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I I I I I I I I I I I I I I I I I I I A-2 Mr. Ben Urbonas, P.E. February 20, 1979 Page Three a channel which will safely carry the additional waters so as not to do more harm than formerly would be acceptable. Denver will, in my opinion, be subject to the line of cases cited in paragraph 1 if it does not require the developer to provide for the extra run-off. 3. Potential damages. The Phase A Report, Figure 4, identi- fies the additional run-off under defined storm conditions. The estimated run-off has been determined to overtop the current ditch and infiltrate Marston Lake's drinking water. This certainly is an indication of "more harm than formerly" so upstream developers and the City are on notice. This is one of the purposes of a Phase A Report. 4. Drainage design alternatives. In drainage matters, a munic- ipality can be expected to be treated like a private party. 2 Farnham, Water and Water Rights, pp. 972 and 977. Any improvements upstream must take into consideration the outlet capability downstream. The highways built by governments must also permit the natural flow of surface waters because the owner of the upper land has an easement over lower land for drainage of surface water flowing in its natural course. Ambrosio v. Perl Mack, 143 Colo. 49, 55, 35 P.2d 803, 806 (1960). Finally, whatever alternative involving a drainage improvement is made, the improvement ~ be maintained. The government o~ning such improvement will be held for its negligence in failing to maintain the improvement if such failure results in damage. (Long line of case law) CONCLUSION This basin, once fully developed, has the potential for causing substantial damage downstream. This Phase A Report points this out and suggests an alternative to provide a solution. Without providing such a solution, or an alternative one, development upstream should not be permitted by the City and County of Denver. Yours very truly, /fJ}JIc-r-e ;r?'L-t'--/U^----, w. FJ. Shoemaker WJS:ca