Chapter 26.76
DRAINAGE LAW

Sections:

26.76.010    Introduction.

26.76.020    Historical evolution of surface water drainage law.

26.76.030    Legal principles.

26.76.040    Local governments – Drainage responsibilities and powers.

26.76.050    Applicable drainage laws.

26.76.060    Special matters – Irrigation ditches.

26.76.070    Special matters – Ditch owner’s duty to maintain, use and manage their ditches.

26.76.080    Special matters – Water quality.

26.76.090    Special matters – Economic loss rule – Duty of care.

26.76.100    Special matters – Water rights and drainage improvements.

26.76.110    Special matters – Governmental entity not liable for refusal to issue certificate of occupancy of residence constructed in a floodplain.

26.76.120    Special matters – Any legislatively formulated assessment, fee or charge that is imposed on a broad class of property owners by a local government is not considered taking of property.

26.76.130    Special matters – Governmental immunity in regard to irrigation and drainage ditches used as part of stormwater drainage system.

26.76.140    Special matters – Concerning interference with the flow of water in ditch.

26.76.010 Introduction.

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)

26.76.020 Historical evolution of surface water drainage law.

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)

26.76.030 Legal principles.

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)

26.76.040 Local governments – Drainage responsibilities and powers.

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)

26.76.050 Applicable drainage laws.

(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.

(2)    §§ 31-15-701, 31-15-714 C.R.S. – Grants powers to municipalities to engage in public improvements.

(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.

(3)    §§ 30-20-601, 30-20-603, C.R.S. – Authorizes a county by resolution to construct local 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.

(i)    Section 7.7, Drainage.

(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)

26.76.060 Special matters – Irrigation ditches.

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)

26.76.070 Special matters – Ditch owner’s duty to maintain, use and manage their ditches.

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)

26.76.080 Special matters – Water quality.

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)

26.76.090 Special matters – Economic loss rule – Duty of care.

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)

26.76.100 Special matters – Water rights and drainage improvements.

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)

26.76.110 Special matters – Governmental entity not liable for refusal to issue certificate of occupancy of residence constructed in a floodplain.

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)

26.76.120 Special matters – Any legislatively formulated assessment, fee or charge that is imposed on a broad class of property owners by a local government is not considered taking of property.

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)

26.76.130 Special matters – Governmental immunity in regard to irrigation and drainage ditches used as part of stormwater drainage system.

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)

26.76.140 Special matters – Concerning interference with the flow of water in ditch.

§ 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)