drainage law

[johnhan76]

I am working on a project that has some difficult drainage issues. The project is a recreation facility (4 baseball fields, 2 tennis courts, 1 basketball court and a football field). The entire park is suurounded by a 4' high berm that impedes the natural drainage off site. Needless to say the water ponds for days in right field after heavy rains. The original owners of the park also own the land behind the berm. Building the berm was part of the deal back in the sixties. If the county built the berm then the landowners would sell. Now the county wants to fix the problem. Did the county make a deal that was against the law? How would I go about looking up the law.

 

[johnhan76]

by the way the landowners will not give the county a drainage easement now to fix the problem. there is an existing ditch on their property but they wont let the county use it.

 

[RWF7437]

Drainage law is a difficult and complex subject and varies from State to State. In the western states the laws are quite different than in the east. Your County Attorney may be the best person to talk to first.

 

[gibfrog]

I am not an attorney and I do not dispense legal advice. You should consult an attorney as previously advised. Here is my understanding of the issues as a Floridian Civil Engineer.

You wrote "The original owners of the park also own the land behind the berm. Building the berm was part of the deal back in the sixties. If the county built the berm then the landowners would sell. Now the county wants to fix the problem. Did the county make a deal that was against the law?" - No, the county just ceded a portion of the reparian rights in order to buy the land cheaper. Think of it as a reverse drianage easement.

You also write "by the way the landowners will not give the county a drainage easement now to fix the problem. there is an existing ditch on their property but they wont let the county use it." It seems like the county is just being cheap and you want to assist the county in violating the neighbor's property rights.

It is my humble experiance that everything has a price. Why doesn't the county offer to BUY a drianage easement or the downstream property at a fair price? Why doesn't the county just fill their property with 1'-2' of good clean coarse sand to hold the water? Why doesn't the county explore other options of solving their problem, like pumping the stormwater down the access road to a drainage outfall, or regrading the site to the access road drainage system?


Clifford H Laubstein
FL PE 58662

 

[LHA]

Allow me to cite a recent example from here in PA: PennDOT had blocked off one of its own cross-drain culverts for whatever reason decades ago. The landowner on the downgradient side built a golf course. Last year PennDOT decided to reopen its culvert, arguing (and proving) that it was not increasing runoff to this point, but merely utilizing an existing drainageway. No easement was ever established and none is currently proposed. The culvert was opened and remains opened and the golf course now has considerably more water traps than they had designed. The golf course owner is free to convey the water anyway it chooses, but it cannot force the obstruction of a naturally occurring watercourse.

It would be interesting to see the stipulations of this curious agreement johnhan76 cites...how much water is defined as required to be held back? What happens with any in excess of that? In other words, is the berm (which is really just a detention (or more accurately a retention) basin) defined by a release rate? If this rate is zero, what are the previously stipulated and mutually agreed upon consequences of violation...say during the 500-year storm, an event which all but the most stubborn stormwater engineers and professors admit has not yet been quantified, but only arrived at through extrapolation? Or, is the berm/detention basin defined by a) height of embankment, b) volume c) area, d) perimeter? Can any of these ever be altered, or are they all defined? Just saying someone agreed to build a berm is flimsy at best, and probably legally meaningless.

I find it hard to comprehend a legally-binding agreement which could prohibit naturally occurring runoff from being allowed to continue along its course. Of course, the berm is probably now concentrating other runoff to the right outfield, which I will assume is (just barely) the lowpoint. So the berm would have to be entirely removed to truly restore the natural drainage patterns.

To keep peace, the county in your scenario should probably just buy an easement off the adjoiner. Perhaps they could agree to pipe it to the ditch. But I am certain such a dubious agreement would be childsplay for a decent attorney to pick to shreds, if your client is up for a long, costly battle which will certainly create bad blood...and require lots of engineering calcs and testimony!!!

 

[proturf]

Is internal soil drainage (permeability) a factor with this site also or just the lack of outfall?

 

[landtech]

RE, Detention Pond Design

Illinois case law, from the ninteen sixties, says that when developing property the rainfall discharge from the undeveloped to the developed state should not be altered. That is neither increased or decreased.
In the event of all storms for which data is available the release rate from the detention pond should match the discharge from the land in its undeveloped state.
Most counties and municipalities in Northeastern Illinois have adopted STORMWATER MANAGEMENT GUIDELINES that significantly reduce pond discharge rates. This may be politically expedient in Urban built up areas for infill tracts but may be potentially disastrous where close and downstream undeveloped parcels that rely on wells are denied necessary rainwater to recharge aquifers thus requiring the resident to drill deeper and deeper wells to have adequate water supply.

I would appreciate comments and any information regarding case law in this regard.

REGARDS

john J. forkan

 

[dicksewerrat]

Who really owns the ditch on the other land? I have seen many ditches crossing private property that is not owned by the property owners but by some gov't entity. It may be that the county owns the ditch and the elected officials haven't got a clue yet.

 

[KRSServices]

I have an interesting point for you to ponder. Was the drainage ditch as pre-existing condition prior to the berm being constructed?

If so, then the County made a significant blunder by constructing the berm without accounting for drainage issues. However, the County may be in a position to argue that while in error by not initially installing a culvert (or some other drainage device) the landowner may not be in a legal position to block that drainage either.

Either way, it appears as though the neighbour has issues with the County. The County on the other hand has a number of options available to it and it will all come down to political wills and fortitude.

My advice:

1) Have a solicitor, experienced in municipal law, review the agreement and the issues (past and present.

2) Provide some drainage options for your client to review.

3) Interview the stubborn landowners and determine what their issues are and the reasons for not granting a drainage right of way.

4) Explore the option of expropriation the requisite lands for a drainage corridor.

KRS Services

http://www.krs-services.com