339 rebuttaltoresponsestomotiontofileamendedreportjohnrkrewson kmart combine

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

KMART CORPORATION,

PlaintiffCIV. ACT. NO. 1:11-CV-103-GHD-DAS

versus

THE KROGER CO., et al.

Defendants

REBUTTAL TO RESPONSES TO MOTION FOR LEAVE TO FILE AMENDEDREPORT OF JOHN R. KREWSON PURSUANT TO COURT ORDER

Plaintiff, Kmart Corporation, respectfully submits this Rebuttal to the Responses to its

Motion for Leave to File Amended Report of John R. Krewson Pursuant to Court Order filed by The

Kroger Co., E&A Southeast Limited Partnership, Fulton Improvements, LLC, and Kansas City

Southern Railway Company (collectively “Defendants”). On September 27, 2013, this Court ruled1

that it would consider an amendment of mathematical errors only to Mr. Krewson’s hydrology

report. In preparing the proposed amended report dated October 11, 2013 (“Amended Report”), Mr.

Krewson revised the inconsistent HEC-RAS flow data that appeared in his Initial Flooding

Evaluation of September 20, 2012 (“Initial Report”) by correcting the flow rate capacity from 3,702

cubic feet per second (cfs) to 5,202 cfs. Additionally, the Manning N values contained in Mr.

Krewson’s Initial Report were also corrected to reflect the conditions of the channel of Elam Creek

and the flooding depths occurring at the time of the loss to Kmart’s store in Corinth, Mississippi on

May 2, 2010.

Kroger, E&A, and Fulton filed a Joint Response (Rec. Doc. 305). KCSR filed a Joinder to the Joint1

Response of Kroger, E&A, and Fulton (Rec. Doc. 306).

Case: 1:11-cv-00103-GHD-DAS Doc #: 339 Filed: 11/18/13 1 of 22 PageID #: 6451

Mr. Krewson’s proposed Amended Report pertains to re-calculated runs using the same

scenarios described in his Initial Report and in his original modeling. The Amended Report does

not use the scenarios described in the first amended report dated July 23, 2013 and in those re-run

models.

Mr. Krewson’s proposed Amended Report complies with this Court’s September 27, 2013

Order directing Kmart to submit an amendment of the mathematical errors contained in Mr.

Krewson’s Initial Report. Moreover, Kmart has shown good cause why it should be permitted to

submit the Amended Report. Accordingly, Kmart should be granted leave to file the proposed

Amended Report.

I. Background

A. Mr. Krewson’s Initial Flooding Evaluation dated September 20, 2012.

At Mr. Krewson’s deposition on May 22, 2013, it was discovered for the first time by Kmart

and Mr. Krewson that the models relied on by Mr. Krewson in his Initial Report contained a mistake

that affected the conclusions in his report. In preparation of his Initial Report, Mr. Krewson prepared

HEC-RAS models for the Kmart and Kroger sites using as-built survey data and the water flows for

the area listed in Federal Emergency Management Agency’s 2009 Flood Insurance Study for Alcorn

Coutny, which was issued only one year before the May 2010 flood event. Mr. Krewson prepared2

three runs to determine the impact of the Kroger store on the flooding at Kmart’s store in Corinth

during the May 2, 2010 flood event. The first run was an idealized model that assumed a fully

maintained channel with no obstructions or encroachments in the floodway. In the second run, the3

See John R. Krewson’s Initial Flooding Evaluation (Sept. 20, 2012), attached as Exhibit “A”.2

Id. at 6.3

2


Kroger store was added to the floodway and a rise in the flood of approximately one foot was found

to occur. In the third run, to determine the impact of encroachments, obstructions, and overgrown4

banks, Mr. Krewson ran an idealized model that assumed a fully maintained channel with no

obstructions or encroachments in the floodway, which resulted in a two-foot drop in the flood

elevation at the Kmart site below the elevations found with the Kroger encroachment in the

floodway. 5

One factor that Mr. Krewson put into the HEC-RAS models was the peak discharge of Elam

Creek for the 100-year flood event. Mr. Krewson used the peak discharge of Elam Creek as 3,7026

cfs in his first and third HEC-RAS run data. In the second HEC-RAS run data, which showed the7

impact of the Kroger store on the flooding at Kmart, Mr. Krewson used the peak discharge figure

of 5,202 cfs, which represents the peak discharge at the intersection of Elam Creek and Turner Creek

for the 100-year flood event. The inconsistency in the peak discharge used in the first and third runs8

and the peak discharge used in the second run led Mr. Krewson to incorrectly conclude in his Initial

Report that the presence of the Kroger store caused a one-foot rise in the flooding at Kmart’s store

during the May 2, 2010 flood. The peak discharge of 5,202 cfs should have been used in all three9

Id.4

Id. at 6-7. 5

See Excerpts of the Deposition Transcript of John R. Krewson, attached as Exhibit “B,” at 116:12-6

15.

Id. at 117:3-5; see also Declaration of John R. Krewson, attached as Exhibit “C,” at ¶ 15.7

See Ex. B, Excerpts of the Deposition Transcript of John. R. Krewson at 116:12-24; see also Ex.8

C, Declaration of John R. Krewson, ¶ 15.

Id. at 116:18-117:18.9

3


HEC-RAS runs because it accounts for the convergence between Elam Creek and Turner Creek. 10

B. Mr. Krewson’s Amended Flooding Evaluation dated July 23, 2013.

After being made aware of the mistake as to the flow capacity at his deposition on May 22,

2013, Mr. Krewson re-ran his models to address the error and prepared an Amended Flooding

Evaluation dated July 23, 2013. Mr. Krewson found that, with the presence of the Kroger building11

only, there was a 1.1-foot rise in the flood compared to the benchmark model. With the presence12

of the Kmart building only, there was a rise of 1.0 feet relative to the benchmark model. With the13

Kmart and Kroger buildings combined, there was a rise of 0.9 feet relative to the benchmark model. 14

Thus when Mr. Krewson used the corrected figures, he found that the presence of the Kroger store

caused no significant difference in the rise of the flood at Kmart’s store. 15

But Mr. Krewson recognized in his July 23, 2013 Amended Flooding Evaluation that a

review of the flow and velocity data from the model show that the addition of the Kroger building

reduced the overbank width of flow at the building and increased the average velocity of the flow

of the water at the Kmart building. These conditions increased the exposure of the Kmart building16

See Ex. C, Declaration of John R. Krewson at ¶ 17.10

See John R. Krewson’s Amended Flooding Evaluation (Jul. 23, 2013), attached as Exhibit “D.”11

Id. at 9. 12

Id.13

Id.14

Id.15

Id.16

4


to flow water. 17

In other words, without the presence of the Kroger building, the exterior of the Kmart store

would only have been exposed to 1.0 foot of standing water; flowing water from the overbank would

only have barely approached the Kmart store. (Water at the edge of a waterway often is more

stationary, while the water closer to the center of the channel is flowing.) The addition of the Kroger

building caused the Kmart store to become exposed to the rapidly flowing water, even though the

water level did not rise signifcantly. Mr. Krewson states that it was reported that rapidly flowing18

water carrying debris along the back of the Kmart building resulted in damage to the rear door and

that this was the cause of the water intruding into the Kmart building. This model corroborates19

eyewitness testimony that debris was pushed through the Kmart doors during the flood by flowing

water.

In light of the inadvertent mistake contained in his Initial Report, Kmart sought leave to

submit Mr. Krewson’s amended report. On July 25, 2013, Kmart filed its Motion for Leave to file

the amended report of Mr. Krewson after Defendants objected to the submission of an amended

report. A hearing was held in front of Magistrate Judge Sanders on August 15, 2013. On August20

21, 2013, Magistrate Judge Sanders issued a ruling denying Kmart’s motion. On September 4,21

Id.17

Id.18

Id.19

See Rec. Doc. 176.20


5


2013, Kmart filed Objections to the Magistrate Judge’s Ruling. 22

C. Mr. Krewson’s Amended Flooding Evaluation dated October 11, 2013.

On September 27, 2013, after considering Kmart’s Objections, this Court ruled that it would

consider an amendment of mathematical errors only for Mr. Krewson’s hydrology report. In23

preparing the proposed Amended Report in response to the Court’s Order, which was submitted on

October 11, 2013, Mr. Krewson revised the HEC-RAS flow data and the flow data discrepancy24

that appeared in his Initial Report which was corrected from 3,702 cubic feet per second (cfs) to

5,202 cfs. Additionally, the Manning N values contained in Mr. Krewson’s Initial Report were also25

corrected to reflect the conditions of the channel of Elam Creek and the flooding depths occurring

at the time of the loss to Kmart’s store in Corinth, Mississippi on May 2, 2010. Mr. Krewson’s26

proposed Amended Report pertains to re-calculated runs using the same scenarios described in his

Initial Report dated September 20, 2013 and in his original modeling. The proposed Amended

Report does not use the scenarios described in the first amended report dated July 23, 2013 and in

that re-run modeling.

Mr. Krewson concludes in his proposed Amended Report that “A review of the flow and

velocity data from the model show that the addition of the Kroger to the Kmart building reduced the

overbank width of flow at the building by 193 feet and increased the average velocity of flow at the



See John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013), attached as Exhibit24

“E.”

Id. at 8; see also Ex. C, Declaration of John R. Krewson at ¶ 17.25

Id.; see also Ex. C, Declaration of John R. Krewson at ¶ 18.26

6


building by 16 percent.” Mr. Krewson also opines that “[p]rior to the addition of the Kroger27

building the Kmart building was essentially outside the active overbank flow of water.” 28

Additionally, Mr. Krewson concludes that “[w]hen the Kroger building was added, the overbank

flood overlapped the combined building by 129 feet, increasing the exposure of the building to

flowing water.” Mr. Krewson’s opinions are entirely consistent with eyewitness testimony that29

rapidly flowing water carrying debris along the back of the Kmart building resulted in damage to the

rear door and that this was the cause of the water intruding into the Kmart building.

II. Law and Argument

A. Oral argument is not necessary.

Kmart does not agree with Defendants that oral argument on the instant motion is necessary.

The parties have engaged in extensive motion practice and participated in oral argument on this

issue. After considering the arguments made by the parties regarding whether Kmart should be

granted leave to file an amended report in light of the errors in Mr. Krewson’s Initial Report, this

Court issued its September 27, 2013 Order that explicitly requested that Kmart submit a correction

of the mathematical errors in Mr. Krewson’s Initial Report for this Court’s consideration. Thus the

only issue remaining before this Court is whether Mr. Krewson’s Amended Report, which corrects

the mathematical errors contained in his Initial Report, should be allowed. Kmart believes that its

motion for leave can be decided on the briefs and without the necessity of oral argument.

See Ex. E, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 8-9.27

Id. at 9.28

Id.29

7


B. Mr. Krewson’s October 11, 2013 Amended Report corrects the mathematicalerrors in his Initial Report in compliance with this Court’s September 27, 2013Order.

1. Mr. Krewson’s Amended Report corrects the flood flow rates ascontemplated by this Court’s Order.

Inexplicably, Defendants suggest that Mr. Krewson’s correction of the flood flow rates in the

Amended Report is not a mathematical correction as required by this Court’s Order. But the Court’s

Order contemplates exactly that — a correction of the flood flow rates used by Mr. Krewson in his

Initial Report. Kmart and Mr. Krewson discovered at his deposition that Mr. Krewson used

inconsistent flow rates in his HEC-RAS runs for his Initial Report. Following that discovery, Kmart

filed for leave to correct the error and amend Mr. Krewson’s report. The parties then engaged in

extensive motion practice regarding the inconsistency as to the flood flow rates and whether Mr.

Krewson should be permitted to correct that mistake and issue an amended report. Kmart believes

that this Court, through its Order, expected that Kmart would correct the flood flow rates in the

HEC-RAS models, which Kmart has done. Defendants can offer no other possible interpretation of

this Court’s Order.

2. Mr. Krewson’s use of inconsistent flow rates in his Initial Report was inerror and was not a purposeful decision on the part of Mr. Krewson.

Kmart vehemently denies Defendants’ unfounded allegation that the inconsistency in the

flood flow rates in the Initial Report was not a mistake on the part of Mr. Krewson. Neither Kmart

nor Mr. Krewson became aware of the error until it was pointed out to Mr. Krewson by Defendants

at Mr. Krewson’s deposition. The outrageous claim by Defendants that Mr. Krewson purposefully30

made an error in his HEC-RAS runs is both appalling and baseless.

See Ex. C, Declaration of John R. Krewson, at ¶14.30

8


When Mr. Krewson prepared the HEC-RAS models for the Initial Report, he prepared

different flow files. In one flow file, he used 3,702 cfs as the flow rate. However, after31 32

independently checking the validity of the flow rate, he discovered that it was incorrect because the

subject drainage area was larger than what was represented by the 3,702 cfs flow rate. He kept the33

separate steady flow spreadsheet containing the 3,702 cfs data in the overall model for use in the

event the flow rate in Elam Creek, independent of the additional flow of Turner Creek, proved useful

at some point in evaluating the site. According to Mr. Krewson, it is not unusual to maintain a34

number of different values and configurations in the HEC-RAS models. Indeed, the ability to35

model and compare alternate flow and geometric regimes is one of the strengths of the HEC-RAS

program. 36

After discovering that the 3,702 flow rate value was incorrect, he created another flow file

using 5,202 cfs as the flow rate value. He performed independent calculations to confirm that37

5,202 cfs flow value was the correct value to represent the site. When he ran the models, however,38

he inadvertently failed to change the 3,702 cfs flow rate value for each of the three runs to the 5,202

See id. at ¶19.31

Id.32

Id.33

Id.34

Id.35

Id.36

See id. at ¶20.37

Id.38

9


cfs flow rate value. The use of inconsistent flow rates in the initial runs was in error and was not39

a conscious decision on Mr. Krewson’s part. Defendants’ arguments to the contrary are totally40

without merit and inconsistent with the arguments that they previously made to oppose Kmart’s

motion for leave and to exclude Mr. Krewson from testifying as an expert witness.

3. Mr. Krewson had to adjust the Manning N values for the AmendedReport when he corrected the flood flow rates to maintain the reliabilityof the model.

Defendants take issue with Mr. Krewson’s adjustment of the Manning N values and argue

that this adjustment is not a mathematical correction and that Kmart’s motion for leave should,

therefore, be denied. But Mr. Krewson’s adjustment of the Manning N values became necessary

when he corrected the flow rates for the three HEC-RAS runs to ensure that the model was reliable.

Defendants’ argument ignores that when running HEC-RAS models, if one value is changed, other

values might also need to change to maintain the validity of the model.

When Mr. Krewson prepared the HEC-RAS models using the incorrect 3,702 cfs flow rate

value, he used a Manning N value of 0.025 to represent a well-maintained Elam Creek Channel and

a Manning N value of 0.04 to represent an overgrown Elam Creek channel. These Manning N41

values were selected based on the incorrect 3,702 cfs flow rate value. With the 3,702 flow rate42

value, these Manning N values allowed Mr. Krewson to calibrate the model and provided a flooding

Id.39

Id.40

See id. at ¶22.41

Id.42

10


depth comparable to the 100-year flood in the FEMA’s 2009 Flood Insurance Study. He selected43

the Manning N values to be able to compare the effect of an overgrown Elam Creek channel and the

effect of a well-maintained Elam Creek channel on the flooding at Kmart’s store. 44

When Mr. Krewson corrected the flow rate values to 5,202 cfs for the Amended Report, the

Manning N values that were used for the initial report ceased to be representative because they were

developed to correlate with the lower flow rate of 3,702 cfs. Thus, he had to re-calibrate the model45

by adjusting the Manning N values based on the higher flow rate value of 5,202 cfs. He used a46

Manning N value of 0.04 to represent a well-maintained Elam Creek channel and a Manning N value

of 0.14 to represent an overgrown Elam Creek channel. These Manning N values allowed him to47

calibrate the model and provided a flooding depth comparable to the 100-year flood in the FEMA’s

2009 Flood Insurance Study based on the higher flow rate value.48

The adjustment of the Manning N values were part of the corrections to the flood flow rates.

Mr. Krewson had to revise the values to correlate with the higher flow rate of 5,202 cfs to present

a representative HEC-RAS model. The corrections to the flood flow rates and Manning N values

comply with this Court’s Order requesting an amendment to the mathematical errors in Mr.

Krewson’s Initial Report and Kmart’s motion for leave should therefore be granted.

Id.43

Id.44

See id. at ¶23.45

Id.46

Id.47

Id.48

11


4. The conclusions in Mr. Krewson’s Amended Report verify Kmart’sallegations against Defendants with respect to the Kroger store.

The Defendants argue that Kmart is using the Court’s Order as a way to author a new report

and draw new conclusions. But Kmart merely followed this Court’s directive to “submit to the Court

a proposed amendment of only mathematical errors in Krewson’s report.” In accordance with this49

Court’s Order, Mr. Krewson corrected the flow rate to 5,202 cfs and re-calculated the HEC-RAS

runs using the same scenarios described in his Initial Report. When Mr. Krewson revised the flood

flow rates, the results of the HEC-RAS models were, naturally, different from the results in the initial

evaluation. After correcting the flow rate and calibrating the model by adjusting the Manning N

values to reflect the higher flow rate, Mr. Krewson concluded that “a review of the flow and velocity

data from the model show that the addition of the Kroger to the Kmart building reduced the overbank

width of flow at the building by 193 feet and increased the average velocity of flow at the building

by 16 percent.” 50

Mr. Krewson’s conclusions do not, however, present a new claim against Defendants.

Indeed, from the outset of this litigation, Kmart has alleged that the location of the Kroger store

“altered the water flow from standing water to a rushing, forceful water flow.” Mr. Krewson began51

amending his report to determine, using corrected figures, whether the Kroger store contributed to

the flooding at the Kmart store. In the process, Mr. Krewson confirmed by reviewing the flow and

velocity data from his models that the Kroger store reduced the overbank width of flow and

See Rec. Doc. 243. 49


See Rec. Doc. 1 at ¶ 16.51

12


increased the average velocity of the flow of the water at Kmart’s building, which increased the

exposure of the Kmart building to flow water. The addition of the Kroger building caused the52

Kmart store to become exposed to the rapidly flowing water. The conclusions in Mr. Krewson’s53

Amended Report, therefore, do not constitute a new theory of causation or a new claim by Kmart,

but merely correct data input and output, which also corroborates eyewitness testimony and the

allegations already contained in Kmart’s Complaint.

Indeed, Mr. Krewson’s findings and conclusions are consistent with the applicable law,

including both federal and state law as to floodways and floodplains. For example, the Flood

Damage Prevention Ordinance for the City of Corinth provides that “The flood hazards of City of

Corinth are subject to period inundation which results in loss of life and property.” Additionally,

the Ordinance provides that:

These flood losses are caused by the cumulative effect of obstructions in floodplainscausing increases in flood heights and velocities, and by the occupancy in floodhazard areas by uses vulnerable to floods or hazards to other lands which areinadequately elevated, flood-proofed, or otherwise unprotected from flood damages.54

Additionally, Section 4.1 of the FEMA 2009 Flood Insurance Study for Alcorn County,

Mississippi provides that “Encroachments on floodplains, such as structures and fill, reduces the

flood carrying capacity, increases the flood heights and velocities and increases flood hazards in

areas beyond the encroachment itself.” In the proposed Amended Report, Mr. Krewson concludes55


Id. 53

See Flood Damage Prevention Ordinance (Corinth 00006), attached as Exhibit “F.”54

See 2009 Flood Insurance Study for Alcorn County, Mississippi at 8, attached as Exhibit “G.”55

13


that the presence of the Kroger store reduced the flooding width resulting increased velocities as

anticipated by FEMA, increasing the flooding and impact on the Kmart store. As both the federal56

and state laws governing floodplains anticipated, encroachments such as the Kroger building in the

floodplain could increase the height or velocities of flood waters.

It should be of no surprise to Defendants that when Mr. Krewson corrected the flood flow

rates, the results and conclusions of his evaluation changed. But these new conclusions do not

present new claims or allegations against Defendants. Rather, the proposed Amended Report

confirms Kmart’s claims that the location of the Kroger store contributed to the flooding at Kmart’s

store. Kmart has complied with this Court’s Order and should be granted leave to file the proposed

Amended Report of Mr. Krewson.

C. Mr. Krewson’s October 11, 2013 Amended Report is timely.

Defendants argue that Mr. Krewson’s report is untimely even though this Court issued an

order directing Kmart to submit a revision of Mr. Krewson’s report that corrected the mathematical

errors in his Initial Report. The parties have already fully briefed the issue of whether or not Mr.

Krewson should be permitted to correct the errors in his Initial Report. After reviewing the briefs,

this Court issued an order stating that it would consider an amendment of Mr. Krewson’s Initial

Report and asked that Kmart provide that amendment by October 11, 2013. Kmart filed the instant

motion for leave with Mr. Krewson’s report correcting the mathematical errors in his Initial Report

on October 11, 2013. Defendants, therefore, cannot argue that the Amended Report is untimely

because Kmart complied with this Court’s order and timely submitted the Amended Report on

October 11, 2013.

See Ex. D, John R. Krewson’s second Amended Flooding Evaluation (Oct. 11, 2013) at 9.56

14


Moreover, while Kmart submitted the Amended Report of Mr. Krewson after the plaintiff’s

discovery deadline, the Amended Report was submitted in accordance with this Court’s Order and

with Rules 26(a)(2) and (e) of the Federal Rules of Civil Procedure. Rule 26(a)(2) provides that each

party must supplement its expert disclosures when required under Rule 26(e). Rule 26(e) provides

that:

For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s dutyto supplement extends both to information included in the report and to informationgiven during the expert’s deposition. Any additions or changes to this informationmust be disclosed by the time the party’s pre-trial disclosures under Rule 26(a)(3) aredue.

Here, pre-trial disclosures are not due until approximately one week before the pre-trial conference,

which is scheduled to take place on February 3, 2014. Thus, pursuant to Federal Rule of Civil57

Procedure 26 and this Court’s Order, Kmart has timely filed the Amended Report of Mr. Krewson.

D. Kmart has shown good cause for allowing the amendment of Mr. Krewson’sInitial Report.

Federal Rule of Civil Procedure 16(b) allows a scheduling order to be modified for good

cause. To determine good cause, courts look at: (1) the explanation for the failure to meet the

deadline; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and

(4) the availability of a continuance to cure such prejudice. Kmart has shown good cause why58

Kmart should be permitted to amend Mr. Krewson’s report.

Kmart has adequately explained the reason for its failure to meet the expert designation

deadline. Neither Kmart nor Mr. Krewson learned of the error in Mr. Krewson’s Initial Report until

See Notice of Final Pre-Trial Conference, Rec. Doc. 63.57

Reliance Ins. Co. v. La. Land & Exploration Co., 110 F. 3d 253, 257 (5th Cir. 1997). 58

15


Mr. Krewson’s deposition, by which time Kmart’s expert deadline had already expired. The peak

discharge figure used in each of the three runs was merely one of numerous variables contained in

HEC-RAS run spreadsheets. Moreover, the results of the initial HEC-RAS runs did not raise any

suspicion regarding the accuracy of the runs because the finding that the Kroger store caused a one-

foot rise in the flood level was consistent with FEMA’s determination that the Kroger store was in

a floodway, which lent credibility to Mr. Krewson’s findings. Thus, there was no need for Mr.

Krewson to re-examine or re-calculate his data between the time his report was voluntarily disclosed

and the time he was deposed. Upon learning of the error at his deposition, Mr. Krewson immediately

set to addressing the error and correcting his models to amend the Initial Report.

Kmart has also shown that an amendment to the Initial Report is vitally important to Kmart’s

case. As recognized by Magistrate Judge Sanders, the error in the Initial Report was “serious and

substantial” and “substantially undermines” Mr. Krewson’s report. Further, the magistrate judge59 60

found that the “error meant the difference between a reasoned theory of liability and no viable theory

of liability relating to the alleged intrusion of the Kroger building into the floodway.” If Kmart is61

not permitted leave to file the proposed Amended Report, Kmart will be forced to rely on an

inconsistent report even though the proposed Amended Report supports Kmart’s claim that the

Kroger store’s presence in the floodway contributed to Kmart’s damages. Kmart should not be

bound to provide incorrect data to the jury and should not be precluded from providing correct data

to the jury when the error has been discovered and corrected months in advance of trial. The United

See Rec. Doc. 213, Order Denying Motion at 4.59

Id. at 1.60

Id. at 5. 61

16


States Fifth Circuit Court of Appeals has recognized that “[t]he goal of grand jury proceedings, of

criminal trials, and of civil trials is to resolve a dispute by gathering the facts and arriving at the

truth.” Further, “virtually every judicial inquiry begins with the goal of developing the facts. The62

basis of justice is the truth and our system frowns upon impediments to ascertaining the truth.” 63

Therefore, the importance of the Amended Report to Kmart’s prosecution of the case requires that

Kmart be granted leave to file the report.

In Wal-Mart Stores, Inc. v. Qore, Inc., a decision rendered by this Court, Chief Judge Mills64

found, “This Court is no position to hold that experts can never make mistakes. When a

mistake is discovered and fixed it advances the cause of justice.” In Qore, the plaintiff’s expert65

initially included the value of a fuel island canopy and store tank in his appraisal report and later

removed them. The defendant argued that this error, along with other alleged problems associated66

with the plaintiff’s expert’s report, rendered the expert’s testimony unreliable and inadmissible. 67

While this Court acknowledged those problems and found that the defendant’s counsel would

certainly “illuminate these for the jury,” this Court found that the problems do not rise to the level68

Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989).62

In re Dinnan, 661 F.2d 426, 427 (5th Cir. 1981). 63

See 2009 WL 224908 (N.D. Miss. Jan. 28, 2009) (Mills, J.) (emphasis added).64

Id. at *4.65

Id.66

Id.67

Id.68

17


to prevent the expert from testifying. Here, Mr. Krewson’s Amended Report advances the cause of

justice.

Kmart has shown that the Defendants would not be seriously prejudiced if Kmart is allowed

to amend the Initial Report. The Amended Report does not assert any new theory of causation

against any defendant. Rather, Mr. Krewson’s Amended Report corrects a mathematical error in his

HEC-RAS runs. Once Mr. Krewson input the corrected figures, the output changed, such as water

depth and velocity of water. The theory that the Defendants’ presence in the floodway and failure

to mitigate that presence, however, has not changed. Further, Kmart is not seeking to amend the

report simply because Mr. Krewson’s deposition did not go well, as suggested by the Defendants.

The deposition revealed a mathematical error that, once brought to his attention, Mr. Krewson set

out to correct. The Amended Report merely confirms what has been Kmart’s theory of causation

all along — that the presence of the Kroger store in the floodway contributed to the flood damage

at Kmart’s store.

Moreover, Defendants’ experts would have to re-run their models regardless of whether

Kmart is permitted to amend Mr. Krewson’s report because their reports also rely on incorrect

figures. Thus, the conclusions in those reports are unreliable. Notably, Defendants’ experts, though

they criticize Mr. Krewson’s model, do not themselves know the correct peak discharge figure to

apply to determine the potential impact of the Kroger store. Mr. James Monohan, the hydrological

expert hired by Fulton, Kroger, and E&A, testified that he did not know the correct peak discharge

flow rate because he did not perform any modeling:

Q: And you say that the 100-year flow rate, 5202 cubic feet per secondis inflated. Right?

18


A: I believe I did say that.

Q: Okay. And you say that on page 6?

A: Okay. Yes.

Q: But that’s not correct. Right?

A: Well, it’s inflated above the 100-year flood value for the other tworuns.

Q: Well, but it’s not correct that 5202 cubic feet per second is aninflated 100-year flow rate. Right?

A: I have to ask you to restate that. I’m sorry.

Q: 5202 cubic feet per second is the correct flow rate for the 100-yearstorm at Elam Creek, where the Kmart-Kroger site, near theKmart-Kroger site. Right?

A: No. That’s not my position at all.

Q: That’s not your position?

A: No.

Q: You disagree with Blake Mendrop of Kansas City SouthernRailway Company?

Q: Okay. Mr. Mendrop testified yesterday and also said in his reportthat 4900 cubic feet per second is the correct flow rate for that area. Do you disagree with Mr. Mendrop?

A: I don’t agree or disagree. I don’t know. I personally don’t knowwhat the correct flow rate is because I haven’t done any modeling.

Q: So you’re criticizing Mr. Krewson for using inconsistent flowrates, but you, yourself, don’t know which flow rate is the rightone?

A: No, I don’t know which one is the right one. I don’t know whichone best matches what actually happened during the flood event of

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May 2nd, 2010. 69

Importantly, none of the experts hired by the remaining defendants actually performed any

modeling to determine the impact of the Kroger store on the flooding at the Kmart store. Mr.

Monohan admitted as much in his deposition. Although KCSR’s expert, Blake Mendrop,70

performed modeling to determine the impact of a debris field under the KCSR bridge on flooding

at Kmart, he did not model the impact of the Kroger store. Defendants make much hay about the

amount of time spent by Mr. Krewson to prepare the Amended Report, but ignore that the amount

of time largely included Mr. Krewson’s work in performing model runs to correctly measure the

impact of the Kroger store on the flooding at the Kmart store. It will not take the Defendants’

experts near the amount of time it took Mr. Krewson to prepare the models because the Defendants’

experts have not, and likely will not, perform any of their own modeling with relation to the impact

of the Kroger store.

Additionally, there is no reason that the Defendants would have to seek out, hire, and pay

new experts as a result of Mr. Krewson’s Amended Report. As Defendants have already designated

hydrological experts in this matter, the case of Reliance v. Louisiana Land & Exploration Co. cited71

by Defendants is distinguishable. Unlike the defendants in Reliance, the defendants here have

retained experts. There is no need for the Defendants to incur costs to retain new experts. The72

Defendants’ designated experts are already fully aware of the issues in this matter and of the errors

See Excerpts to Deposition of James Monohan, attached as Exhibit “H,” at 77:19 - 79:10.69

See id.70

110 F. 3d 253 (5th Cir. 1997). 71

Id.72

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in Mr. Krewson’s Initial Report. It will not take the designated experts near the amount of time it

might take new experts to review and respond to Mr. Krewson’s Amended Report.

Kmart also does not believe that the Defendants should incur significant costs to respond to

Mr. Krewson’s report. Several of the Defendants have retained experts jointly and are presumably

splitting the costs of those experts. Further, in an effort to reduce costs, Kmart has offered to permit

the defendants to depose Mr. Krewson at a location convenient to the Defendants and at Kmart’s

expense. Kmart is willing to schedule Mr. Krewson’s deposition at the same time the depositions

for the Defendants’ engineering experts are scheduled to minimize the costs associated with those

depositions. Defendants, therefore, would not be seriously prejudiced if Kmart were allowed to

amend Mr. Krewson’s report.

Finally, this Court acknowledged in its September 27, 2013 Order that if Kmart is granted

leave to file the Amended Report of Mr. Krewson, it may become necessary to continue pre-trial and

trial deadlines. Trial is scheduled to commence on February 24, 2014. The West v. Drury case cited

by Defendants for the proposition that while a continuance might cure the situation, when there is

no compelling explanation for the failure to timely file the report and there is potential for prejudice,

a continuance should not be granted is distinguishable. In Drury, the court held that the plaintiff73

provided “no compelling reason as to why he failed to provide these opinions before the plaintiff’s

expert deadline” and declined to allow the plaintiff to supplement its expert’s testimony. Here,74

Kmart has provided a compelling explanation for the failure to timely file the Amended Report and

has shown that the Defendants would not be seriously prejudiced if the Amended Report is allowed.

2008 WL 5169682, *3 (N.D. Miss. 12/9/08). 73

Id. at *3. 74

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A continuance would cure any potential prejudice and should be granted if the parties are otherwise

unable to meet the case deadlines.

III. Conclusion

For the foregoing reasons, Kmart respectfully requests that this Court grant its Motion for

Leave to File the Amended Report of John R. Krewson pursuant to this Court’s September 27, 2013

order.

This the 18th day of November, 2013.

/s/ Ryan O. Luminais____________________________________JAMES M. GARNER (La. Bar. No. 19589)JOHN T. BALHOFF, II (La. Bar. No. 24288)RYAN O. LUMINAIS (Miss. Bar. No. 101871)SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.909 Poydras Street, Twenty-eighth FloorNew Orleans, Louisiana 70112Telephone: (504) 299-2100Facsimile: (504) 299-2300ATTORNEYS FOR KMART CORPORATION

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been served on all known counsel

of record with the Clerk of Court using the CM/ECF system which will automatically send-email

notification to all known counsel of record, this 18 day of November, 2013.th

/s/ Ryan O. Luminais_________________________________________RYAN O. LUMINAIS

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Case: 1:11-cv-00103-GHD-DAS Doc #: 339-1 Filed: 11/18/13 1 of 23 PageID #: 6473

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Rectangular Exhibit Stamp


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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

KMART CORPORATION,

PlaintiffCIV. ACT. NO. 1:11-CV-103-GHD-DAS

versus

THE KROGER CO., et al.

Defendants

DECLARATION OF JOHN R. KREWSON

STATE OF GEORGIA

COUNTY OF COBB

In accordance with 28 U.S.C. § 1746, I, John R. Krewson, state the following:

1. My name is John R. Krewson.

2. I obtained a Bachelor’s of Science degree in Civil Engineering from the University

of Tennessee at Knoxville in 1971.

3. I am a registered professional engineer with thirty-five years of experience in the

public and private sector in planning, project management, engineering design, and

loss evaluation.

4. I have prepared the designs and provided construction management for over one

thousand engineering projects, including comprehensive high schools, middle and

elementary schools, hospital additions, churches, multifamily and single family

residential developments, and commercial and industrial projects.

5. I am licensed as a professional engineer in the States of Georgia (PE# 10228) and

Florida (PE#68675).


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6. I have civil engineering design and construction experience in grading, storm

drainage, detention and hydrology, street and highways, parking lots, sanitary sewers,

water systems, dam and reservoir designs, and erosion control.

7. I have structural design and construction experience utilizing steel, concrete, and

wood for both single and multi-level structures, including pre-engineered buildings,

foundations, slabs, and retaining walls.

8. I have extensive experience with hydrology related software and programs, including

AutoCad Land Desk Top, AutoCAD Civil 3D, and Hydraflow engineering design

software; U.S. Army Corps of Engineers HEC-1, HEC-2, HEC-RAS, Check-RAS

software; and RISA3D structural design software.

9. I am also experienced in the fields of constructions and land surveying.

10. I have been retained by Kmart Corporation to act as a expert witness in this case as

to the cause and/or contributing factors of the flood and/or water damage to the

Kmart Store #4883 located at 118 Highway 72 West, Corinth, Mississippi.

11. My original expert report in this matter was submitted to counsel for Kmart on or

around September 20, 2012. My understanding is that it was then submitted to

counsel for the defendants on or around October 4, 2012.

12. Additionally, on April 2013, I submitted the HEC-RAS data that I used to prepare my

original report to Kmart’s counsel in responding to a written discovery request from

one of the defendants.

13. On May 22, 2013, I was deposed by counsel for the defendants in Jackson,

Mississippi.

2


14. During that deposition, I discovered for the first time that my report and findings

contained a mistake that affected the finding and conclusions contained within my

original report dated September 20, 2012.

15. Specifically, my HEC-RAS run data, which showed the impact of the Kroger

building on the flooding at the Kmart building, incorrectly compared two peak

discharges. In my first and third HEC-RAS run data, I incorrectly used the peak

discharge of 3,702 cubic feet per second (cfs). This figure represents the peak

discharge of Elam Creek for the 100-year flood event as contained in the Federal

Emergency Management Agency’s 2009 Flood Insurance Study for Alcorn County.

In my second HEC-RAS run data, I used the correct peak discharge figure of 5,202

cfs, which represents the peak discharge at the intersection of Elam Creek and Turner

Creek for the 100-year flood event according to FEMA’s 2009 Flood Insurance Study

for Alcorn County.

16. This led me to mistakenly originally conclude that the presence of the Kroger

building caused a one foot rise in the flooding at Kmart’s store on May 2, 2010.

17. In re-running the models for my latest Amended Flooding Evaluation dated October

11, 2013, I corrected the flow-rate of Elam Creek from 3,702 cubic feet per second

to 5,202 cubic feet per second, which is the correct flow-rate to use in the modeling

because it accounts for the convergence between Elam Creek and Turner Creek.

18. Additionally, in my latest Amended Flooding Evaluation dated October 11, 2013, the

Manning’s N values contained in my original Flooding Evaluation dated September

20, 2012 were corrected to reflect the conditions of the channel of Elam Creek and

3


the flooding depths occurring at the time of the loss to Kmart’s store in Corinth,

Mississippi on May 2, 2010.

19. When I prepared the HEC-RAS models for my original expert report, I prepared

different flow files. In one flow file, I used 3,702 cfs as the flow rate. However, after

independently checking the validity of the flow rate, I discovered that it was incorrect

because the subject drainage area was larger than what was represented by the 3,702

cfs flow rate. I kept the separate steady flow spreadsheet containing the 3,702 cfs

data in the overall model for use in the event the flow rate in Elam Creek,

independent of the additional flow of Turner Creek, proved useful at some point in

evaluating the site. It is not unusual to maintain a number of different values and

configurations in the HEC-RAS models. The ability to model and compare alternate

flow and geometric regimes is one of the strengths of the HEC-RAS program.

20. After discovering that the 3,702 flow rate value was incorrect, I created another flow

file using 5,202 cfs as the flow rate value. I performed independent calculations to

confirm that 5,202 cfs flow value was the correct value to represent the site.

21. When I ran the models, however, I inadvertently failed to change the 3,702 cfs flow

rate value for each of the three runs to the 5,202 cfs flow rate value. The use of

inconsistent flow rates in the initial runs was in error and was not a conscious

decision on my part.

22. When I prepared the HEC-RAS models using the incorrect 3,702 cfs flow rate value,

I used a Manning N value of 0.025 to represent a well-maintained Elam Creek

Channel and a Manning N value of 0.04 to represent an overgrown Elam Creek

4


channel. These Manning N values were selected based on the incorrect 3,702 cfs

flow rate value. With the 3,702 flow rate value, these Manning N values allowed me

to calibrate the model and provided a flooding depth comparable to the 100-year

flood in the Federal Emergency Management’s Agency 2009 Flood Insurance Study.

I selected the Manning N values to be able to compare the effect of an overgrown

Elam Creek channel and the effect of a well-maintained Elam Creek channel on the

flooding at Kmart’s store.

23. When I corrected the flow rate values to 5,202 cfs for the amended report, the

Manning N values that were used for the initial report ceased to be representative

because they were developed to correlate with the lower flow rate of 3,702 cfs. Thus,

I had to re-calibrate the model by adjusting the Manning N values based on the higher

flow rate value of 5,202 cfs. I used a Manning N value of 0.04 to represent a well-

maintained Elam Creek channel and o Manning N value of 0.14 to represent an

overgrown Elam Creek channel. These Manning N values allowed me to calibrate

the model and provided a flooding depth comparable to the 100-year flood in the

Federal Emergency Management’s Agency 2009 Flood Insurance Study based on the

higher flow rate value.

24. In my latest Amended Flooding Evaluation dated October 11, 2013, I made the

following conclusions:

(a) The draining basin upstream from the Kmart site received rainfall that

appears to approximate the 1-percent annual chance rainfall event (100 year

storm). Using the FEMA 1-percent annual chance (100 year) flow data, and

5


using a model with an overgrown channel similar to that existing at the time

of the flood, flooding in Elam Creek exceeds the FEMA 1-percent annual

chance (100 year flood) elevation and approaches the actual depths of

flooding at the building reported. The presence of the Kroger store increased

the impact and depth of flooding during the flood event of May 2, 2010 and

caused damage to Kmart.

(b) The presence of the Kroger in the FEMA floodway reduced the flooding

width resulting in increased velocities as anticipated by FEMA, increasing the

depth of flooding and impact on the Kmart store in Corinth, Mississippi.

(c) The lack of maintenance of the creek channel, coupled with obstructions and

debris in the channel increased the depth of flooding and caused increased

damage to the Kmart during the flood event of May 2, 2010.

(d) Filling in the low area behind the Kmart and Kroger stores reduced the flood

storage volume and likely increased the depth of flooding damage to Kmart.

(e) Despite the location of the building in a large and documented floodplain and

floodway, no actions such as caulking and waterproofing the exterior walls,

or construction of a protective membrane around the building were done to

protect the building.

(f) In my opinion, had the creek channel been maintained, had building

construction in FEMA’s regulatory floodway been restricted, had the area

behind the Kroger and Kmart stores not been filled, and had the building been

protected by waterpoofing, the Kmart store would not have flooded, or had

6


Amended Flooding Evaluation

Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 Prepared For: Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C.

909 Poydras Street, Twenty-eighth Floor 0112 New Orleans, Louisiana 70112

EFI Global Job No: 98340-08794

July 23, 2013

Prepared By:

EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097


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3039 Premiere Parkway

Suite 700

Duluth, GA 30097

Tel: 770-925-9600

Tel: 800-245-9601

Fax: 770-925-9649

www.efiglobal.com

July 23, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Re: Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794 Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model. The revised HEC-RAS model herein is expanded to review additional flooding scenarios at the site. This amendment also discusses and utilizes information concerning the Kmart Store # 4883 site that was not available for review at the time the September 20, 2012 report was submitted. The additional information includes the original construction plans for the site, debris at the railroad bridge, and the LOMR, LOMA, and Elevation Certificates approved at the site. For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street.


Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013

Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking. The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat. Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings. Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain. The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above.



Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010. By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors, lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staff’s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Photographs taken in the Kmart store show a water depth of approximately 1.5 feet. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores. The flooding in 2010 is very similar to flooding events that occurred on October 13, 2001 and November 18, 2001 as outlined in a report prepared by the engineering firm of Reaves Sweeney Marcom of Memphis, Tenn. Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth. Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount.



FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek. According to the FIRM panel, approximately one half of the Kroger store is located in both the floodplain and also in the area FEMA has designated as being the regulatory floodway. The Kmart store is located in the floodplain only. According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities. The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states:



“Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1-percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.” Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked. The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek. The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program. A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the



elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time. The derivation of the floodplain and floodway data shown on the plans is unknown. Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”. The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities. The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found. Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001. Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site. Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection:

Southeast of the Kmart near Highway 72, at the point where Kansas Southern Railroad’s north-south railroad line crosses Elam Creek on a timber bridge, a considerable debris field was noted upstream of the bridge. The debris blocked approximately the lower quarter of the bridge opening. Mr. David Huwe, the Director of Community Development and Planning for the City of Corinth stated during an interview in his office that the railroad had a poor



record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event. A picture of the flooded railroad bridge not available at the time of our initial report shows the bridge to be completely underwater. In the picture, there is no debris field floating upstream of the bridge. For the debris found behind the bridge at the time of our inspection to have resulted from debris floating downstream during the storm, there would have be a considerable amount of floating debris trapped behind the bridge when the water level dropped. The lack of a floating debris field in the picture indicates that the debris found behind the bridge after the flood were present prior to the flooding. Since they did not rise and float off during the flood, they apparently were present for a long enough time to become embedded behind the bridge. Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge.

A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.

The creek channel was badly overgrown with vegetation and poorly maintained. Near the spur railroad bridge noted above, utility and sanitary sewer pipes crossing the channel were apparently abandoned in place, obstructing the channel.

The approximately 4.5 acre grassed field immediately behind the Kmart and Kroger building was originally a number of feet lower in elevation. According to Mr. Huwe with the City of Corinth, the city filled the area over time with excess earth material from various projects around the city. Evidence that dumping of excess fill was still underway was found at the time of the initial inspection of the area (Figure 10). Filling the area reduced the flood storage and flood protection for the Kmart and Kroger building.

The report on the 2001 flooding by Reaves Sweeney Marcom noted above discussed the Elam Creek channel blockage, overgrown channel, and the railroad crossing and utility line impacts on the flooding.



HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, we prepared a preliminary HEC-RAS evaluation for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Conflicting flow data was used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected. A new HEC-RAS model was prepared. In this new model three profiles were run. The initial profile was for the site assuming the Kmart and Kroger building were never built and the grades were at the surveyed elevation at the exterior of the building. This profile was used as a benchmark model. A second profile was run based on an unobstructed floodway with a channel having only light brush and weeds. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel. The second profile was run with the Kroger building only, the Kmart building alone, and the combined Kmart- Kroger building. The model of the second profile with only the Kroger building determined that a rise of 1.10 feet occurred relative to the benchmark, slightly higher than the rise predicted by FEMA’s floodway calculation. The model of the Kmart building found a rise of 1.0 feet relative to the benchmark. The model of the Kmart-Kroger building also found a rise of 0.9 relative to the benchmark. Although the above calculations appear to indicate that the addition of the Kroger building to the Kmart building had no impact on the Kmart building, a review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of flow at the building by 20 percent. Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 114 feet, increasing the exposure of the building to flowing water. Rapidly flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss.



During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. To test the potential impact of the overgrown banks along Elam Creek channel, a third HEC-RAS profile was run based on channel properties for high flows and a poorly maintained channel found in the documentation for the HEC-RAS model. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 year event. The results the high flow-poorly maintained condition was compared to the result from the second profile which assumed a moderately well maintained channel without obstruction. The comparison of the two models found that for the Kmart-Kroger building, the poorly maintained channel resulted in a 1.4 feet rise when compared to the depth at the site with a maintained channel. When the water level from the third profile was compared to the benchmark profile, the flow was 2.3 feet higher than the benchmark which is also in line with reported events. Conclusions:

1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store as well as other buildings in the floodway increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart.

2. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.

3. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart.

4. Despite the location of the building in a large and documented floodplain and floodway with a documented history of recent damaging past floods, no actions such as caulking and waterproofing the exterior walls, or construction of a protective membrane around the building were done to protect the building.



It is our belief that: had the creek channel been maintained, had building construction in FEMA’s regulatory floodway been restricted, had the area behind the Kroger and Kmart stores not been filled, and had the building been protected by waterproofing, the Kmart store would not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage. Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession. If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted.

Any verbal statements made before, during, or after the course of the investigation

were made as a courtesy only and are not considered a part of this report.

Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance. Sincerely, EFI Global, Inc.

John R. Krewson Engineering Consultant



John R. Krewson, PE

FIGURE 1 - OVERALL SITE



FIGURE 2 – CLOSE AERIAL VIEW OF SITE



FIGURE 3 – FEMA FIRM PANEL OF THE SITE Panel No.2803C0067C

Effective Date: Sept. 17, 2010


Partridge Residence EFI No.: 98340-09777 April 25, 2011

FIGURE 4 FRONT VIEW OF KMART AND

KROGER

FIGURE 5 LEFT SIDE OF THE KMART



FIGURE 6 VIEW ALONG THE FRONT OF KMART LOOKING FROM THE LEFT SIDE

FIGURE 7

VIEW ALONG THE REAR OF KMART LOOKING FROM

THE LEFT SIDE



FIGURE 8 LEFT SIDE OF KMART LOOKING FROM THE REAR CORNER WITH TYPICAL DROP INLET IN

FOREGROUND

FIGURE 9 TYPICAL DOWN DRAIN ON REAR OF

BUILDING



FIGURE 10 CURB CUT IN REAR PARKING CURB NEAR LEFT SIDE OF KMART WITH

DITCH BEYOND

FIGURE 11

FLUME THROUGH CURB BEHIND

KMART



FIGURE 5

FIGURE 12 DITCH BEHIND

KMART

FIGURE 13 GRASSED FIELD IN AREA THAT WAS FILLED IN BEHIND THE SITE WITH NEW FILL IN THE

BACKGROUND



FIGURE 14 INLET TO 60 INCH PIPE COLLECTING WATER FROM THE DITCH BEHIND THE

SITE

FIGURE 15

VIEW OF THE FIELD BEIND THE SITE NEAR THE RIGHT CORNER OF

KROGER



FIGURE 16 PILE OF FILL MATERIAL IN THE FIELD BEHIND THE SITE WITH KMART AND KROGER IN THE

BACKGROUND

FIGURE 17 RIGHT SIDE OF THE KROGER LOOKING BACK TOWARD HIGHWAY 72

WEST



FIGURE 18 FLOODING DEBRIS IN THE FENCE ON THE RIGHT SIDE OF THE ROAD RUNNING BESIDE

KROGER

FIGURE 19 LOOKING UPSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE SOUTHEAST OF

THE SITE



FIGURE 20 LOOKING DOWNSTREAM AT DEBRIS FIELD AT RAILROAD

BRIDGE

FIGURE 21 DEBRIS FIELD AT RAILROAD

BRIDGE



FIGURE 5

FIGURE 22 ABANDONED UTILITY LINES OBSTRUCTING ELAM CREEK WITH SPUR RAILROAD BRIDGE OBSTRUCTION AND OVERGROWN

CHANNEL

FIGURE 23

OVERGROWN AND UNMAINTAINED CREEK

CHANNEL



FIGURE 24 TREE AND OVERGROWN AND UNMAINTAINED CREEK CHANNEL AT

BRIDGE

FIGURE 25 OVERGROWN SPUR RAILROAD BRIDGE WITH UTILITY OBSTRUCTIONS IN

BACKGROUND


Amended Flooding Evaluation

Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 Prepared For: Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C.

909 Poydras Street, Twenty-eighth Floor 0112 New Orleans, Louisiana 70112

EFI Global Job No: 98340-08794

October 11, 2013

Prepared By:

EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097


mrome


3039 Premiere Parkway

Suite 700

Duluth, GA 30097

Tel: 770-925-9600

Tel: 800-245-9601

Fax: 770-925-9649

www.efiglobal.com

October 11, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Re: Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794 Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model. For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street. Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways


Kmart # 4883 Amended EFI No.: 98340-08794 October 11, 2013

are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking. The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat. Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings. Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain. The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above. Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010. By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors,



lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staff’s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores. Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth. Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount. FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek. According to the FIRM panel, approximately one half of the Kroger store is located in both the floodplain and also in the area FEMA has designated as being the regulatory floodway. The Kmart store is located in the floodplain only. According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on



November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities. The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states: “Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1-percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.” Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as



the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked. The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek. The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program. A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time. The derivation of the floodplain and floodway data shown on the plans is unknown. Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”. The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities. The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency



responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found. Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001. Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site. Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection:

Southeast of the Kmart near Highway 72, at the point where Kansas Southern Railroad’s north-south railroad line crosses Elam Creek on a timber bridge, a considerable debris field was noted upstream of the bridge. The debris blocked approximately the lower quarter of the bridge opening. Mr. David Huwe, the Director of Community Development and Planning for the City of Corinth stated during an interview in his office that the railroad had a poor record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event. Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge.

A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.

The creek channel was badly overgrown with vegetation and poorly maintained. Near the spur railroad bridge noted above, utility and sanitary sewer pipes crossing the channel were apparently abandoned in place, obstructing the channel.



The approximately 4.5 acre grassed field immediately behind the Kmart and Kroger building was originally a number of feet lower in elevation. According to Mr. Huwe with the City of Corinth, the city filled the area over time with excess earth material from various projects around the city. Evidence that dumping of excess fill was still underway was found at the time of the initial inspection of the area (Figure 10). Filling the area reduced the flood storage and flood protection for the Kmart and Kroger building.

HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, a preliminary HEC-RAS evaluation was prepared for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Two conflicting flow data values were used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. This report revises those values. For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected from 3702 cfs to 5202 cfs. The Manning’s N values were also corrected to reflect the conditions of the channel and the flooding depths occurring at the time of the loss. This amended report pertains to re-calculated runs using the same scenarios described in the original results dated September 20th, 2012 and in the original modeling. This amended report does not use the scenarios described in the amended report dated July 23, 2013 and does not use the HEC-RAS model used in that report. Three models were run. The first model was run with the Kmart building alone. The second model was the combined Kmart- Kroger building. In these models, the N values were set based on the overgrown channel as it existed at the time of loss. The results of these models found that the addition of the Kroger store to the site resulted in two inch rise in the flood elevation compared to the flood elevation for the Kmart only site with no Kroger. The models showed water levels at the store site that were approximately comparable to the water levels reported at the time of the flood. A third model was run based on an unobstructed floodway with no Kroger and a channel having only light brush and grasses as would be appropriate for a properly maintained channel. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel.



A review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 193 feet and increased the average velocity of flow at the building by 16 percent. Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 129 feet, increasing the exposure of the building to flowing water. Flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss. During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site during the flood could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 flooding year event. Conclusions:

1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart.

2. The presence of the Kroger in the FEMA floodway reduced the flooding width resulting increased velocities as anticipated by FEMA, increasing the depth of flooding and the impact on the Kmart store.

3. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010.

4. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart.

5. Despite the location of the building in a large and documented floodplain and floodway no actions such as caulking and waterproofing the exterior walls, or



construction of a protective membrane around the building were done to protect the building.

It is our belief that: had the creek channel been maintained, had building construction in FEMA’s regulatory floodway been restricted, had the area behind the Kroger and Kmart stores not been filled, and had the building been protected by waterproofing, the Kmart store would not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage. Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession. If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted.

Any verbal statements made before, during, or after the course of the investigation

were made as a courtesy only and are not considered a part of this report.

Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance. Sincerely, EFI Global, Inc.

John R. Krewson Engineering Consultant



FIGURE 1 - OVERALL SITE
