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<br />SHOEMAKER A1\'"D '''TUAM
<br />ATTORNEY!:; AT LAW
<br />1421 COURT PLACE BUILDING
<br />DE~'""ER, OOLORADO 80202
<br />
<br />W. JOSEPH $110EMAI'iER
<br />ROBERT S. WHAM
<br />EDwARD .J. KRISOR, JR.
<br />RICHARD H. HILL.
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<br />Mr. Ben Urbonas, P.E.
<br />Page Two
<br />March 20, 1978
<br />
<br />303_$:34_6386
<br />
<br />March 20, 1978
<br />
<br />Mr. Ben Urbonas, P.E.
<br />Urban Drainage and Flood Control District
<br />2480 West 26th Avenue. Suite 156-B
<br />Denver, Colorado 80211
<br />
<br />Drainage law also generally follows the concept that
<br />nature should be allowed to take its own course, and the natural
<br />watercourses developed over the years are the best way to carry
<br />off surface waters. In Hankins vs. Borland, 163 Colo. 575,
<br />431 P.2d 1007, 1010 (1967), the Colorado Supreme Court stated:
<br />
<br />Re:
<br />
<br />Dry Gulch and North Dry Gulch
<br />
<br />"Natural drainage conditions may be
<br />altered by an upper proprietor pro-
<br />vided the water is not sent down in
<br />a manner or quantity to do more harm
<br />than formerly."
<br />
<br />The reverse is also true. The builder of an "improvement" to the
<br />natural watercourse cannot build such an improvement so as to
<br />obstruct the natural passage of the water. Further, once a
<br />government has involved itself in the construction of drainage and
<br />flood control improvements, it must see that such improvements are
<br />maintained.
<br />
<br />Dear Ben:
<br />
<br />W. Joseph Shoemaker has received your letter of February 22,
<br />1978, including the above-referenced report, and has requested
<br />that I render a legal opinion as to the recommendations contained
<br />in the report. I have read the report in its entirety and have
<br />viewed the areas in question with you as my guide. As I see the
<br />report, it i.s meant to be an engineering and plannin[ approach t.o
<br />a particular drainageway in the District, and my comments cont.ained
<br />in this letter are meant to raise and cover potential legal issues
<br />and should not be interpreted as being critical of the report, nor
<br />as substituting my judgment for yours or Sellards & Grigg, Inc.
<br />
<br />Finally, on a general note, the least that can be accom-
<br />plished by local government is to identify and then regulate the
<br />use of the flood plain. So long as good engineering practices are
<br />followed, a local government should not be liable because a par-
<br />ticular parcel of land was not identified as being in the flood
<br />plain.
<br />
<br />1. General.
<br />
<br />Generally, in my opinion, the City of Lakewood, the City and
<br />County of Denver, and the District, who are paying for this report,
<br />have no obligation to do anything about the dangerous conditions
<br />which now exist, except perhaps to call to the attention of the
<br />owners and dwellers in the Basin such conditions. Privat.e parties,
<br />for the most part, have created the hazardous and potentially
<br />hazardous conditions and in the event. of loss of life or property
<br />such persons damaged would have their recourse against the tort
<br />feasors.
<br />
<br />In reviewing the alternatives discussed in the engi-
<br />neer's report and finally the recommended alternatives, I have
<br />based my opinions on the legal theory that an alternative is legally
<br />acceptable if it does not increase damage from its present level in
<br />time, space or amount upstream, downstream, or adjacent to the pro-
<br />posed improvement. Of ~ourse, each alternative was looked at and
<br />legally evaluated individually and in conjunction with the other
<br />alternatives in the other reaches covered in the engineer's report.
<br />Therefore, if any alternative or any recommended alternative
<br />viewed in conjunction with other alternatives proposed to be
<br />constructed increases damage from its present level in time,
<br />space or amount upstream, downstream, or adjacent to the pro-
<br />posed improvements, then that alternative shall be considered
<br />legally unacceptable.
<br />
<br />Although government has no obligat.ion to help solve these
<br />man-made problems, if, for various reasons it chooses to do so,
<br />which is the prerogative of the legislative bodies of each govern-
<br />ment, then it must make certain that such assistance is carried out
<br />in a non-negligent manner. I do not believe the law r~es local
<br />governments to prevent or even solve drainage and flood control
<br />problems. lbwever, if a government chooses to do so, it will be
<br />held to the same standard of care as a private party.
<br />
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