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• <br /> CITY ATTORNEY — CIVIL DEPARTMENT <br /> Bert Teitzel <br /> July 1, 1986 <br /> Page 3 <br /> of the West Amazon Channel will not contain a reasonably antici- <br /> pated runoff and will discharge waters over an area that was not <br /> susceptible to flooding prior to the City's intervention, the <br /> City might face some degree of liability for damages resulting <br /> from a flood. <br /> Although the Levene case predates the enactment of the <br /> Oregon Torts Claim Act, we do not recommend reliance upon any <br /> immunity defenses available under the Act. <br /> To say that the City may have responsibility to act does <br /> not, of course, necessarily mean that the City must act. As long <br /> as the West Amazon Channel stays within its banks, there is no <br /> direct injury to the downstream property owners and so there are <br /> no damages. The City's potential liability is contingent upon a <br /> future event, i.e., a flood that leaves the Channel and actually <br /> causes damage. If the City determines that that is an acceptable <br /> risk when viewed alongside the cost of improving the Channel or <br /> .altering the drainage system to divert the waters another direc- <br /> tion, the City may elect to do nothing. <br /> 2. Channel Improvement. If the City decides to reduce <br /> its potential liability by improving the Channel to accommodate a <br /> reasonably foreseeable flood, its maintenance obligation will not <br /> be significantly different than that which now exists. It is not <br /> the "temporary fix" that creates the city's risk, but rather the <br /> fact that the city has elected to use the Amazon Channel as its <br /> storm water runoff system, diverting storm water into the Channel <br /> and artificially altering the natural system. <br /> 3. Upstream Development Restrictions. To the extent that <br /> the present problem is being exacerbated by further upstream <br /> development allowed by the City's zoning and building permit <br /> system, one alternative would be to restrict building in South <br /> Eugene with respect to any development that would increase the <br /> runoff load in the Amazon Channel so as to minimize or avoid <br /> runoff problems. Another option might be to require developers <br /> to pay a special assessment based upon increased runoff due to <br /> the development, the revenue to be used to defray the costs of <br /> downstream channel improvements. <br /> 4. Downstream Development Restrictions. The fourth <br /> alternative would be to restrict development in the floodplain <br />