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<br />Flooding From Storm water Storage <br />Facility: It may happen that the detention of <br />storm water runoff may intrude onto the land <br />of others. Liability for damages is then <br />dependent on whether or not the design, <br />construction or operation of the facility was <br />faulty or whether it was caused by another <br />factor such as an extremely intense rainfall. <br />Often, it seems, the courts will examine the <br />amount of flooding attributable to the <br />drainage system. Usually, the amount of the <br />judgment will be based upon the increased <br />damage caused by the drainage system at <br />issue. <br />Safety Features: One of the big <br />questions to public officials contemplating <br />the construction of detention facilities is the <br />safety hazard that the facility presents, <br />especially to children. A stormwater <br />deten tion pond may be considered an <br />attractive nuisance. In this case, the facility <br />owner might be held liable for any harm to <br />persons. Because of this and the desire to <br />protect children, many public officials require <br />fencing the facility to relieve themselves and <br />others from this liability. <br />The laws governing legal liability for <br />personal accidents attributable to safety <br />hazards vary depending on the jurisdictions <br />involved and the particular circumstances <br />surrounding each case. In Cook County, <br />Illinois, for example, the opinion of the legal <br />counsel of the sanitary district is that the use <br />of fencing does not reduce the liability of the <br />detention facility owner. It appears that <br />stormwater detention storage facilities would <br />not be held to be attractive nuisances, per se, <br />according to the drainage laws of most places <br />in the United States, and that the attractive <br />nuisance doctrine is not applicable. <br />Water Impoundment: Laws governing <br />water rights can be of importance with <br />respect to detention storage in arid and <br />semi-arid regions, or in places that practice <br />irrigation. If a downstream user impounds <br />water for use in irrigation, and an operator of <br />an upstream detention facility reduces the <br />flow over a great enough time span to alter <br />the total released outflow due to evaporation <br />or infiltration or a diversion of his own, the <br />downstream user may sue to regain his former <br />water rights. It may be that the downstream <br /> <br />user was allowed to impound water only <br />during periods of flow when the flow rate was <br />greater than a specified minimum. Detention <br />of the stormwater upstream might reduce the <br />peak flows to the extent that impoundment <br />downstream would be possible only for a <br />shorter time-period. This would lessen the <br />total volume of water that could be <br />impounded. <br />A study involving detention storage and <br />water rights is described in a report made of <br />drainage alternatives for Albuquerque, New <br />Mexico. The City wanted to capture <br />storm water runoff and provide facilities for <br />infiltration of the water into the ground; but <br />this would reduce the flow to the Rio Grande <br />River and violate the terms of the Rio Grande <br />Water Compact. This agreement, signed in <br />1938, apportions the water of the Rio Grande <br />between three states based on streamflow <br />records and has international ramifications <br />between the United States and Mexico. Any <br />surface runoff that would be caused to <br />infiltrate into the ground would have to be <br />replaced with water from another source <br />under the terms of the agreement. <br />Summary: Although legal information <br />was obtained in this study from four <br />practicing attorneys having experience in <br />urban drainage and flooding problems, this <br />section of the report was not authored by a <br />"lawyer. Further, it was not intended to be a <br />detailed legal discussion of detention storage. <br />General legal questions relating to detention <br />storage of runoff were merely discussed <br />without attempting to cite legal opinions or <br />cases. Court cases involving many of the issues <br />discussed have not been located; however, it is <br />known that local laws differ in their <br />application to many of the questions raised. <br />Instead of providing answers to legal <br />questions, an attempt was made to point out <br />some of the legal issues that may be <br />encountered in implementing facilities for <br />detention storage . of runoff. Many more <br />questions could be raised. It was concluded <br />that the legal aspects are too involved to be <br />generalized, too underdeveloped to cite <br />opinions and judgments, but too important to <br />neglect. <br />Because of the many uncertainties <br />involved, land developers contemplating the <br /> <br />18 <br />