Articles

Pithy Title Needed: Lawyers Discussing Stormwater Management by Associations…in Depth

What, Exactly, Is Stormwater Management?

The law defines stormwater as precipitation discharged across land or through conveyances to one or more waterways; stormwater can include stormwater runoff, snow melt runoff, or surface runoff and drainage.[1] Stormwater may be managed by an SMP, BMP, LID or Rain Gardens – but these are all slightly different methods of flood prevention.

An SMP, or “Stormwater Management Plan,” is the broad term for an association’s documented plan for complying with local ordinances regarding stormwater management. A BMP, or “Best Management Practice,” is a type of SMP that includes those activities, prohibited practices, and maintenance that an association has adopted to prevent or at least reduce the pollution of surface waters on its property. A LID, or “Low Impact Development Plan,” is a type of BMP designed to mimic natural hydrologic conditions using conservation and other natural features to control stormwater flow. And finally, a Rain Garden is landscape that is purposefully designed to use slopes and vegetation to control stormwater flow and/or pollution. Whichever method your association has adopted, it is important to have a stormwater maintenance plan in place that is both well documented and intended to have as small an impact on the land as possible.

Regulating Stormwater at the State, City or County Level
 
But first, the association’s management will be overseen by either or both state or local government. At the state-wide level in Virginia, the Virginia Water Control Board is responsible for administration of the State Water Control Law, while the Virginia Department of Environmental Quality handles the day-to-day administration of that Board’s programs,[2] and also administers the complementary Stormwater Management Act and its regulations.[3]  The Department of Environmental Quality is furthered subdivided into six regional offices: the Blue Ridge Regional Office, the Northern Regional Office, the Piedmont Regional Office, the Southwest Regional Office, the Tidewater regional Office, and the Valley Regional Office. Your regional Department of Environmental Quality office will be the main contact with respect to state level storm water regulatory concerns. For our readers, the Piedmont Regional Office will most likely be the office of choice.  

However, regulatory authority, including regulation of stormwater management, is further delegated to local municipalities, i.e., a city or county. These supplemental regulators are referred to as Virginia Stormwater Management Program authorities, or “VSMP authorities.”  These authorities remain answerable to and must first be approved by the Water Control Board to operate a Virginia Stormwater Management Program at the local level.[4]  Then, a locality’s approved VSMP authority may develop its own stormwater management plan. A local VSMP has the freedom to develop a plan focusing on a combination of elements that affect its stormwater management, such as channel improvement, stormwater detention, or other measures to prevent erosion and flooding unique to the locality. The local VSMP authority may also amend its stormwater management plan from time-to-time as conditions are warranted, provided any proposed amendments are first approved by the Department of Environmental Quality. A wary association cannot be blamed for hoping these amendments remain at a minimum. A VSMP may collect costs for its management efforts from land owners, such as property owners’ associations that own common area, and condominium owners too.[5]

Each city or county also has an entire chapter of ordinances dedicated to stormwater management.[6]  Those ordinances, with their more local focus, are better suited to navigate an association away from a sanction for neglected stormwater maintenance, and to provide an avenue for a needed repair at the best cost an association can find. Note that not every locality in Virginia has opted to develop its own stormwater management program. Ninety-four have chosen to accept this undertaking and fifty-four have opted out. For our readers, know that Stafford County, Spotsylvania County, Henrico County, and Chesterfield County have all opted in.

Fundamentally, cities and counties generally want to avoid having to maintain stormwater systems on what would otherwise be private land, and thus intend that stormwater management be the responsibility of associations. [7] In their execution however, cities and counties have not necessarily dotted all their “I”s & crossed all of their “T”s. By default, there is nothing at common law that requires an association to manage its stormwater drainage onto another’s property. The Supreme Court of Virginia has said stormwater is a “common enemy,” and a land owner, including an association, is not liable to a neighbor for stormwater drainage from its property onto another’s property. [8] In response, cities and counties shifted the responsibility for stormwater drainage to associations under recorded documents such as Maintenance Agreements, [9] Declarations and Deeds of Subdivision and Easements. A city or county may assume that anything and everything related to stormwater management is the association’s responsibility. But, if a recorded document does not exist that specifically deals with stormwater management, then the responsibility has not been successfully shifted to associations. These documents may be frustrating to find, since there may be many versions filed over the last few decades, but, it will always be important to know what these documents say.   Remember: it’s only real if it’s written and recorded.          

For most associations, at least one of these documents exist, and in particular, place the responsibility to repair and replace “facilities” for stormwater management onto associations, and lesser tasks onto the lot owners themselves. The term “Stormwater facilities” is usually defined very broadly to include ponds, basins, vegetation, sewers and other pipes connecting to those ponds, etc. enlarging the area of management beyond just areas where flooding may be routinely seen. It is also common for associations to be responsible to inspect, repair and replace stormwater facilities and keep them free of debris. It may further be that lot owners are given the lesser tasks of mowing and removing litter on their individual lots and providing notice of any larger obstruction to their associations.

In recorded documents, it is likely that a city or county has also reserved to itself (1) the right to periodically inspect stormwater management facilities, and (2) an easement for it to cross over an association or lot owner’s property to access those facilities. [10] Unfortunately, the city or county probably has not reserved to themselves the duty to maintain those easements, which means that, again, it is the association’s responsibility.   

More, it is within a city or county’s authority to cite an association for needed repairs and replacements in a notice that corrective action is needed. [11] A determination from a city or county that a stormwater facility is in disrepair or not functioning as intended can be an intimating piece of correspondence for an association to receive. However, if an association acts quickly, it does not have to accept, without question, the repairs recommended by the city or county, or worse, the costs of the repairs recommended. Instead, a well-educated association can respond in a meaningful and hopefully cost-saving way. Upon receipt of this notice, it is important for an association to hire its own design engineer, who can perform an independent inspection on behalf of the association, counter the repairs recommended by the city or county with cost saving alternatives, recommend vendors for repairs agreed upon with the city or county, and perform a final inspection once the repairs are done. In most instances, this process of exchange of information and ideas about the repairs need not be adversarial.

That said, sometimes issues surrounding stormwater management do become contested. In these scenarios, a city or county, after sending a notice of corrective action, is armed with performing the repairs itself at the expense of an association, [12] holding an administrative hearing for a contested violation, petitioning the local Circuit Court for an order to enforce compliance by an association unwilling or unable to comply, [13] and/or assessing a civil penalty of up to $32,500.00. [14] An association, on the other hand, may seek review of any adverse action such as a notice of corrective action but only if it demands in writing a hearing from Henrico County’s County Manager within fifteen (15) working days, or from Chesterfield’s Environmental Engineer, Stafford County’s Board of Supervisors or Spotsylvania County’s County Administrator within thirty (30) days from that respective County giving notice of the adverse action. [15] This means that an association must be quick and well-informed to contest an adverse action; it also emphasizes the need to involve a design engineer and if necessary the association’s attorney as soon as a notice of corrective action is received to best protect an association.  

An Easement for Stormwater Management

Often, a Declaration or Deed of Subdivision and Easements also gives an association an easement to travel over its members’ lots to access stormwater facilities for inspection, maintenance and repair. This easement does not by itself shift the responsibility for that inspection, maintenance or repair to the association. As mentioned, that responsibility must be shifted by the express language of a Maintenance Agreement, Declaration or Deed of Subdivision and Easement, which will contain separate and distinct language from the language creating the easement. The Supreme Court of Virginia has been clear that the “obligation to make repairs … rests upon those who use the easement, and if they fail to keep it in proper condition for the uses for which it was granted or dedicated they must suffer the resulting inconvenience. This rule is changed only where there is a special agreement or prescriptive right to the contrary.” [16]  Circuit Courts have responded that a responsibility of maintenance and repair may be found should a party benefit from the easement, i.e., access to a desired location. [17] Does this mean, however, that a lot owner can force the association to do any necessary repairs on the easement over that owner’s property, merely because the association is the “beneficial owner”?   We have litigated this very issue and won a judgment in favor of the association, but to date, there is no specific written case on that point, so it may be prudent to research this point of law for any developments when this issue may arise.

An Ounce of Prevention Now

There are various tasks that an association can take now to avoid a costly repair or -- worse – the entire replacement of a failed stormwater maintenance system. Have a title examiner perform a search of your city or county’s land records for all documented obligations of the association. Work with your manager to have an independent stormwater management professional inspect the association’s stormwater facilities well before the city or county ever intervene. Make sure that the association’s reserves are well funded, or at least are on track to be well funded soon, to avoid the need of a special assessment to cover any exorbitant costs that could be catastrophic to an association’s bottom line. Educate not only your directors but all the members of the association as to their routine maintenance obligations, i.e., cutting grass, removing other debris, etc. Following these steps may forestall the need to carry out far larger repairs, and may prevent future floods – either of which would impose greater costs on all members in your community.