FLOOD09481

• County: Statewide
• Community: State
• Stream Name: All
• Basin: Statewide
• Title: Practices in Detention of Urban Stormwater Runoff
• Date: 1/1/1974
• Prepared For: American Public Works Association
• Prepared By: American Public Works Association
• Floodplain - Doc Type: Educational/Technical/Reference Information

8. Can we ask the local public agency
requiring the detention facilities to reimburse
us for all or a portion of the construction
costs involved and the market value of the
land required for the detention facility?
9 After we provide detention facilities
in accordance with the requirements and
standards of the local public agency, can we
legally be required at a future date to upgrade
the facility to more restrictive standards that
may have been adopted subseql1ent to the
date of our initially approved plans?
10. If damage is sustained on our own
property from the required detention facility
(basements flooded, etc.), is the public agency
legally liable for the damages - since they
required the facility?
11. For what length of time (years) must
we maintain and operate the facility?
12. If we raze all permanent structures
(buildings, parking areas, etc.) at a future date,
can we remove the detention facility and
cease to operate and maintain it?
Providing answers to all of the above legal
questions seemingly would be a major effort
for a competent attorney; and no doubt,
many of the answers would be different in
various places because of the difference in
laws across the country. The circumstances
surrounding specific applications of
stormwater detention would be an important
factor in determining the answers to the legal
questions. For these reasons, it appears that
persons involved. in requiring or providing
major storm water detention facilities would
be acting wisely if they first sought the advice
of their legal counsel.
Legal Considerations: Some legal aspects
of detention storage of runoff that deserve
consideration prior to constructing and/or
operating detention facilities are:
1. legal aspects of drainage law;
2. authority of the public jurisdictions to
require detention storage of runoff - and the
detailed requirements related to such storage
and release;
3. legal responsibility for maintenance of
detention storage facilities whether they be
roof tops, parking lots, surface ponds or other
facilities;
4. legal responsibility for damages
resulting from the operation or physical

failure of stormwater detention facilities;
5. legal responsibility if a detention
reservoir at some date be removed, thereby no
longer protecting downstream property
owners from floods;
6. legal responsibility for damages caused
by excessive flows of stormwater when
released from storage facilities located on
public or private lands;
7. legal responsibility for providing
safety facilities to minimize the hazards of the
storm water detention ponds, especially as an
attractive nuisance to children; and the
8. legal right to the use or consumption
of stored storm water, thereby disturbing
normal flows of water into areas located
downstream from detention facilities.
Drainage Laws: There are three types of
drainage laws generally recognized in the
United States:

1. Common Enemy Rule
2. Civil Law, and
3. Doctrine of Reasonableness.

Under common enemy rules, stormwater
runoff is viewed as an undesirable element
and a property owner is allowed to dispose of
all runoff in whatever method is available to
him without regard to the land receiving the
water. Few, if any, courts seem to follow this
doctrine strictly.
Civil law, on the other hand, says that
nothing can be done to change the flow of
runoff in any way that is harmful to other
property or in any way that is unnatural to
normal flow. This, too, is not usually
followed closely in court decisions.
The reasonableness doctrine lies between
these two extremes and is most often the law
actually used. Although one of the two
previous types of drainage laws may be on the
books in a given jurisdiction, the courts
historically have interpreted the law with an
attempt to provide equity. Thus, under this
doctrine, the legal aspects of detention
storage of runoff are tested by its
reasonableness. If the operation of the
storm water detention storage facility does not
cause damage to downstream property, it will
probably be found legal. In view of this and
because the purpose of detention storage is to
protect downstream property, legal problems

16