FLOOD03506

• County: Jefferson
• Community: Lakewood
• Stream Name: South Lakewood Gulch
• Basin: South Platte
• Title: Major Drainageway Planning
• Date: 8/1/1978
• Prepared For: Lakewood
• Prepared By: UDFCD
• Contract/PO #: &&
• Floodplain - Doc Type: Floodplain Report/Masterplan

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w. .JOSEPH SHOEMAI'IER
ROBERT 5. WH....M
COWARD J. t(RISOA, .JR.

RICHARD H. HILL

APPENDIX B
LEGAL OPINION
SHOEMAKER AND WHAM
ATTORNEYS AT LAW
1421 COURT PLACE BUILDING
DENVER, COLORADO 60202

Mr. Ben Urbonas, P.E.
Page Two
September 26, 1977

303-534-6386

September 26, 1977

Drainage law also generally follows the concept that
nature should be allowed to take its own course, and the natural
watercourses developed over the years are the best way to carry
off surface waters. In Hankins vs. Borland, 163 Colo. 575,
431 P.2d 1007, 1010 (1967), the Colorado Supreme Court stated:

Mr. Ben Urbonas, P.E.
Urban Drainage and Flood
District
2480 West 26th Avenue
Denver, Colorado 80211

Control

"Natural drainage conditions may be
altered by an upper proprietor pro-
vided the water is not sent down in
a manner or quantity to do more harm
than formerly."

Re:

South Lakewood Gulch
Phase A Report

The reverse is also true. The builder of an "improvement" to the
natural watercourse cannot build such an improvement so as to
obstruct the natural passage of the water. Further, once a
government has involved itself in the construction of drainage and
flood control improvements, it must see that such improvements are
maintained.

Dear Ben:

W. Joseph Shoemaker has received your letter of August 29,
1977 including the above-referenced report and has requested
that I render a legal opinion as to the recommendations contained
in the report with special emphasis on Reach II-B (Garrison Street
to Rockmont Ponds) and Reach V-A (Wadsworth Boulevard to the Auto
Complex). I have read the report in its entirety and have viewed
the gulch in question on two separate occasions, once with you as
my guide. As I see the report, it is meant to be an engineering
and planning approach to a particular drainageway in the District,
and my comments contained in this letter are meant to raise and
cover potential legal issues and should not be interpreted as being
critical of the report, nor as substituting my judgment for yours
or Wright-McLaughlin Engineers.

Finally, on a general note, the least that can be accom-
plished by local government is to identify and then regulate the
use of the flood plain. So long as good engineering practices are
followed, a local government should not be liable because a par-
ticular parcel of land was not identified as being in the flood
plain.

This opinion will proceed from the "uphill" portion of
South Lakewood Gulch and follow the gulch to its confluence with
Lakewood Gulch, and comments will be made on those reaches of the
gulch where it is felt necessary, or where a request has been
made for comment.

Generally, in my op~n~on, the City of Lakewood and the
District, who are paying for this report, have no obligation to do
anything about the dangerous conditions which now exist, except
perhaps to call to the attention of the owners and dwellers in the
Basin such conditions. .Private parties, for the most part, have
created the hazardous and potentially hazardous conditions and in
the event of loss of life or property such persons damaged would
have their recourse against the tort feasors.

1. Reach I (Kipling to Addenbrooke Pond). The alter-
native suggested involves the diversion of low flows from the
stream channel in contour type ditches to fixed weirs which would then
allow the flow to run through a wide grassed area for purification.
This portion of the alternative is satisfactory if the flows by
this diversion are not allowed to get out of the basin drainageway.
If the flows during-rhe 100-year event would leave the basin
drainageway by reason of this suggested alternative, the City of
Lakewood and the District would be exposed to liability for
creating a drainage problem where none existed in the past.

Although government has no obligation to help solve these
man-made problems, if, for various reasons it chooses to do so, which
is the prerogative of the legislative bodies of each government, then
it must make certain that such assistance is carried out in a non-
negligent manner. I do not believe the law requires local governments
to prevent or even solve drainage and flood control problems. However,
if a government chooses to do so, it will be held to the same standard
of care as a private party.

B-1