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Published February 22, 2017
Moraga challenges EBMUD in year-old landslide incident

Despite the East Bay Municipal Utility District claim that nothing can be done at this time due to pending litigation, the Moraga town council is urging the agency to take action to ensure safety and provide appropriate service to residents impacted by the landslide that formed a year ago downhill from Augusta Drive.
After a public outcry at its Jan. 25 meeting, the council asked that EBMUD come to update the town on its plan to restore the use of the Moraga-Lafayette trail section between Canyon Road and the neighborhood park across from 803 Augusta Drive, and address the landslide that followed the trail failure in January of 2016.
Alison Kastama, special assistant to EBMUD general manager, came to the Feb. 8 meeting but merely stated the agency was "aware of the situation." Kastama said that the first priority of the agency was the safety of the residents, which was why the trail had been closed and would stay that way for at least two years. She also explained that since the trail is not an EBMUD infrastructure involved in the production and transportation of water, it is not a priority for the agency.
EBMUD will therefore not engage in repairs at this time, she said, and it denies responsibility in the landslide that has forced a Moraga family out of their home since last year.
In a letter sent to the town, Kastama wrote, "At this time, the evidence does not support that EBMUD caused or contributed to the slide and therefore it does not believe it is legally responsible for the slide."
The responsibility for the landslide and who should pay for the damage to the houses will be debated in court.
There first needs to be a decision about whether the landslide was a natural phenomenon or was the result of negligence. If a natural phenomenon, EBMUD would not be responsible for the damage to the uphill houses.
During the council meeting, Mayor Teresa Onoda noted that the summer prior to the incident EBMUD had diverted enormous quantities of water down the creek bordering the trail, potentially weakening the banks at a time when they should have been drying out.
The EBMUD representative noted for its part that the original developer of the country club in the 1960s knew that the site was prone to landslides.
The American Bar Association article, "Landslide Liability Issues," published on its website notes that "in general, the potential liable parties could be property developers and their agents; neighboring property owners; city, county, or other governmental agencies; or prior owners of property."
When council member Dave Trotter asked what the agency's longterm plan was to reopen the trail, EBMUD Director of Engineering Xavier Irias, who also attended the meeting, answered that there would be no work plan to restore the trail until the parties involved in the lawsuit had a resolution.
But the town council did not accept the argument of a lawsuit to justify inaction. "You can take action!" said council member Kymberleigh Korpus, adding that she understood the restrictions of the lawsuit but that it did not mean that the attorneys would not be able to meet and decide what actions have to be taken. Kastama responded that the agency was opened to sitting down and discussing the situation, and that the East Bay Regional Park District that operates the trail should be included in the discussion.
The council members stressed that residents could no longer wait; that the longer EBMUD delayed repairs, the more it would cost. Korpus asked if EBMUD could pay upfront and have some financial arrangement later as part of the legal settlement. Kastama merely answered that this suggestion would be taken under consideration.
The council decided to send a letter to EBMUD requesting a work plan for restoring and reopening the trail. It also urged EBMUD to seek an intermediate solution to stabilize the hill and restore full water service to homes and fire hydrants. In the wake of the landslide, EBMUD set in place in the impacted area an alternative water delivery system that the residents find inadequate. An update on the situation will be added to the council's consent agenda monthly until there is a final resolution.
For background information see our article: http://lamorindaweekly.com/archive/issue1025/EBMUD-put-on-the-spot-for-failure-to-address-landslide-on-Augusta-Drive.html

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