NC Stormwater Drainage and Landowners’ Rights and Responsibilities

With the recent increase in rainwater frequency and amounts in Western NC, property owners are discovering a range of drainage, flooding, and sedimentation problems.  Property owners should be aware of the drainage systems in their neighborhoods or on their privately owned properties, as well as the municipal rules and regulations for maintenance and repair.  Homeowners should also look to address coverage for repairs to underground drainage systems on their property when securing insurance.  While one may think that if something went wrong with the old pipe that was installed years before he or she bought the property, which flows through the property under the surface and drains the neighborhood’s streets and runoff, would be covered by city or county stormwater or other utility services, they’d possibly be wrong.

Stormwater management and ordinances are generally created and set by city or county governments.  Generally, municipal Stormwater divisions are responsible for the installation, maintenance, repair and revitalization of the storm drainage, catch basins, pipes, etc., within a city’s or county’s streets, right-of-ways, and dedicated storm water easements.  The Stormwater division coordinates public-private stormwater damage abatement projects as approved by city or county councils.  The ordinances provided in this article are specifically for the City of Asheville and maybe similar to other county’s and city’s within the state, but a property owner should review those of his or her respective municipality.

Originally when neighborhoods were built they included permitted storm water drainage installations and the idea was that the governing municipal body would take over control and maintenance of those systems.  While this did occur, at some point municipalities decided not to take on these extra costs and responsibilities and stopped dedicating stormwater easements and right-of-ways to private land owners.  Around the same time, ordinances were adopted making maintenance of stormwater drain systems on private property the responsibility of the landowners and not the municipal entities.

The applicable Asheville City ordinance states that: “The City of Asheville shall maintain only the storm sewer systems within City maintained rights of way and on City owned property, unless an easement has previously been offered and maintenance responsibility accepted by the City.  Storm drainage systems located on private property shall be maintained by the property owner(s).”

Most property owners would prefer and are looking for their municipal government to take on their stormwater drainage systems maintenance and repairs for obvious reasons.  The easiest solution is when stormwater systems are on city property or within city setbacks.  Similarly, if a property has a stormwater easement or dedication, then the city will probably maintain or repair the system.  Unfortunately, such easements and property reservations are not common.  For one to find out if his or her property has a stormwater easement or dedication, they should check their deed and check with the County Register of Deeds.  One could also check with their respective City Hall or County Stormwater division.

Further, if a property does have an easement, no permanent structure can be constructed on top of the easement area, including swimming pools, house additions, garages, etc., to prevent damage or hindered access to the stormwater system.  Generally, non-permanent structures are usually allowed, such as decks, sheds, driveways, playgrounds, etc.  However, if. one buys a place with an easement, but there is no non-permanent structure in place already, the property owner would more than likely be responsible for removing it if access to the stormwater system below is ever needed.

If private property does not have a stormwater easement or dedication the governing municipal entity may still be responsible for the stormwater drainage system costs.  When the municipality was the party responsible for the installation or has previously maintained or repaired a system on private property then they assume the continued responsibility to do so.  It is not yet clear whether or not verbal promises to repair a stormwater drainage system by city employees would hold the municipality liable for those necessary repairs.  Essentially, where one can prove that the municipality “adopted” the system on private land, it is responsible for continued maintenance and repairs on that system.

Other options owners may pursue in getting assistance with repairing or maintaining stormwater drainage systems malfunctioning or causing problems on their private land is through homeowner’s insurance or local politics.

It is important and valuable to realize that all rain and storm runoff ends up in our streams, rivers, and lakes. Stormwater systems do not filter the water but simple channel it to prevent erosion, sedimentation, flooding, and other related social, engineering, and environmental problems.  However, polluted runoff (as simple as cigarette butts thrown on the street) ends up contaminating our aquatic ecosystems, which provide value to us through tourism, farming, and, most importantly, fresh water. With a decreasing water table, and fresh water resources, worldwide, it becomes more important to make concerted efforts to prevent pollution from getting into our creeks, rivers, lakes, and oceans.

Forrest P. Merithew, Attorney at Law, has personal and professional experience in construction, environmental and water law, municipal law, and property and easement legal matters.  His history in these areas provides him with a greater understanding of the legal, construction, insurance, and other related issues which develop with construction, permitting, related ordinances, and the installation and maintenance drainage systems.

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