"We expected the soil cement lining to experience some cracking; that is the nature and makeup of the material," Seeber wrote. In the letter, Seeber estimates the area of cracks to equal "about 5 acres of the 80 acres of [soil-cement] material."

The utility contends the problem goes beyond normal cracking. It points to a report by Black & Veatch—hired to investigate the causes of the cracking—that suggests the problem is caused by increasing pressure in the soil-cement wedge. As the water in the reservoir recedes, the theory goes, the water in the soil wedge remains stuck at higher levels, which eventually leads to cracking.

Black & Veatch's theory "doesn't hold water," Connolly says. In fact, he says, HDR discovered data that show no buildup of pressure in the soil wedge.

Still, says Kennedy, "The bottom line is, they did not provide a drain for that soil wedge. We have two million cubic yards of dirt that doesn't give up its water."

Despite the cracks, TBW has regained the full permitted use of the facility since finishing repairs in 2009.

Fuss Over a Fix

Originally, in addition to HDR, Tampa Bay Water sued the construction manager, Columbia, Md.-based Construction Dynamics Group (now part of ARCADIS), along with Barnard Construction Co. and its embankment subcontractor, McDonald Construction Corp.

It settled with CDG for $6 million. The utility also settled with Barnard, for $750,000. As part of its agreement with Barnard, the contractor remained a party to the suit and liable for up to $5 million, pending the trial's outcome.

HDR moved to void the deal, asserting it was a "Mary Carter agreement." The term refers to a 1967 Florida appeals court case, Booth v. Mary Carter Paint Co. Lawyers.com defines the term as an agreement wherein "participating defendants agree to remain as parties to the lawsuit and guarantee payment to the plaintiff of a settled amount if no recovery is awarded against the other defendants. The plaintiff agrees to offset its liability by … a recovery awarded from the other defendants."

In August, U.S. District Judge James B. Whittemore granted HDR's motion in part and released Barnard from the suit, effectively finalizing the contractor's restitution at $750,000.

"We got to defend ourselves against Tampa Bay Water, and we did a really good job of that," says Barnard's Ellerton. "That's why the settlement came about. Honestly, they probably knew we were going to beat them anyway. They needed some ammunition to go after HDR."

What’s Owed

HDR contends the rebuilt reservoir embankment is being designed to a higher standard. This summer, Tampa Bay Water awarded Kiewit Infrastructure Group South and engineer Gannett Fleming a $162.4-million design-build contract to rebuild and expand the reservoir. Kiewit and Gannett Fleming's design provides a 160-mgd drawdown rate—considerably higher than the 66 mgd provided in the original HDR design.

The engineer points to a Tampa Bay Water "Embankment Design Report," dated Sept. 7, 2000, that lists the reservoir's drawdown rate as 66 mgd. "The reservoir could operate at a maximum outflow of 66 mgd," the report reads.