The City of Wichita had a significant flooding problem. Of particular concern was the flooding problem in the Chadsworth residential community, which is located in northwest Wichita. In order to find a solution to the problem, the City conducted a comprehensive drainage study of the entire drainage basin. The study found that in order to alleviate the flooding problem in Chadsworth, the City had to create additional detention capacity on the 80-acre property located immediately upstream of Chadsworth (“upstream property”). Creating this additional detention capacity anywhere else would not adequately protect Chadsworth. But the solution to Chadsworth’s flooding problem was not that simple. The upstream property was privately owned. Furthermore, the property owner wanted to sell a portion of the property to a developer for commercial use. If the City was going to create additional detention capacity on the upstream property, it was going to have to obtain the property through eminent domain proceedings. That process could be both lengthy and costly for the City.
The owner of the upstream property had a problem of his own. Sale and development of his property would not be easy, since a significant portion of his property contained wetlands. Federal law prohibited filling wetlands, for development or any purpose, without first obtaining a Section 404 permit from the Corps of Engineers. Before the Corps will issue a Section 404 permit, it would require the permittee to avoid impacting the wetlands as much as possible and to mitigate any unavoidable impacts to the wetlands. The possibility of having to avoid a significant portion of the wetlands and to spend money mitigating any impacts to those wetlands were significant obstacles to development of the property.
The final problem was that the wetlands on the upstream property were deteriorating. Many years of development in communities upstream from the upstream property had adversely impacted the wetlands. Furthermore, if nothing was done to protect them, they would eventually be destroyed. Much of this development was outside of the Wichita city limits, so the City had a limited ability to control it. State and federal environmental agencies had tried and failed to protect the wetlands. A task force formed by these agencies years ago to protect the wetlands disbanded due to a lack of funds.
Spencer Fane was part of a multi-disciplinary team that saw a unique opportunity to use a public-private partnership to implement a creative solution to a complex problem. We knew that the partnership not only had to solve all three of the problems – flooding, development, and wetland protection – but that it had to make economic sense to all parties involved.
The solution to this complex problem involved the creation of a drainage improvement district. A drainage improvement district is a mechanism provided for under Kansas law that allows for cost sharing between public and private entities for the construction of public improvements. In this case, the public improvement would be a series of stormwater detention basins and a wetland preserve that would provide the City of Wichita with the additional detention capacity necessary to control current and future flooding in the Chadsworth community and areas downstream. The stormwater basins and wetland preserve would be constructed on a 54-acre portion of the upstream property that was to be donated to the City at no cost. The second component of the improvement district involved retail buildings, entertainment and restaurant establishments. The development would provide a significant portion of the funding for project construction through special assessment financing. In addition, the development generates tax revenue to fund the operation and maintenance of the mitigation sites and the detention basin.
The development impacts approximately 12 out of the 41 acres of wetlands that are on the project site. 29 acres are avoided entirely. In addition, over 44 acres of wetlands are mitigated on the upstream property through restoration, enhancement and creation. An additional 20 acres of wetlands will be created off site at the Cowskin Creek Water Reclamation Facility. In addition, the public will have access to portions of both wetland mitigation sites that will provide recreational and educational opportunities.
State and federal environmental agencies, as well as some environmental groups, were initially slow to support the project. They were not convinced that an improvement district was a legitimate mechanism for this situation and were opposed to any commercial development that would impact the wetlands. But the reality of the situation eventually convinced them that using an improvement district, including the financing from commercial development, was the only solution to the problem. First, the agencies eventually realized that the City could not afford to obtain the necessary additional detention capacity on its own. Purchasing the property upstream from Chadsworth and constructing the detention basins solely with tax dollars was cost prohibitive for the City. The agencies realized that the support of the private sector was required. Second, the agencies eventually realized that there was no other way to protect the wetlands. The status quo was not an option since upstream development continued to adversely impact the wetlands. Past efforts by state and federal agencies had failed. If nothing was done, the wetlands would eventually be destroyed. Again, the financial support of the private sector was necessary. As a result, the environmental agencies eventually realized that a public-private partnership, through the establishment of a drainage improvement district, was the only way that the flooding in Chadsworth could be alleviated and a significant portion of the wetlands could be preserved.