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Private Drainage in R/W

Private Drainage in R/W

Private Drainage in R/W

We have a case where 125 cfs flows overland to a private property.  The water enters the property from the public Right-of-Way.  However, 85% of the flow originates from the adjacent property.  That is, it flows from the adjacent property to the R/W and then enters the other private property and has caused flooding.

It seems to me that the two property owners need to correct the problem and not the Municipality.  It should be noted that this area is old and highly industrial.

Any thoughts on who would be responsible for managing the flow?

RE: Private Drainage in R/W

The first thing I would try to look at is the pre-development conditions.  Did the roadway "dam" and direct the R-O away from the original water course? Second, did any of private land owners regrade the land to change the water-course/overland flow? Once you answer questions like these then you will have a starting point.  It may also be difficult to get predevelopment data, so good luck!

RE: Private Drainage in R/W

Actually, in my opinion, pre development flow patterns will not be of any assistance.  The municipality, by virtue of the fact that it accepted the final lot grading (through building inspection, or even lot grading ordinances) of the offending owner.  The water was allowed to flow to the municipal infrastructure, which under most ordinances and bylaws, is the correct procedure.

Since this area is established, I am thinking that the second lot owner has redeveloped, or changed the use of the property or did not object to the flows for a time due to the fact that the land was either vacant and not used.  The land could have been recently purchased and the previous owner did not object.  Either way, the municipality has directed the water to flow onto private lands without (I'll wager) an easement or drainage R/W.  If the natural drainage course is through the property it will be easier to obtain or even expropriate a R/W.  If the drainage course exists due to post development landscaping or in conformance to an old lot grading plan registered or approved by the municipality, it could get very costly.

Either way, it boils down to the municipality's problem to resolve, not the landowners.  Sorry.

KRS Services

RE: Private Drainage in R/W

You are correct that the private property development has changed.  The owner (or previous owner) constructed an addition to an old warehouse to serve as an office and garage.  This building is essentially in a sump.  A significant portion of the water is generated from runoff of the warehouse and building roof.

Because the area is very old (about 100 years) and industrial it is likely that the problem evolved in such a way that it did not inconvience anyone until the current owner.  However, I maintain that the City did not cause the problem and is not soley responsible to correct it.

A river is near the property and it is possible that the natural drainage would go through his property.

RE: Private Drainage in R/W


I didn't make the rules, but been there - done that.  If the water was firstly allowed, directed or otherwise channelled onto or into the municipal infrastructure, even if it is a ditch, from that point onward, it is a municipal responsibility.  It does not really matter as to the origin of the water, roof, sump or otherwise.

The critical fact was that prior to the reconstruction, the municipality had allowed any other water to flow from the road and then directed it onto the property in question.  Albeit, the flow was much smaller.  Now that the flows are considerable or at least more noticable, the property owner is objecting.  My advice is for you (assuming an employee of the municipality) to begin to proactively seek a solution, maybe even suggest a land deal, before the landowner seeks legal counsel.  Under no circumstances should you take the "it's not our responsibility" stance, because it will only cost the municipality more in the end, and I'm not referring strictly to cost.  In my career I was challenged several times in matters more complicated than this, and my experience dictates my advice to meet with the landowner and seek a resolution, before he gets angry and takes steps further....such as appearing as a delegation to the municipal Council after seeking legal advice.  There will be little or no negotiation room at that point.  Good luck to you and pleasssse advise as to how it all shakes out in the end.

KRS Services

RE: Private Drainage in R/W

You can determine what the flows whould have been under various rainfall conditions pre and post development of either lot.  Ultimately though, you should be discussing this with the city attorney before having any discussions with the land owner about responsibility.

RE: Private Drainage in R/W

KRS I appreciate your perspective.  You are correct that I work for the municipality.  This drainage study was performed 10 years ago and the property owner was notified that the problem originates "off-site", i.e., on the adjacent property.  He has taken no action until now.  His action now is to begin contacting the city again.

To fix the problem would require conveying the water to a suitable outfall.  From what you are saying the city would have bear the full burden of that even though the situation is primarily caused by private owners.  The City did recommend to this owner to seek an engineer to design a system.  Please note that I began recently after 15 years as a consultant.  

RE: Private Drainage in R/W


Thank you for clarifying the situation a little more for me.  I am going to put on my Director of Operations hat and describe my approach that I would take on this problem.

Firstly, check with the planning and building departments to review the development of the offending property.  Hopefully there is a generic text which relates to drainage and/or sump pump flow on the surface.  Some communities prohibit overland flows and specify that the sump must pump directly into the storm system, however, most are silent.  Also check to see whether there were any building or development conditions specific to the sump pump or landscaping.

Secondly, I would check with the planning/building departments to ascertain the municipality's policys and statutes relative to overland drainage.  Most will specify generic references and responsibilities.  Some will be drafted after a significant event has occurred, and those tend to be the most restrictive.  This may help you in resolving the problem or at least give you some teeth with respect to funding splits.

Thirdly, the drainage study could either help or hinder.  If it was known to be a problem and the municipality did not adhere or move with some of the recommendations, then it may hurt you a bit.  If however, the recommendations were adopted in the form of a policy or bylaw, then one or both of the land Owners may be responsible, particularly if the development occurred post-report.

Forthly, I would investigate the possibility of obtaining a small easement through the landowner's property and see if overland drainage is a possibility.  One mechanism that you may wish to investigate with the municipal solicitors would be to expropriate a narrow right of way, even perhaps straddling both property lines.  Can some minor curbing or ditching resolve the issue?

I hope this helps a bit.


KRS Services

RE: Private Drainage in R/W

I read through this and see so many ways it can go.  I have a little problem with the concept that as soon as water enters a municipal right-of-way it becomes "their" water.  While in some cases that can be true, the drainage study of ten years ago would have, or should have, included a history of when the offending development occured and what the drainage requirements were at the time the addition was built.

Was there a drainage plan reviewed and approved for the addition?

Was there a problem before the addition was built?

If plans were submitted and approved, were they built to the plans?

How many years have elapsed while these conditions have prevailed?

It could also be that the downstream property owner has looked at development/redevelopment of his property and his engineer has shown him how much it will cost to deal with this off-site water and maybe suggested it could be cheaper to have the municipality deal with it.

It's difficult to say, but I really think, as in many cases, the history of the problem will help dictate the ultimate responsibility.

And also, as in many cases, shared responsibility and a shared solution offers the best outcome.

RE: Private Drainage in R/W

I agree that the key to determining who is responsible is to determine how the situation evolved.  However, in older (especially industrial) areas this is not easily determined.  In a few short months I have run into several cases like this.

The questions always seem to be

Was there a building permit for the property?
Was the lot constructed according to the approved plan?
Was there a natural channel before the development?

Ptmoss, I agree that the best avenue is a cooperative effort with the property owner.  However, this is almost always not possible.  The municipality generally will not change the infrastructure to benefit one property.  This is done under a Developer's Agreement paid for by the property owner and maintained by municipality.

Unfortunately, these questions are often the area of lawyers and not engineers.

RE: Private Drainage in R/W

"Unfortunately, these questions are often the area of lawyers and not engineers"

Boy, you got that one right!  Whenever I get involved in drainage issues that involve more than one property, whether it's a neighboring property impacting my client or vice versa, one of the first things I get straight is whether they have an attorney or, if not, tell them they might need one and give them a couple of names.

Of course, if we can get the municipality to fix our problems with taxpayer money.....

Good luck with it!


RE: Private Drainage in R/W


I think you are on the right track.  All too often I have found that in the end, after permits or the development agreements are thoroughly reviewed, the developer usually has failed to execute or undertake a condition of the instrument, followed by the municipality not enforcing the instrument either!  The result is a situation you have described and after the lawyers have extracted their pound of flesh, it usually become either a municipal responsibility or a cost share between the municipality and the land owner/developer.  Getting back to your original thread however, if there is a development agreement in place, then the offending development may have had obligations to say, undertake a stormwater and drainage analysis to determine if there are impacts resulting from the proposed development/addition.  If such language existed, there there is certainly language whereby actions for remedy are to be prescribed by the municipality.  It gets ugly from there and may solely depend on the language.

I have been in these slugfests more times than I care to count and may be able to provide some assistance to you from the perspective of a municipal director, rather than a consultant.  Quite often I have found a few clauses, that when married, provide quite an effective tool to get the developer to the table to provide settlement.  If you feel that this could be of benefit, feel free to contact me through my little webpage.

KRS Services

RE: Private Drainage in R/W

I was in afew of these disagreements about 'who's water is it?, etc. Since you as the municipality have a study, design a solution. Pipe, ditch whatever. As the municipality you can assess public improvements to benefitiing properties, roads, bridges and STORM SEWERS. Build it, assess the proerties. Then the lawyers can come in. But the improvement is in place and providing a benefit. Up front communication with the property owners may result in their admission of relative responsibility. Since most public projects take a large amount of time from inception of the idea to construction, there will be ample opportunity for dialogue. Good Luck.

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