignored recommendations that would have made a difference for his property.

While Hammes' complaint is unique to his situation, it is not unusual.

All across the state, all across the country, individuals and communities are wrestling with storm water issues that are exacerbated by two things: new development and seemingly more frequent, heavy rains.

Joe Griffin, storm water enforcement coordinator for the Iowa Department of Natural Resources in Des Moines, told the Times in August that "hardly a week goes by" when he doesn't get a call from someone wanting to discuss the very issues Hammes raises — eroding stream banks, increased water flow and who is responsible.

He tells callers drainage issues are a civil matter.

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