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County Addresses Responsibility For Drainage Issues


Currituck County seeks to help educate property owners and residents regarding the responsibility for stormwater drainage issues that arise throughout the county. In many instances stormwater flows from one property to another, often in the form of surface water during or following a storm event. This may result in flooding or erosion to the receiving property.

Currituck County has outlined the property law of North Carolina for residents to easily understand responsibility for stormwater drainage. The following information is provided by the county attorney's office:

With increasing development of Currituck County and its evolution from rural to more urban in character, questions arise regarding flow of storm water from one property to another and who is responsible should storm water damage occur. The most common example is run off of surface water, during or following a storm event, from one lot to another lot that results in flooding, erosion or other damage to the lot receiving the storm water runoff.

The general rule of property law in North Carolina is that an owner/possessor of land may make reasonable use of the land. Under the Rule of Reasonable Use, the owner/possessor of land may make reasonable use of the land even though the flow of surface water is altered and causes some harm to others. However, liability may be incurred when the discharge of surface water onto the property of another is (1) unreasonable and (2) causes substantial damage. See Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977).

The determination of what is an unreasonable discharge of surface water onto the property of another and whether the discharge of surface water causes substantial damage is a private nuisance action between the property owners in dispute. The reasonableness of surface water discharge onto the property of another is a question of fact to be determined in an individual case. Based on the facts of a given case, reasonableness is determined by considering the extent and character of the harm to the property owner receiving the surface water versus the purpose for the surface water discharge and the social value attached to the purpose for the surface water discharge, among other things. Even if the discharge of surface water onto the property of another is found to be reasonable, the party responsible for the surface water discharge may be liable for damages if the resulting interference with another's use and enjoyment of land is greater than reasonable to bear under the circumstances without compensation.

As stated in the Pendergrast case, a dispute between property owners regarding the discharge of surface water is a private nuisance issue between the property owners. Whether the discharge of surface water onto the property of another is reasonable or damages property is to be determined by the facts of each case. A property owner concerned about their rights or obligations related to the discharge or receipt of surface water should consult with their attorney for guidance.

In addition, an easy-to-use checklist of responsibility is as follows, provided by the Soil and Water Conservation office:

  • First and foremost, Currituck County is not responsible for any drainage.
  • If the ditch is along a State (NC DOT) highway or street they are responsible.
  • In a subdivision the developer is responsible until such time as the subdivision is turned over to the homeowners association (HOA).
  • Once it is turned over to the HOA, the HOA is responsible for the drainage maintenance, even downstream on adjacent properties. This may require seeking permission from adjacent landowners whose property the ditches traverse. In most cases the adjoining landowner will allow ditches to be cleaned out. If not, this issue is not a county issue and is strictly a civil matter between the parties involved. Therefore, it is the responsibility of those who are flooding to prove others are causing the flooding. Those that are flooding are just as responsible for the downstream ditch maintenance as those who own the ditch. Also it is the responsibility of the downstream landowner to accept runoff from upstream.
  • If the subdivision has a state stormwater permit - the subdivision is required by state law to maintain the stormwater infrastructure.