Transcription of DRAINAGE LAW - California
1 DRAINAGE CRITERIA MANUAL (V. 1) DRAINAGE LAW DRAINAGE LAW CONTENTS Section Page DL- SUMMARY OF CURRENT GENERAL PRINCIPLES OF DRAINAGE AND FLOOD CONTROL Legal GENERAL PRINCIPLES OF DRAINAGE Private Common Enemy Civil Law Reasonable Use Municipal Planning DRAINAGE Construction, Maintenance, and Repair of DRAINAGE Municipal Liability for Acts of Acts or Omissions of Municipal Officers, Agents, or Municipal Liability for Acts of Personal Liability of Municipal Officers, Agents, and DRAINAGE IMPROVEMENTS BY A LOCAL Constitutional Statutory Statutes Municipal Powers Public Property and Public Improvements Special Improvement Districts in Public Improvements Improvement Districts in Sewer and Water Systems Statutes Public Improvements Sewer and Water County Public Improvement Public Improvements Local Improvement Districts Flood Control Control of Stream Conservancy Law Flood DRAINAGE Statutes Colorado Land Use DRAINAGE of State Water Conservation Board of State Canals and Regulatory Impairment of Property Intergovernmental Urban DRAINAGE and Flood Control
2 FINANCING DRAINAGE Capital Local 06/2001 DL-i Urban DRAINAGE and Flood Control District DRAINAGE LAW DRAINAGE CRITERIA MANUAL (V. 1) Special Service Developer s The Taxpayers Bill of Rights, Article X, Section 20, Colorado Water Activities Enterprise Statute FLOODPLAIN Floodplain Constitutional Statutory Grants of Court Review of Floodplain Restriction of Health Determination of Flood Flood Warning Systems and SPECIAL Irrigation Dams and Detention Water Professional Photographs Photograph DL-1 Using a natural floodplain, even with a wetland involved, represents sound engineering in concert with established Colorado DRAINAGE DL-ii 06/2001 Urban DRAINAGE and Flood Control District DRAINAGE CRITERIA MANUAL (V.)
3 1) DRAINAGE LAW SUMMARY OF CURRENT GENERAL PRINCIPLES OF DRAINAGE AND FLOOD CONTROL LAW Introduction DRAINAGE law not only has its basis in law made by the courts and the legislature, but also relies to a large extent on the DRAINAGE facts that exist in each case. Therefore, a party with the most reliable facts and information will have a distinct advantage in court. Similarly, DRAINAGE engineering and design revolves around DRAINAGE law as well as the natural laws of gravity. This chapter deals with the general principles of DRAINAGE law along with local government DRAINAGE actions, financing, floodplain management, and special matters. This chapter is meant to provide an outline of the general principles of Colorado DRAINAGE law for the engineer and agency official.
4 It is not meant to serve as a substitute for a lawyer s opinions, though this chapter may be of interest to practicing attorneys. In using this chapter of the Manual, the reader should be familiar with the entire Manual, and should pay particular attention to the POLICY and PLANNING chapters. In the POLICY chapter, 12 principles have been stated, with which the reader of this chapter should be familiar. Similarly, the following legal principles are summarized below for ready reference. Photograph DL-1 Using a natural floodplain, even with a wetland involved, represents sound engineering in concert with established Colorado DRAINAGE law. Legal Principles 1. The owner of upstream property possesses a natural easement on land downstream for DRAINAGE of surface water flowing in its natural course.
5 The upstream property owner may alter DRAINAGE 06/2001 DL-1 Urban DRAINAGE and Flood Control District DRAINAGE LAW DRAINAGE CRITERIA MANUAL (V. 1) conditions so long as the water is not sent down in a manner or quantity to do more harm to the downstream land than formerly. Bittersweet Farms, Inc. v. Zimbelman, 976 326 (Colo. App. 1998). 2. For purposes of determining liability in a negligence action, the duty of a public entity shall be determined in the same manner as if it were a private party. Leake v. Cain, 720 152 (Colo. 1986). 3. A natural watercourse may be used as a conduit or outlet for the DRAINAGE of lands, at least where the augmented flow will not tax the stream beyond its capacity and cause flooding of adjacent lands.
6 Ambrosio v. Pearl-Mack Construction Co., 351 803 (Colo. 1960). 4. Ditch corporations that own ditches owe a duty to those property owners through which their ditches pass to maintain their ditches using ordinary care so as to prevent damage to adjoining real property. Oliver v. Amity Mut. Irrigation Co., 994 495 (Colo. App. 1999). 5. Construction or enlargement of jurisdictional dams or reservoirs is subject to approval by the Colorado State Engineer, which includes consideration of requiring their spillways to be capable of passing the inflow design flood generated by 100 percent of the probable maximum precipitation. A jurisdictional dam is defined as a dam that impounds water above the elevation of the natural surface of the ground creating a reservoir with a capacity of more than 100 acre-feet or creating a reservoir with a surface area exceeding 20 acres at the high waterline or exceeding 10 feet in height measured vertically from the elevation of the lowest point of the natural surface of the ground where that point occurs along the longitudinal centerline of the dam up to the flow line crest of the emergency spillway of the dam.
7 Rules 4 & 5 of the Department of Natural Resources, Division of Water Resources, Office of the State Engineer, Rules and Regulations for Dam Safety and Dam Construction. 6. The boundaries of the floodplain should be accurately determined and based on a reasonable standard. Mallett v. Mamarooneck, 125 2d 875 ( 1955). 7. Adoption of a floodplain regulation to regulate flood-prone areas is a valid exercise of police power and is not a taking as long as the regulation does not go beyond protection of the public s health, safety, morals, and welfare. Hermanson v. Board of County Commissioners of Fremont, 595 694 (Colo. App. 1979). 8. The adoption by a municipality of floodplain ordinances to regulate flood-prone areas is a valid exercise of police power and is not a taking.
8 Morrison v. City of Aurora, 745 1042 (Colo. App. 1987). 9. A zoning ordinance is not unconstitutional because it prohibits a landowner from using or developing DL-2 06/2001 Urban DRAINAGE and Flood Control District DRAINAGE CRITERIA MANUAL (V. 1) DRAINAGE LAW his land in the most profitable manner. It is not required that a landowner be permitted to make the best, maximum or most profitable use of his property. Baum v. City and County of Denver, 363 688 (Colo. 1961) and Sundheim v. Board of County Commissioners of Douglas County, 904 1337 (Colo. App. 1995). 10. The safest approach to avoiding liability in regard to DRAINAGE and flood control improvements is to assume that the defense of a design error will not protect a governmental entity from a lawsuit and liability for injury to property or person.
9 Scott v. City of Greeley, 931 525 (Colo. App. 1996) and 24-10-106 (1)(e) and (f) 11. A dangerous condition constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility. 24-10-103 12. Under the Colorado Governmental Immunity Act (CGIA), a DRAINAGE and flood control facility is considered to be a sanitation facility and thus not protected by the defense that the facility caused damage solely because the design of the facility was inadequate.
10 24-10-106 (f) and 24-10-103 and Burnworth v. Adams County, 826 368 (Colo. App. 1991). 13. Under the CGIA, a governmental entity will be liable for the negligent operation and maintenance of any DRAINAGE and flood control facility. 24-10-106 (f) and 24-10-103 and Burnworth v. Adams County, 826 368 (Colo. App. 1991). 14. Under the CGIA, a governmental entity will not be liable for its failure to upgrade, modernize, modify, or improve the design or construction of a DRAINAGE or flood control facility. 24-10-103 (1) 15. In imposing conditions upon the granting of land-use approvals, no local government shall require an owner of private property to dedicate real property to the public or pay money to a public entity in an amount that is determined on an individual and discretionary basis, unless there is an essential nexus between the dedication or payment and a legitimate local government interest and the dedication or payment is roughly proportional both in nature and extent to the impact of the proposed use or development of such property.
