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Drainage Law

Drainage Law. Tom Pannett ODOT, Office of Chief Counsel. October 28, 2014. If you’re here, you can kiss your BMPs goodbye …. Water does bad things to roadways…. Drainage Law. Drainage issues are myriad as are the remedies used to address them. Drainage (Water) Law General Timeline.

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Drainage Law

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  1. Drainage Law Tom Pannett ODOT, Office of Chief Counsel October 28, 2014

  2. If you’re here, you can kiss your BMPs goodbye …. Drainage Law

  3. Water does bad things to roadways… Drainage Law

  4. Drainage issues are myriad as are the remedies used to address them Drainage Law

  5. Drainage (Water) Law General Timeline Pre 1800s: Common Enemy / Natural Flow Theory Mid 1800s: Canal Act, Riparian Rights, Ownership of Riverbeds, Navigability subject to government control Late 1800s, early 20th Century: Home Rule, Fleming Act, Conservancy districts, Flood laws 20th Century: Army Corps/ Rivers & Harbor’s Act, Clean Water Act, Water Resources Development Act, Federal and State EPAs and ODNR Created Today: Reasonable Use & Codified State, Federal and Local Regulations abound, but not “settled” … also see www.ohiolakefrontgroup.com & Federal Register (Vol. 79, No. 76 / Monday, April 21, 2014) Drainage Law

  6. Laws & Rules & Regulation to which ODOT complies …. • Federal: • USEPA: Clean Water Act: 33 USC 1251 et seq. • Water quality standards: 40 CFR 131 et seq. • Army Corps of Engineers: 33 USC 407 • Endangered Species Act • State: • ODNR: ORC § 1501, 1506, 1521 • Floodplain Management • Coastal Waters • Scenic Rivers • Dam Safety Drainage Law

  7. The Multitude Continues • OEPA: • ORC 6109 – state safe drinking water • ORC 6111 – discharge into wetlands, permits, mitigation • ORC 3745 – underground injection wells • ORC 3745.113 - Ohio Isolated Wetlands • Local: • County Ditches: ORC § 6131 – 6137 • Municipal Charters & Permits & Zoning • Conservancy Districts & Sewer Districts • Parks Drainage Law

  8. “Water” Permits Required of ODOT • Clean Water Act (CWA) Section 404 Permit - Wetland/Streams • CWA Section 401 - Water Quality Certification • CWA Section 402 - National Pollutant Discharge Elimination System (NPDES) • Construction Stormwater General Permit • Land and Water Conservation Fund Act (LWCFA) Section 6(f) • National Environmental Policy Act (NEPA) • National Historic Preservation Act Section 106 Compliance • Rivers and Harbors Act Section 10 Permit • Wild and Scenic Rivers Act Coordination • Isolated Wetland Permit Highly Regulated Element Drainage Law

  9. Ohio Revised Code Sections ODOT Follows That Apply to Drainage + Property Acquisition • R.C. Chapter 163: Appropriation of Property • Can be drainage easements • FMV • R.C. §5501.31: General Authority of Director • Can “appropriate” property for drainage and wetland mitigation; • Must buy stream/environmental mitigation from a “willing seller” • “Quick take” remains for highway • R.C. §5515.01: Removal of obstructions (of waterways) Drainage Law

  10. Regulations (Fed. & State) Takings (Easements) Obstructions Litigation Policies & Directives Permits Drainage Law

  11. Relevant Ohio Case Law • Landowners can sue if upland water usage is not a “reasonable use:” McGlashan v. Spade Rockledge Condos (1980) … overruling precedent from 1865 (Codified @ R.C. 1521.17) • Landowners have an interest in ground water: Henlsey v. Columbus (2004) • ODOT Court of Claims Case: • N. Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp.2013 WL 1791039, Ohio App. 10 Dist.,2013. • Taking due to inadequate drainage; repeated flooding + continuing nuisance • Maluke v. Ohio Dept. of Transp., 115 Ohio Misc.2d 24, 760 N.E.2d 936, Ohio Ct.Cl.,2001. • Shoulder not maintained, driveway allowed to drain on roadway, culvert undersized • Pittro v. ODOT, 2010-02243, Ohio Ct.Cl. (“pending”) • Motorist drove into pond at U.S. 33 & Avery interchange infield • Personally sued decision-makers Drainage Law

  12. Murky Waters • What is a “petition ditch?” • R.C. 6131.01 – ODOT is an “owner” subject to participating in a “petition” to improve/maintain a ditch on public and private property • R.C. 6131.63 – ODOT must pay its proportionate share of a ditch assessment • OAG 80-25 – however, ODOT does not have to pay a late fee • What are “Watershed Districts?” • R.C. 6101 et seq. • Can assess costs against landowners including ODOT • What is “Lake-Erie water diversion?” • R.C. 1501.32 • R.C. 1501.99 • $10,000/ day NPDES/ MS4 Permits Drainage Law

  13. ODOT’s L&D Manual Vol. 2 1115.1 • (pg. 11-36) • What Changed and Why: • X2 treating = overkill • Better for taxpayers & more consistent statewide application • July 2014 L&D revised language: • “Local entities that administer a small or individual MS4 permit may have more restrictive language regarding selection and use of BMPs as compared to the Department. Stormwater discharge from ODOT right-of-way is permitted under the OEPA Small MS4 permit that is obtained by the Department. While the local entity cannot force the Department to use their standards, it may be possible for the Department to incorporate the needs of the local entity subject to review and approval of OHE.” Drainage Law

  14. ODOT’s NPDES Permit # OHQ000002 • (ODOT = Non-Traditional MS4) • MS4 Permits regulate what comes out … not in, and Ohio EPA has authority to provide NPDES permits: • http://water.epa.gov/polwaste/npdes/basics/NPDES-State-Program-Status.cfm • ODOT’s Permit Link: epa.ohio.gov/Portals/35/permits/OHC000004_GP_Final.pdf • 6 Minimum Control Measures to maintain compliance with MS4: • Public Education and Outreach • Public Participation/Involvement • Illicit Discharge Detection and Elimination • Construction Site Runoff Control • Post-Construction Runoff Control • Pollution Prevention/Good Housekeeping Drainage Law

  15. ODOT’s Rules for ODOT’s Projects • Case Law • Federal: • MS4 Cannot regulate another MS4 once a permit has been • granted. Env. Def. Center v. U.S. EPA (2003), 344 F.3d 832, 846- 48. • State: • Where reasonable efforts to comply with land-use restrictions have • been made to no avail, the state may proceed with the proposed • use *** Brownfield v. State (1980) 63 Ohio St.2d 282. Drainage Law

  16. Trying to avoid these situations …. Drainage Law

  17. October 28, 2014 Thank you! If you have any further questions, please contact Tom @ 614-466-2739.

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