Legal-Ease: Spring flooding responsibilities and rights


By Lee R. Schroeder - Guest Columnist



Newly thawed snow and ice coupled with spring showers can make water removal/drainage one of the most important parts of living in our region this time of the year.

Our region has a rather well-developed series of water diverting channels, which direct excess water to local lakes, ponds and rivers. Most of the water diversion tools are called “ditches,” and we see open ditches running beside many of our local roads in the country. Water drainage tiles located under the surface of the ground are also often called “ditches” (by the law and most farmers) even though that drainage is unseen.

Generally, a property owner is responsible to retain the property’s naturally occurring precipitation (water, snow or ice) on the property until a previously established surface or subsurface drain can divert that liquid to a local body of water.

Unless a local government prohibits it, a landowner can increase the flow/drainage of surface water off that person’s property if the development that led to the increased water flow is “reasonable development.” Of course, the definition of reasonable is determined on a fact-by-fact basis, but usually means that paving over or building upon property is OK if there are attempts to slow the discharge of water from that property through the use of retention ponds or swales (small, low-lying areas).

For this reason and others, local governments often require that naturally accumulating precipitation (that before construction would have been absorbed into the ground) be held on that property until the established drains have the capacity to move the precipitation off the property.

Of course, using retention ponds can be less efficient than simply installing bigger underground tiles to handle additional water quantities.

When it comes to increasing subsurface (below the surface) drainage from a parcel of property, the law is stricter. Generally, there is no legal ability for someone to increase the flow/quantity of water under or through a neighboring property. As a result, if a farmer installs new, additional subsurface drainage tiles in a field, the farmer cannot simply tap into a neighbor’s tile that leads to a public ditch or waterway. Instead, the farmer must have permission from the neighboring landowner to increase the quantity of subsurface water that will be pushed through to the neighboring landowner’s property.

If improvement of surface or subsurface drainage will affect multiple landowners, landowners can voluntarily cooperate to make those improvements and share the costs.

However, if there is not unanimous agreement to make and share the cost of drainage improvements, any one of the landowners can file a petition with the county commissioners, who oversee whether to undertake the “ditch petition” improvement process. The ditch petition improvement process includes engineering analyses of water drainage in the applicable area, determines what improvements would best improve drainage, calculates the cost of those improvements that would increase drainage capacity, and assesses the expense proportional to the value of improvement that each landowner will experience if the improvements are ultimately ordered by the county commissioners.

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By Lee R. Schroeder

Guest Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

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