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

that arise in the operation of stormwater
detention storage facilities do not appear to
hinder their implementation from the legal
viewpoint of drainage laws.
A uthority for Requiring Stormwater
Detention: It is generally held that a
municipality is not required by the state to
provide urban drainage nor is it liable for any
damages that result from the failure to
provide drainage. However, most
municipalities provide urban drainage
facilities and require land developers to
provide drainage systems in new
developments. Subdivision laws usually
contain requirements that a drainage system
be provided as a condition for plat approval.
Detention storage requirements have been
included in different types of local laws
including subdivision regulations, zoning
ordinances, building codes, water pollution
regulations, plumbing and sewer ordinances
and as general policy statements. There have
been no court cases found that challenged the
authority to enact these laws. Legal opinions
concerning the legal authority to require
detention storage of runoff center on the
reasonableness of such requirements and the
flexibility of these requirements to meet
different situations.
Maintenance of Facilities: The question
of who has the legal responsibility for
maintenance of facilities for detention storage
of storm water runoff is one of great
controversy, especially for large facilities. No
court cases have been noted and, apparently,
no precedent has been set; however, some
municipalities seem to agree with lawyers who
feel that the maintenance of such structures
should be public responsibility - because the
detention facilities are constructed for the
public good. But, this is not always the case as
some local jurisdictions have required private
owners to assume maintenance of stormwater
detention facilities. In at least one
municipality (Palatine, Illinois), maintenance
has been deemed the responsibility of the
owner, although the municipality will
perfonp. necessary maintenance and bill the
owner if the owner is negligent.
The responsibility for maintenance of
detention facilities on rooftops and parking
lots is less well-documented than for facilities

on ground surfaces. As a legal requirement for
the public good, it might be argued that the
maintenance of such facilities should be a
public responsibility. However, in
contradiction to this reasoning, consider the
requirement for maintaining sidewalks on
public rights-of-way where the shovelling of
snow is required for the public good. In most
places, this is the legal responsibility of the
owner or tenant of the abutting property. If
the latter reasoning is applied to storm water
detention facilities on rooftops and parking
lots, maintenance would become the
responsibility of property owners.
Failure of Facility: Although no court
case is known contesting this point, it is
useful to compare stormwater detention
storage facilities to other flood control
devices. If failure was caused by faulty design,
the facility owner would probably be liable
for damages. If, however, the failure was
caused by factors other than faulty design,
such as a rainstorm event larger than that
specified in local design requirements, the
disaster would fall into the category of An
Act of God. In this case, the owner of the
stormwater detention facility probably would
not be liable if past cases that have been
researched are an indication of the reasoning
currently employed by the courts.
Continuance of Detention Facility: Once
built, a detention facility benefits property
owners located at and downstream of the
facility. It may become desirable for the
owner to discontinue operation of the
facility. This would subject properties and
people once protected from flooding and its
accompanying effects to the ravages of floods
once more.
By the reasonable use doctrine, it appears
that the owner of such a facility is not legally
bound to maintain his detention facility and
he would be permitted to remove the
detention storage facility if he does not alter
the runoff flow to downstream property from
what would have been the natural flow
without the facility. Of course, if his facility
had been required by law, this would not
apply and the property owner would be
required to retain his facility unless the law
were ruled invalid or title could be transferred
to a new owner.

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