The materials contained in this chapter are not intended to
be an exhaustive presentation of each area of law which is discussed.
The purpose is to familiarize the design professionals with these
areas to enable them to better perform engineering duties and tasks
contained in this title. These materials should not be used in place
of a consultation with an attorney and no liability is being assumed
with respect to the use of these materials for such purpose.
An important lesson which has been learned is that stormwater
does not respect arbitrary jurisdictional boundaries. Stormwater does
not respect the various rights and liabilities of adjacent land owners
as it flows through depressions, gullies, and washes seeking refuge.
However, engineers are presented with the enormous task of attempting
to control the drainage of water while at the same time maintaining
the integrity of natural flow paths and existing legal relationships
arising from land ownership. The goal of maintaining both natural
flow paths and existing legal relationships is not easily achieved.
However, this goal can be more easily achieved if the engineer is
familiar with the basic legal framework against which legal relationships
will be adjudicated.
This chapter includes a brief description and citing of applicable
State and local laws. The contents rely heavily on a similar section
included in the Colorado Floodplain and Stormwater Criteria Manual
prepared for the Colorado Water Conservation Board. The reader is
encouraged to read the Drainage Law section of the UD&FCD’s
Drainage Criteria Manual, which represents the genesis for the update
by the Colorado Water Conservation Board.
The user of this manual is encouraged to check the applicability
of the laws and court cases included herein at the time of its use.
Applicable statutes, ordinances, court cases and other local laws
change with time. The materials contained herein should be reviewed
periodically and updated as deemed appropriate.
(Res. 40-08 (Appx. A § A101), 3-19-08)
It is important for the engineer to be aware of the development
of the historical principles and theories involved in drainage law.
There are three common early doctrines which were followed in the
United States: The doctrines were the common enemy doctrine, civil
law rule, and the rule of reasonable use.
(a) The Common Enemy Doctrine.
The common enemy doctrine
is a harsh rule which is still followed in some states. Stated in
its extreme form, the common enemy doctrine provides that as an incident
to property use each landowner has an unqualified right, by operations
on the land, to fight off surface waters as necessary without being
required to take into account the consequences to other land owners,
who have the duty and right to protect themselves as best they can.
Surface water was thus regarded as a common enemy which each
property owner could fight off or control by any means such as retention,
diversion, repulsion or altered conveyance. Thus, there was no cause
of action even if some injury occurred to the adjoining parcel.
All jurisdictions originally following this harsh rule have
either modified the rule or adopted the civil law rule or reasonable
use.
(b) Civil Law Rule.
Courts later recognized the rule of
water drainage law which is basically diametrically opposed to the
common enemy doctrine. The civil law rule recognizes a natural servitude
for natural drainage between adjoining lands, so that the lower owner
must accept the surface water which naturally drains onto its land,
but on the other hand, the upper owner has no right to change the
natural system of drainage to increase the burden on the lower parcel.
This rule caused problems with allowing development because virtually
almost any development has a tendency to increase the flow either
in quantity or velocity.
According to the civil law rule, if the quantity or velocity
of water flow were increased, the natural flow on the downstream property
would be changed and would be in violation of the civil law rule.
Thus, with the evolution of drainage law the courts sought to modify
the law to consider the competing interests of adjoining land owners
and allocate the burden of risk associated with development.
The civil law rule analyzes drainage problems in terms of property
law concepts such as servitudes and easements. It did not consider
tort law analysis of what is reasonable.
(c) Reasonable Use Rule.
The rule of reasonable use was
developed as an alternative between the civil law rule and the common
enemy doctrine. The courts attempted to balance the hardships created
in attempting to control surface waters and relevant factors in the
relationship between the competing rights/liabilities of adjoining
land owners.
The rule was apparently developed to provide flexibility in
avoiding harsh results which often occurred in applying both the common
enemy doctrine and the civil law rule to various factual situations.
Under the reasonable use rule, a property owner can legally
make reasonable use of its land, even though the flow of surface waters
is altered and causes some harm to others. However, liability occurs
when the property owners’ harmful interference with the flow
of surface water is “unreasonable.” A balancing test is
utilized to determine whether a landowner’s use of his property
is unreasonable. The analysis involves three basic questions:
(1) Was there reasonable necessity for the property owner to alter the
drainage to make use of his land?
(2) Was the alteration done in a reasonable manner?
(3) Does the utility of the actor’s conduct reasonably outweigh
the gravity of harm to others?
(Res. 40-08 (Appx. A § A102), 3-19-08)
This section has been reproduced from the Colorado Floodplain
and Stormwater Criteria Manual prepared for the Colorado Water Conservation
Board.
(a) The owner of upstream property possesses a natural easement on land
downstream for drainage of surface water flowing in its natural course.
The upstream property owner may alter drainage 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 P.2d 326 (Colo. App. 1998).
(b) 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 P.2d 152 (Colo. 1986).
(c) 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.
Ambrosio v. Pearl-Mack Construction Co., 351 P.2d 803 (Colo. 1960).
(d) 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 P.2d 495 (Colo. App. 1999).
(e) 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. Rules 4 and 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.
(f) The boundaries of the floodplain should be accurately determined
and based on a reasonable standard. Mallett v. Mamarooneck, 125 N.E.
2d 875 (N.Y. 1955).
(g) 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 P.2d 694 (Colo. App. 1979).
(h) 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. Morrison v. City of Aurora, 745 P.2d 1042 (Colo. App. 1987).
(i) A zoning ordinance is not unconstitutional because it prohibits a
landowner from using or developing 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 P.2d 688 (Colo. 1961) and Sundheim v. Board
of County Commissioners of Douglas County, 904 P.2d 1337 (Colo. App.
1995).
(j) 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. Scott v. City of Greeley, 931 P.2d
525 (Colo. App. 1996) and §
24-10-106(1)(e) and (f), C.R.S.
(k) 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, C.R.S.
(l) 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. §§
24-10-106 (f) and
24-10-103, C.R.S. and Burnworth v. Adams County, 826 P.2d
368 (Colo. App. 1991).
(m) 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, C.R.S. and Burnworth v. Adams County, 826 P.2d
368 (Colo. App. 1991).
(n) 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) C.R.S.
(o) 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. This law does not
apply to any legislatively formulated assessment, fee, or charge that
is imposed on a broad class of property owners by a local government.
§
29-20-203 C.R.S.
(p) Public entities that own dams or reservoirs are not subject to strict
liability for damages caused by water escaping from their dams or
reservoirs. Further, those public entities have no duty to ensure
that waters released from an upstream reservoir because of a dam failure
would be contained by their facilities or would bypass those facilities
without augmentation. Kane v. Town of Estes Park, 786 P.2d 412 (Colo.
1990).
(q) A professional engineer is required not only to serve the interests
of his or her employer/client but is also required, as his or her
primary obligation, to protect the safety, health, property, and welfare
of the public. Rule I 2 of The Colorado Rules of Professional Conduct
of the State Board of Registration for Professional Engineers and
Professional Land Surveyors.
(r) Where a municipality imposes a special fee upon owners of property
for purposes of providing a service and where the fee is reasonably
designed to defray the cost of the service provided by the municipality,
such a fee is a valid form of governmental charge within the legislative
authority of the municipality. Bloom v. City of Fort Collins, 784
P.2d 304 (Colo. 1989).
(Res. 40-08 (Appx. A § A103), 3-19-08)
Local governments bear the greatest responsibility for stormwater
management. They can best determine the community needs and approaches
through local regulation. Local governments, however, are constrained
by their resources and the powers permitted them.
Various legal methods for managing stormwaters are authorized
by enabling legislation. Zoning ordinances and subdivision regulations
are the most important methods available to local governments, followed
by building regulations and building codes. Stormwater management
may also be carried out by drainage districts, local governments having
home rule powers, such as the cities of Grand Junction and Fruita,
and by government agencies having authority to regulate floodplains.
The inherent police powers of a municipality enable it to enact
ordinances that provide for the protection of public’s health,
safety, morals, or general welfare. These powers are exercised when
specific ordinances are enacted to address drainage issues.
Statutory powers also grant municipalities, counties, and State
governments powers to provide directly or through special districts
and authorities to construct, operate, and maintain a variety of public
improvements including streets and sidewalks, water and sewage, storm
drainage, and other facilities affecting stormwater quality and development
in flood-prone areas.
(Res. 40-08 (Appx. A § A104), 3-19-08)
(a) Municipalities.
(1) §
31-23-301, C.R.S. – Authorizes municipalities
to adopt regulations to promote public health, safety and general
welfare of its citizenry.
(3) §
31-15-711(1)(a), C.R.S. – Allows municipalities to engage in activities
to alter or change the natural channel of watercourses.
(4) §§
31-25-501,
31-25-508, C.R.S. – Authorizes public improvements –
Special improvement districts in municipalities.
(5) §§
31-25-601,
31-25-604, C.R.S. – Allows municipalities to set up improvement
districts with taxing powers for the purpose of constructing public
improvements.
(6) §§
31-35-401,
31-35-417,
31-35-401(6), C.R.S. – Allows municipalities to operate, maintain
and finance facilities to include waters from storm, flood, or surface
drainage.
(7) City of Fruita Land Use Code (Title 17) Section 17.45 –
Floodways, Floodplains, Drainage and Erosion.
(b) Counties.
(1) §§
30-20-401,
30-20-402, C.R.S. – Authorizes County to construct water and sewerage
facilities for County’s own use or private and public users.
(2) §§
30-20-501,
30-20-504, C.R.S. – Authorizes creation of public improvement districts
within any county as taxing units and for the purpose of implementing
public improvements.
(4) §§
30-30-101,
30-28-105, C.R.S. – Authorizes the board of county commissioners
of each county for flood control purposes only.
(5) §§
37-20-101,
37-33-109, C.R.S. – Authorizes owner of agricultural lands subject
to drainage problems from the same general system to petition the
board of county commissions to set up a drainage district.
(6) Mesa County Land Development Code.
(ii)
Section 7.12, Irrigation Canals and Laterals.
(iii)
Section 7.13, Floodplain Regulations.
(c) State.
(1) §§
24-65-101,
24-65-105, C.R.S. – Creates the Colorado Land Use Commission with
authority to assist counties and municipalities in developing guidelines
for developing land uses and construction control within designated
floodways.
(2) §
29-1-204.2, C.R.S. – Allows for establishment
of a drainage authority by any combination of municipalities, special
districts, or other political subdivisions by entering into a contract
with each other.
(3) §§
37-60-101,
37-60-106, C.R.S. – Creates Colorado Water Conservation Board for
the purpose of water conservation and flood prevention. The board
has the duty to “designate and approve storm or floodwater runoff
channels or basins, and to make such designations available to legislative
bodies of cities and incorporated town, … and counties of the
state.” (§
30-60-123, C.R.S.)
(4) §§
30-28-111,
31-23-301, C.R.S. (§
24-65.1-403, C.R.S.) – Provides that no floodplains shall be designed
by any local government until such description has been first approved
by the Colorado Water Conservation Board.
(5) §
29-1-201, C.R.S. – In 1974, Section
2 of Article VI of the State Constitution was amended to permit and encourage improvements to make the most efficient and effective use of their powers and responsibilities by cooperating and contracting with other governments.
(6) Water Quality Control Commission Regulations 93 (5CCR 1002-93, last
date May 31, 2004) and 94 (SCR 1002-94, last date May 31, 2004).
(d) Federal (NPDES).
On November 16, 1990, the EPA issued
regulations on the control of stormwater from municipal and industrial
stormwater discharges. The National Pollutant Discharge Elimination
System (NPDES) includes stormwater management and discharge requirements
and regulations, and is a part of the Federal Clean Water Act. The
stormwater management regulation was developed to reduce the amount
of pollutants entering streams, lakes and rivers as a result of runoff
from residential, commercial and industrial areas. Regulations are
found in
40 CFR
122.26, and are industry specific. Mesa County, City of Grand Junction
and Grand Junction Drainage District have obtained permits to discharge
stormwater under the Colorado Discharge Permit System (COR–090031).
The County’s CDPS Phase II Discharge Permit includes requirements
to control erosion and sedimentation from construction activities.
(Res. 40-08 (Appx. A § A105), 3-19-08)
In situations in which an irrigation ditch intersects a drainage
basin, the irrigation ditch does not have to take underground waters
diverted by a tile drain. However, the surface drainage must be accepted
if the irrigation ditch is constructed in such a way that surface
water would naturally flow into it. Clark v. Beauprez, 151 Colo. 119,
377 P.2d 105 (1962) (between private parties, the owner of an irrigation
ditch can prevent an upstream landowner from diverting waters from
their natural course into the irrigation ditch); City of Boulder v.
Boulder and White Rock Ditch & Reservoir Company, 73 Colo.
426, 216 P. 553 (1923) (where an irrigation ditch was constructed
in a natural drainageway into which surface water would naturally
flow, the ditch owners could not complain merely on the grounds that
the city, in building storm sewers, collected the surface water and
accelerated its flow and precipitated or discharged it at some particular
point in the line of the ditch instead of spreading it out at different
places of entrance).
In urbanizing areas, the conflict between the natural flow of
surface water and irrigation ditches which bisect many drainage basins
continues to be a difficult condition to resolve, taking into consideration
the rights and liabilities of upstream property owners and irrigation
ditch owners. Innumerable natural drainageways have been blocked by
irrigation ditches, although they were constructed long before the
basin became urbanized. This special area of urban drainage points
to the need for good land use requirements, as well as identification
of potential problem areas.
§
7-42-108, C.R.S. provides in part that:
Every ditch corporation organized under the provisions of law
shall be required to keep its ditch in good condition so that the
water shall not be allowed to escape from the same to the injury of
any mining claim, road, ditch, or other property.
This provision of Colorado law was recently interpreted in the
case of Oliver v. Amity Mut. Irrigation Co., 994 P.2d 495 (Colo. App.
1999). In this case, the ditch company was being sued for damages
to property resulting from a break in the bank of the ditch company’s
ditch. The court held that the statute imposed a duty of ordinary
care, such as a person of average prudence and intelligence would
use, under like circumstances to protect his or her own property.
The court went on to state that, in order for the ditch company to
fulfill its statutory duty, it had to prevent erosion of the ditch
bank, keep the ditch free of sediment and debris, and control the
amount of water flowing through its ditch, among other things, keeping
the spillway at the intersection of its ditch and another free of
obstructions. Finally, the court concluded that, although a ditch
company is not liable for damages caused solely by an act of God,
the company may not escape liability if its negligence contributed
to or cooperated with an act of God to cause the damage.
In conclusion, those 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 the adjoining real
property.
(Res. 40-08 (Appx. A § A106.1), 3-19-08)
In the Colorado Supreme Court case of Roaring Fork Club, L.P.
v. St. Jude Company 36 P. 3d 1229 (Colo. 2001) the Court recognized
that as early as Colorado’s territorial legislatures, legislators
recognized that our arid climate required the creation of a right
to appropriate and convey water across the land of another so that
lands not immediately proximate to water could be used and developed.
Because of this importance of ditches, the holder of ditch easements
has the right to inspect, operate, maintain, and repair the ditch.
In addition, the owners of land upon which these ditches are located
cannot damage the ditch or unreasonably inhibit the owner’s
ability to maintain the ditch. Thus, the owner of a ditch may go on
the land of another for the purpose of cleaning out the waterway and
making repairs. Additionally, the Colorado legislature has required
ditch owners to undertake a host of duties in relation to ditch upkeep.
The rights of ditch owners are so dominant that the Court held that
the owner of property burdened by a ditch easement has no right to
move or alter the easement without consent of the benefited owner
unless he first obtains a declaration of a court that such alterations
will cause no damage to the benefited owner.
(Res. 40-08 (Appx. A § A106.2), 3-19-08)
Stormwater runoff is a major nonpoint source of water pollution.
In urbanizing areas, where land-disturbing activities are numerous,
stormwater washes soil and sediment into surface waters causing increased
levels of turbidity and eutrophication, threatening fish and wildlife,
and blocking drainage. In developed areas, runoff carries with it
the pollutants from surfaces over which it runs, including oil, litter,
chemicals, nutrients and biological wastes, together with soils eroded
from downstream channels of the flow.
It is reasoned that water quality control should be an integral
part of any drainage or stormwater management program, since stormwater
management techniques are often consistent with water quality objectives.
However, this special area, as related to urban drainage, has not
been researched adequately enough so as to provide the facts upon
which a cost-effective approach could integrate water quality objectives
with plans for surface drainage improvements. See City of Boulder
v. Boulder and White Rock Ditch & Reservoir Company, 73 Colo.
426, 216 P. 553, 555 (1923).
(Res. 40-08 (Appx. A § A106.3), 3-19-08)
In the case of BRW, Inc. et al. v. Dufficy & Sons,
Inc. 99 P. 3d 66 (Colo. 2004), the Colorado Supreme Court addressed
the economic loss rule as it applies to contractual relationships.
It holds that courts must focus on the contractual relationship between
and among the parties when there is a claim of economic loss as a
result of a construction contract. Thus it is not enough to simply
allege negligence in a construction claims case. There must be a contractual
relationship between the parties in order to sustain a claim based
upon an economic loss. The Court reasoned that the economic loss rule
applies in construction cases in order to permit the court to enforce
expectancy interests of the parties so that they can reliably allocate
risks and costs during their bargaining and to encourage the parties
to build the cost considerations into the contract because they will
not be able to recover economic damages in tort. Therefore, it should
be assumed that in order to successfully pursue a claim in economic
loss in a construction contract, there must be a contractual relationship,
either express or implied, between the parties and the provisions
of that contract must address the obligation that is being alleged
was breached.
(Res. 40-08 (Appx. A § A106.4), 3-19-08)
Although infrequently raised, the issue of the impact of drainage
improvements on existing water rights in Colorado should be considered,
evaluated and addressed as part of any drainage improvement planning.
The Water Right Determination and Administration Act of 1969 provides
remedies for water right owners who are impacted by the action of
others.
In the case of The Board of County Commissioners of the County
of Arapahoe et al. v. Crystal Creek Homeowners’ Association
et al. 14 P. 3d 325 (Colo. 2000) the Colorado Supreme Court affirmed
its earlier holding in the case of Pueblo West Metro. Dist v. Southeastern
Colo. Water Conservation Dist. 689 P. 2d 594 that the capture and
storage of flood waters may be a beneficial use underlying an appropriation
of water. Therefore, these cases confirm that the capture and storage
of flood water is a permitted use under the statutory water rights
scheme in Colorado thus establishing the need to obtain a recognized
water right if a drainage or flood control facility will impact the
availability of water and thus other water rights holders.
(Res. 40-08 (Appx. A § A106.5), 3-19-08)
In the case of Patzer v. City of Loveland 2003 Colo. App. LEXIS
1506 (Colo. App. 2003), the City of Loveland was sued by a construction
company who had received a building permit for a residence based upon
its engineer’s report. After the residence was completed, the
City refused to issue a certificate of occupancy due to the fact that
the City’s engineering report, completed after the building
permit was issued, showed that the residence encroached into the 100-year
floodplain. Although the City eventually issued the certificate of
occupancy, the Court held that the issuance of a building permit is
an exercise of the City’s police powers which include the regulation
of flood control. Further, that a building permit contains no agreement,
consideration, or promise that a certificate of occupancy would be
issued. Therefore, the City could not be held liable for breach of
contract. Finally, the Court went on to hold that the Governmental
Immunity Act protected the City from a claim of negligent misrepresentation.
Thus, the construction company received no relief from the Court.
(Res. 40-08 (Appx. A § A106.6), 3-19-08)
In the case of Marshall B. Krupp, et al. v. The Breckenridge
Sanitation District, et al. 19 P. 3d 687 (Colo. 2001), the Court was
asked to address Colorado’s regulatory takings statute and the
statute’s explicit declination to apply the Nollan/Dolan tests
to “any legislatively formulated assessment, fee, or charge
that is imposed on a broad class of property owners by a local government.”
The Krupp case arose when the Breckenridge Sanitation District legislatively
assessed a fee on all building projects within the district. The Krupps
challenged the assessment of the fee on their new residential townhouse
project on the basis that it amounted to an unconstitutional taking
of property. The Colorado Supreme Court held that a legislatively
created, generally applicable service fee is not subject to a takings
analysis under Nollan/Dolan. Therefore, once a fee such as that in
this case is assessed by way of a legislative act of the governmental
entity it virtually cannot be challenged as being unconstitutional.
(Res. 40-08 (Appx. A § A106.7), 3-19-08)
In the Colorado Supreme Court cases of City of Colorado Springs
v. Powell 48 P. 3d 561 (Colo. 2002) and in the companion case of City
of Longmont v. Henry-Hobbs 50 P. 3d 906 (Colo. 2002) the Court held
that irrigation and drainage ditches used as part of a stormwater
drainage system are considered “sanitation facilities”
under the Colorado Governmental Immunity Act. Since those ditches
are covered under the CGIA, a governmental entity that uses those
ditches for drainage or flood control will be held legally responsible,
within the limits of the CGIA, for their negligent design or negligent
maintenance. In a final holding of the Court, the Court clearly stated
that it was not holding that all irrigation ditches are sanitation
facilities.
In the 2003 session of the Colorado General Assembly, House
Bill 03-1288 was passed and signed by the Governor. That Act specifically
addressed the City of Colorado Springs and City of Longmont cases
and noted that those cases may have significantly expanded the potential
liability of governmental entities providing utility services to the
public. The Act specifically redefined the word “maintenance”
to mean “the act or omission of a public entity or public employee
in keeping a facility in the same general state of repair or efficiency
as initially constructed or in preserving a facility from decline
or failure. ‘Maintenance’ does not include any duty to
upgrade, modernize, modify, or improve the design or construction
of a facility.” The purpose of this section of the Act was to
clarify that governmental entities do not have an affirmative duty
to improve the design or construction of a facility.
The Act went on to redefine what a “public sanitation
facility” is and is not. In describing what a “public
sanitation facility” is not, the Act reads as follows: “‘Public
sanitation facility’ does not include: a public water facility;
a natural watercourse even if dammed, channelized, or containing stormwater
runoff, discharge from a storm sewer, or discharge from a sewage treatment
plant outfall; a drainage, borrow, or irrigation ditch even if the
ditch contains stormwater runoff or discharge from storm sewers; a
curb and gutter system; or other drainage, flood control, and stormwater
facilities.” Therefore, after this Act became effective on July
1, 2003, governmental entities were again protected from liability
under the CGIA for negligent design and maintenance of a drainage
facility which includes an irrigation ditch.
(Res. 40-08 (Appx. A § A106.8), 3-19-08)
§
37-89-101, C.R.S. was amended in the 2001 session of the Colorado General
Assembly and provides that anyone who “interferes with the flow
of water in any drainage ditch” shall be legally responsible
for full restitution for the actual damages that were sustained as
a result of that interference.
(Res. 40-08 (Appx. A § A106.9), 3-19-08)