FLOOD07908

• Designation Number: 260
• County: Jefferson
• Community: Unincorporated Jefferson County
• Basin: South Platte
• Title: Major Drainageway Planning - Sanderson Gulch/Weir Gulch Volume I
• Date: 8/1/1972
• Designation Date: 12/1/1987
• Floodplain - Doc Type: Floodplain Report/Masterplan

1. !..iabili ty of a Rc~crvoir OW::.cr

It is provided by statute in Colorado that the owner of a
dam is strictly liable for damage occasioned by its failure.
C.R.S. 1963, Sec. 148-5-4 and 148-5-13. There is a doctrine
that an Act of God will relieve a dam owner of liability
from dam breakage, R an Gulch Reservoir Co. v. Swartz,
77 Colo. 60, 243 P. I 5 1925. However, ln a later appeal
in the same case, R~an Gulch Reservoir Co. v. Swartz, 83
Colo. 225, 263 P. 7 8 (1928), it was held where the Act
of God was contributed to by the negligence of the dam
owner, there would be liability. Presumably, negligence
accompanying an Act of Cod would be a rather common set
of facts, since the exact problem we are raising is the
duty of the dam owner to anticipate a certain degree of
flooding. In Freel v. Ozark-Mahonin Com an , 208 F.Supp.
93 (1962), Ua lllty or am rea age on two occasions of
flooding was postulated on the statutory strict liability
and the Act of God defense was not raised. The issue is being
raised again in a case now on appeal before the Colorado
Supreme Court r~garding the failure of Clay Creek dam near
Lamar, Colorado, under an unprecedented flood.

few feet of storage for flood purposes. I::. most cases,
adequate freeboard and spillway design will physically
guarantee the type of storage required, si~ce tem~orary ,
detention occurs automatically when the sp111way 1s floWln9
full.

One form of consideration flowing to the owners in exchange
for these two elements of control could be physical con-
structio~ by the District or municipality to make the
structure hydrologically safe, either at its sole expense
or by ratable participation with the owner. Another form
could be indemnification for flood damage liability, elther
total or pro rata, and a third form could be participation
in maintenance and operation costs.

The Act of God defense mav be inconsistent with the District's
overall objectives unless- certain limitations can be drawn
upon the concept. In an area of flood-plain zoning, definite
legislative categories have been created to delineate re-
sponsibilities based on the 100 year flood. If it were
found categorically in a flood-plain area that only floods
greater than the 100 year frequency flood could qualify as
an Act of God, or, alternatively, that design based on any
flood less than loa year frequcncy was negligence per se,
then the doctrine would be complctely consistent. Otherwise,
the doctrine may slightly weaken the District's position.

A simple means of accomplishing all these objectives would
be a conveyance from the oWner to the operating municipality,
in exchange for an operating criteria whiCh ~oul~ ~rovide
for a certain permanent pool (subject to avallablllty of
water) to the benefit of the grantor. This would, of course,
vest all control in the municipality, subject to the operating
criteria, as well as all liability. It is conceivably possible
that such an agreement could be formulated and negotiated
that would require no cash payment to the owner, but simply
a take-over of the problems of ownership.
It should be emphasized that where decreed water rights
eXlst, there is no necessity for the~r purchase. The o~ner-
ship of the "tr\lcture can he ,,"parated frnm the o"mersh,-p
of the rights and the right to use the 5tructure for tho~e
water rights could still remain. All that would,be requ~red
is a sufficient agreement to satisfy the water rlght Owner
of his continued right to lIse of the structure.
In the case of the large irrigation reservoirs, it is doubt-
ful that such a purchase arrangement would be as attractive
since both maintenance and control of facilities are the
ditch company's stock in trade. In these situatio~s, a
contractual arrangement rather than a conveyance mlght b~
favored. If the District is satisfied with the existing
safety of the structure or if structural modifications for
safety purposes are contemplated a~ ~n initia~ ma~te~ within
the contract, then an agreeMent to glYB the Dlstrlct a VOlec
~t t~c time of ~~y f~t~rc mcdific~tio~~ might be adequate to
satisfy the first element of control. An option to purchase
on abandonment, or first right of refusal on any contemplated

In any case, the liability for unsafe structures is of a
severe kind. If the District can come in with an offer to
help relieve that hazard, there should be a favorable ground
for agrce'",cnt.

2. Proposed Form of Agreemf>nt
The essential elements of control rcauired by the District's
interest in flood control structures "are (1) sufficient
control in the ownership to make all safety related decisions
and (2) the power to maintain the structure p",rpetually.
Beyond this, the only requirement is the right to use the top

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