Riders on the Storm Beware

by Wilson Elser
Contact

Every summer, warm weather prompts millions to flock to bodies of water. While sunbathers likely give little thought to the source of water in which they frolic, design professionals and builders of public and private projects must pay careful attention to how construction will affect stormwater that eventually finds its way into lakes and oceans. Stormwater runoff is rain or melted snow that runs across, rather than seeps into, the ground. Runoff can cause severe damage. Without any type of treatment, runoff also pollutes tributaries and major waterways. Improper design, faulty construction or lack of maintenance of stormwater management systems can create professional exposure to unexpected avenues of liability.

Detention ponds have become popular in commercial and residential building. Unlike retention ponds, which remain dry except to capture water briefly and slowly release it, detention ponds are always filled with water. Detention ponds have a number of benefits, including aesthetic appeal, and are useful in reducing runoff pollution. Design considerations include analysis of the topography of the land; how well soil will hold water; the shape, size, depth and slope of the pond and shoreline; planting of proper vegetation along the shoreline; and quality and placement of materials surrounding the pond, including pipe and concrete. In other words, exposure to liability at this phase may be significant but does not end there.

Post-construction ponds require heavy maintenance of both the water and the shoreline, including upkeep of vegetation strengthening the banks. Determining who has the burden of maintenance is state- and municipality-specific; generally, it is the local government or the property owner/ homeowners’ association. Potential claims from a failed pond may be far-reaching, extending to the owner for improper maintenance or to a design professional who may have consulted on any aspect of the construction of the pond (up to and including the vegetation selected).

In May 2014, the decision by the U.S. Supreme Court to let a Ninth Circuit appeal go unheard further complicated the legal landscape. In Natural Resource Defense Council, Inc. and Santa Monica Baykeeper v. County of Los Angeles et al., the Ninth Circuit ruled that the County of Los Angeles was liable for allowing pollution in runoff to flow into navigable waterways and ultimately into the Santa Monica Bay and Pacific Ocean. The County is made up of 88 cities and 140 unincorporated municipalities. Each of the cities has its own National Pollutant Discharge Elimination System Permit, which acts as a contract under the Clean Water Act to regulate how much pollution can be discharged. Although the permits are specific to each municipality - most of the stormwater management system is interconnected - it’s impossible to determine the allocation of liability related to the points at which stormwater runoff is being polluted in excess of allowable pollution discharge.

My home state, Pennsylvania, posts an electronic copy of the “Pennsylvania Stormwater Best Management Practices Manual.” Most states and some major cities also publish a guide. It would be prudent for any design professional who is thinking about “riding the storm” (or performing services related to the design or construction of a stormwater management system) to consult the applicable manuals.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.