In a low-lying, coastal, developed area such as Anne Arundel County, it is vital to understand the effects of and the rights surrounding stormwater. Stormwater is the rain or snowmelt that flows off any hard or impermeable surface on a property. All stormwater runoff ends up in nearby streams, rivers and eventually the Chesapeake Bay without prior treatment. Stopping polluted runoff will help to make our rivers safer for swimming and recreation. Controlling and properly accounting for stormwater can also increase the longevity and enjoyment of your home.
Runoff from Nearby Property
In Maryland, the general rule for liability from stormwater runoff states that while it is understood that higher elevation landowners will have surface water flow off their properties onto lower properties, these landowners are not permitted to increase the volume of water flowing onto lower lands. To analyze such situations, courts have adopted a “reasonableness of use” test, which considers the benefit to the higher elevation landowner and compares it to the harm to the lower elevation landowner.
The main obstacle that this creates for ordinary homeowners is uncertainty. Wondering whether or not a court will deem certain actions by an upstream landowner “reasonable” does not resolve the case; if they really wish to have the matter fixed, that lower owner will need to file a lawsuit. They may allege trespass, nuisance, or negligence to stop the overflow, and to recover monetary damages to compensate for any damage to property.
If a stormwater management plan involves direction of some or all runoff from the site, it is the responsibility of the developer to obtain from adjacent property owners any easements or other necessary property interests concerning flowage of water. Approval of a stormwater management plan does not create or affect any right to direct runoff onto adjacent property without that property owner’s permission. This is a widespread issue right now in our county as affected homeowners do not understand their rights or are not properly protected.
County Responsibility
Anne Arundel County imposes a detailed approval process on all new developments. It sets forth the criteria for how stormwater and grading should be handled, what inspections will take place, and how approval can be obtained. Opinions vary widely on how effective that process currently is. Additionally, the County has a reporting and inspection procedure for violations that may occur subsequent to construction.
The stormwater efforts of the County are financed in part by the revenue from the Watershed Protection and Restoration Fund (“WPRF”), which is funded by taxation upon property owners in the County. It exists to provide sufficient funding for projects needed to meet pollutant-reducing goals and to provide sufficient funding to meet the stormwater management infrastructure obligations. Some of its projects include: Nitrogen and phosphorus-reducing stream/wetland restoration projects, public education and outreach activities, Projects to meet existing stormwater management permit obligations, and local stormwater management planning
Many people do not know that the Bureau of Highways is responsible for inventory, inspection, and maintenance of County culverts and drain systems, construction of new drainage systems County-maintained property, maintenance of County-owned storm drain pipes, resolving flooding or water ponding problems that are caused by storm runoff from County-maintained roadways, repair of eroded areas caused by water coming from County property, and maintenance of all County-owned stormwater management ponds. A few well-placed calls or emails can often resolve issues with stormwater under the County’s responsibilities – usually along with patience.
Association Responsibility
Often after the developer has sold most or all of the lots within an association, it will transfer responsibility for stormwater facilities under its purview to the newly created homeowners association. This can be a very difficult time for the Association, as their untrained volunteers are taking over the management of an entity with many obligations, and they do not always receive the information, training, and resources they may need. An association may hold or issue an easement or right-of-way to the County or other entities in furtherance of its stormwater maintenance obligations.
Around your Home
Just on your own property, you may have several options to control and manage stormwater. Rain gardens are simply low-lying, vegetated depressions that have absorbent soils that temporarily collect stormwater runoff and allow the runoff to slowly percolate into the soil. Rain barrels can also collect stormwater runoff, which may be used later to water plants. And impervious paths and driveways can often be replaced with pervious surfaces such as mulch or permeable pavers. Remember when you make any alterations to your property to check with your Association guidelines to make sure you are in compliance.