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<br />local municipalities must be no less <br />demanding than the requirements of the <br />higher authority. <br />So m estate governments impose <br />requirements for on-site detention of runoff. <br />Maryland does this by means of state laws <br />pertaining to the control of soil erosion and <br />siltation. Other states, such as Minnesota and <br />New York, have state building codes which <br />can be used to impose regulations concerning <br />detention of rainwater on rooftops. <br />The adoption of effective legislation is <br />needed for implementing effective and <br />equitable local programs designed to regulate <br />peak runoff flows from new land <br />developments or existing developments where <br />improvements are planned. The development <br />of model legislation is recommended as an aid <br />to local governments and other public <br />agencies having responsibilities for stormwater <br />management. <br />Chapter 10 of this report contains detailed <br />descriptions of provisions of specific <br />legislation pertaining to storm water <br />detention. <br /> <br />Legal Aspects · <br />Perhaps no aspect of detention storage of <br />stormwater runoff leaves as many unanswered <br />questions as the legal aspects. Laws on <br />drainage are, in general, not well defined and <br />vary considerably throughout the nation; but <br />the lack of court cases concerning detention <br />storage of stormwater runoff makes the legal <br />aspects of detention of runoff even less well <br />defined. No effort is made in this section to <br />provide answers to pertinent legal questions; <br />however, an attempt is made to call attention <br />to legal questions that may arise and to <br />presen t some general observations. <br />Information was gathered from several <br />attorneys and publications on drainage law in <br />the preparation of this section of the report. <br />Pertinent Legal Questions: This section <br />points out some of the legal questions that <br />may be encountered by representatives of <br />local public agencies who are contemplating <br />requiring that detention facilities be provided <br />or, on the other hand, by land developers who <br />are being required to provide them. Some <br /> <br />* 'This section is not a legal opinion and local law prevails. <br />'Rather, the section i'l> intended as a jtenetal summary. <br /> <br />questions that appear to be pertinent are <br />listed below for the purpose of orienting the <br />reader to the discussions that follow in <br />subsequent sections of this chapter. <br />Questions of Public Agency Representatives: <br />I. In the absence of specific mention of <br />powers of local governments and districts can <br />we (the public agency) legally require the <br />developer to use a portion of his privately <br />owned acreage for stormwater detention? <br />Might this not constitute a deprivation of the <br />owner's beneficial use of his land? <br />2. In requiring owners (developers) of <br />private land to provide detention facilities, is <br />our public agency obligated to pay all or a <br />portion of the costs for construction? <br />3. How restrictive can we be in our <br />requirements for design of detention facilities <br />(volume of storage required, maximum <br />permitted release rate)? Could we require <br />storage of the 200-year rainfall runoff? Could <br />we limit the maximum release rate drastically <br />- even below that which existed on the land <br />in its natural, undeveloped state? Can we <br />require a zero release ~ thus requiring all <br />excess precipitation to be used for recharging <br />subterranean water supplies? <br />4. Can we require the private land <br />developer to store (detain) runoff that has its <br />source from land other than that in question? <br />Must the other land owners involved pay a <br />prorata share of the initial construction costs <br />and maintenance and operation? <br />5. Does the public agency assume an <br />implied responsibility for maintenance and <br />operation of detention facilities that the <br />agency required a private developer to proVide <br />on his private property? <br />6. In an instance where the use of <br />land development ceases but the storm water <br />detention facility remains (buildings, parking <br />lot, drives), what recourse does the public <br />agency have to assure continued operation <br />and maintenance of the detention facilities? <br />Questions of Private Land Developers: <br />7. Is it legal for the public agency <br />having jurisdiction over land development and <br />construction to refuse to issue' permits for <br />commencing land development operations <br />and construction if we refuse to comply with <br />the public agency's requirement that we <br />provide detention of runoff on our land. <br /> <br />15 <br />