1、 CHAPTER 5 THE LEGAL ASPECTS OF HIGHWAY DRAINAGE 2007 by the American Association of State Highway and Transportation Officials. 2007 by the American Association of State Highway and Transportation Officials.CHAPTER 5 TABLE OF CONTENTS 5.1 INTRODUCTION. 5-1 5.2 LAWS IN GENERAL. 5-2 5.3 FEDERAL LAWS.
2、 5-3 5.3.1 National Environmental Policy Act (NEPA). 5-4 5.3.2 Flood Insurance 5-5 5.3.3 Navigable Waters. 5-6 5.3.4 Fish and Wildlife . 5-8 5.3.5 Tennessee Valley Authority (TVA). 5-9 5.3.6 Coastal Zone Management 5-9 5.3.7 Executive Orders 5-10 5.4 STATE LAWS. 5-11 5.4.1 Common Law.5-11 5.4.1.1 Cl
3、assification of Waters . 5-11 5.4.1.1.1 Surface Waters. 5-12 5.4.1.1.2 Stream Waters 5-12 5.4.1.1.3 Floodwaters . 5-12 5.4.1.1.4 Groundwaters. 5-13 5.4.1.2 Surface Water Rules and Applications. 5-13 5.4.1.2.1 Civil Law Rule (Natural Drainage Rule). 5-13 5.4.1.2.2 Application of the Civil Law Rule. 5
4、-14 5.4.1.2.3 Common Enemy Doctrine . 5-15 5.4.1.2.4 Application of the Common Enemy Doctrine . 5-15 5.4.1.2.5 Reasonable Use Rule . 5-15 5.4.1.2.6 Application of the Reasonable Use Rule . 5-16 5.4.1.3 Stream Water Rules 5-16 5.4.1.4 Floodwater Rule . 5-17 5.4.1.5 Groundwater Rules. 5-17 5.4.2 Statu
5、tory Law. 5-18 5.4.2.1 Eminent Domain 5-18 5.4.2.2 Water Rights. 5-18 5.4.2.2.1 Riparian Doctrine 5-19 5.4.2.2.2 The Doctrine of Prior Appropriation . 5-19 5.4.2.3 Flood Control, Drainage and Irrigation Districts . 5-20 5.4.2.4 Agricultural Drainage Law. 5-20 5.4.2.5 Environmental Laws 5-20 5.4.2.6
6、Highway Agency Rules 5-21 2007 by the American Association of State Highway and Transportation Officials.Highway Drainage Guidelines 5-iv 5.5 LOCAL LAWS 5-21 5.5.1 Local Ordinances5-21 5.5.2 Flood Disaster Protection Act of 1973 .5-22 5.6 COMMON DRAINAGE COMPLAINTS.5-22 5.6.1 Diversion 5-23 5.6.2 Co
7、llection and Concentration.5-23 5.6.3 Augmentation .5-23 5.6.4 Obstruction .5-24 5.6.5 Erosion and Sedimentation.5-24 5.6.6 Groundwater Interference.5-24 5.7 LEGAL REMEDY 5-25 5.7.1 Inverse Condemnation5-25 5.7.2 Injunction5-25 5.7.3 Legislative Claims5-26 5.7.4 Tort Claims.5-26 5.7.5 Tort Liability
8、 of State Highway Agencies5-27 5.8 INVOLVEMENT OF THE HYDRAULICS ENGINEER.5-28 5.8.1 Planning and Location Considerations.5-29 5.8.2 Design Considerations5-29 5.8.2.1 Documentation5-29 5.8.2.2 Engineer Liability .5-30 5.8.3 Liaison with Legal Staff .5-30 5.8.4 Engineering Evidence.5-31 5.8.5 Negotia
9、tion .5-31 5.8.6 The Engineer as a Witness .5-31 5.8.6.1 Engineering Testimony.5-31 5.8.6.2 Conduct When a Witness5-32 5.8.7 Engineers Conduct Toward the Opposing Party.5-33 5.9 REFERENCES 5-33 2007 by the American Association of State Highway and Transportation Officials.Chapter 5 The Legal Aspects
10、 of Highway Drainage 5.1 INTRODUCTION Attorneys who have worked with highway engineers on drainage problems understand engineers frustrations that specific legal rules are not available for use as guides in their work. The work of engineers generally involves the application of principles founded in
11、 mathematics and the physical laws of nature. In contrast to this, drainage law seeks to strike a balance between often conflicting interests of adjoining property owners. Generally, the law recognizes that owners may make certain reasonable uses of their land without liability, even though there ma
12、y be some effect on the neighboring land. Certain other uses, however, may be held to be an unreasonable interference, entitling the injured party to damages and an abatement of the interference. Drainage problems are increasing with increasing land development, including highway construction and pr
13、omise to become even more numerous and vexatious as property owners are becoming increasingly aware that legal recourse is available. The objective of this chapter is to emphasize the importance of the legal aspects of highway drainage. Although drainage laws vary from state to state and a proper co
14、nclusion regarding liability in one state may not be true in another, the following generalizations can be made: A goal in highway drainage design should be to perpetuate natural drainage, insofar as practicable. The courts look with disfavor upon infliction of damage that could reasonably have been
15、 avoided, even where some alteration in flow is legally permissible. The basic laws relating to the liability of governmental entities are undergoing change, with a trend toward increased governmental liability. Drainage laws are also undergoing change, with the result that older and more specific s
16、tandards are being replaced by more flexible standards that tend to depend on the circumstances of the particular case. Heretofore, an understanding of applicable drainage law has not been adequately stressed as a qualification for engineers who are responsible for drainage facility planning, design
17、, construction, operation, and maintenance. This chapter was written by engineers for engineers to provide information and guidance on the hydraulics engineers role in the legal aspects of highway drainage. Although written from the viewpoint of design engineers, the chapter should be equally useful
18、 to maintenance engineers who must take action to alleviate existing problems. It should not in any way 2007 by the American Association of State Highway and Transportation Officials.5-2 Highway Drainage Guidelines be treated as a manual upon which to base legal advice or make legal decisions. The t
19、ypes of drainage laws and rules applicable to highway facilities and the types of drainage claims commonly associated with highways are discussed, and the involvement of the hydraulics engineer in the legal area is described in general terms. It is not a summary of all existing drainage laws, and ca
20、se citation is not used. Most emphatically, this chapter is not intended as a substitute for legal counsel. One of the principal objectives of this chapter is to generate sufficient interest in drainage law, terminology, rules, and applications that engineers will be motivated to study available lit
21、erature and become better qualified to deal with this aspect of highway drainage. It should be stressed that, unless circumstances dictate otherwise, an engineer should never attempt to address a question of law without the aid of legal counsel. The water law of the United States is in such a confus
22、ed posture that it is extremely difficult for attorneys well-versed in law to arrive at a solution to some of the problems. In most areas of water law, the law is neither black nor white but is, in fact, gray, and legal counsel is necessary to determine in what shade of gray the given circumstances
23、fall. Another objective of this chapter is to impress on engineers the importance of gaining sufficient interest in the legal aspects of highway drainage and sufficient knowledge of the subject that they will recognize situations that warrant advice from legal counsel. In dealing with water law, eng
24、ineers should recognize that the State is generally held to a higher standard than a private citizen. This is true even though the State should enjoy the same rights and liabilities, and there is no law that says that the State should be treated differently. There are numerous publications on the le
25、gal aspects of drainage and water laws, including some dealing with drainage laws and the highway agency in a particular State. These publications are especially useful in the States for which they were written; however, such information can be useful and applicable in other States as well. Several
26、references are listed in Section 5.9. 5.2 LAWS IN GENERAL The descending order of law supremacy is Federal, State, and local and, except as provided for in the statutes of the higher level of government, the superior level is not bound by laws, rules or regulations of a lower level. Many laws of one
27、 level of government are passed for the purpose of enabling that level to comply with or implement provisions of laws of the next higher level. In some instances, however, a lower level of government may promulgate a law, rule or regulation that would require an unreasonable or even illegal action b
28、y a higher level. An example is a local ordinance that would require an expenditure of State funds for a purpose not intended in the appropriation. State permit requirements are an example of law supremacy. Federal agencies do not secure permits issued by State agencies, except as required by Federa
29、l law. Many of the questions relative to conflicts in laws of different levels of government involve constitutional interpretation and must be determined case by case. Such conflicts should be referred to the highway agencys legal counsel before any action is taken. 2007 by the American Association
30、of State Highway and Transportation Officials.The Legal Aspects of Highway Drainage 5-3 5.3 FEDERAL LAWS Federal law consists of the Constitution of the United States, Acts of Congress, regulations that government agencies issue to implement these acts, Executive Orders issued by the President and c
31、ase law. Acts of Congress are published immediately upon issuance in slip law form and are cumulated for each session of Congress and published in the United States Statutes at Large. The Federal Register, which is published daily, provides a uniform system for making regulations and legal notices a
32、vailable to the public. The following items are published in the Federal Register: Presidential Proclamations and Executive Orders, Federal agency regulations and documents having general applicability and legal effect, documents required to be published by Act of Congress, and other Federal agency
33、documents of public interest. Executive Orders have a wide scope, ranging from personnel appointments to prescribing rules and regulations under the Trading-with-the-Enemy Act. Most relate to the conduct of government business or to organization of the executive departments, but many have wider sign
34、ificance. An Executive Order has never been defined by law or regulation. In a general sense, every act of the President authorizing or directing that an act be performed is an executive order, but there are legitimate differences of opinion regarding the papers that should be included in such a cla
35、ssification. Beginning in June 1938, Executive Orders have been published by the Office of the Federal Register in the supplements to Title 3 of CFR. Executive Order No. 10006 of October 9, 1948, required current publication of all Presidential Proclamations and Executive Orders in the Federal Regis
36、ter. All regulations in force are published in codified form in the CFR at least annually. The CFR is not as inclusive as the Federal Register for it contains only regulations of general application presently in force. Unlike the Federal Register, it does not include temporary rules, statements or p
37、olicy or interpretive rules. Federal law does not deal with drainage per se, but many laws have implications which affect drainage design. These include laws concerning flood insurance and construction in flood hazard areas, navigation and construction in navigable waters, water pollution control, e
38、nvironmental protection, protection of fish and wildlife and coastal zone management. Federal agencies formulate and promulgate rules and regulations to implement these laws, and highway hydraulics engineers should attempt to keep informed regarding proposed and final regulations. Some of the more s
39、ignificant Federal laws affecting highway drainage are listed below with a brief description of their subject area. Department of Transportation Act (80 Stat. 941, 49 U.S.C. 1651 et seq.). This Act established the Department of Transportation and sets forth its powers, duties and responsibilities to
40、 establish, coordinate, and maintain an effective administration of the transportation programs of the Federal Government. Federal-Aid Highway Acts (23 U.S.C. 101 et seq.). The Federal-Aid Highway Act provides for the administration of the Federal-Aid Highway Program. Proposed Federal-aid projects m
41、ust be 2007 by the American Association of State Highway and Transportation Officials.5-4 Highway Drainage Guidelines adequate to meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance and must be designed and constr
42、ucted according to standards best suited to accomplish these objectives and to conform to the needs of each locality. The Federal-Aid Highway Act of 1970 (84 Stat. 1713, 23 U.S.C. 109(h) provides for the establishment of general guidelines to assure that possible adverse economic, social, and enviro
43、nmental effects relating to any proposed Federal-aid project have been fully considered in developing the project. In compliance with the Act, the Federal Highway Administration issued process guidelines for the development of environmental action plans. The Federal-Aid Highway Act of 1966 (80 Stat.
44、 766), amended by the Act of 1970 (84 Stat. 1713), required the issuance of guidelines for minimizing possible soil erosion from highway construction. In compliance with these requirements, the Federal Highway Administration issued guidelines that are applicable to all Federal-aid highway projects.
45、These guidelines are included in 23 CFR 650, Subpart B. The following Sections contain brief discussions of other Federal laws and regulations, current on the date of publication of these guidelines, which significantly affect highway drainage design. 5.3.1 National Environmental Policy Act (NEPA) T
46、he National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 43214347) declares the national policy to encourage a productive and enjoyable harmony between man and his environment; to promote efforts that will prevent or eliminate damage to the environment and biosphere and stimulate the health an
47、d welfare of man; and to enrich the understanding of the ecological systems and natural resources important to the nation. Section 102 of NEPA requires that, to the extent possible, policies, regulations, and laws of the United States shall be interpreted and administered in accordance with NEPA and
48、 that all Federal agencies shall ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making, along with economic and technical considerations. Section 102(2)(c) requires that all Federal agencies, with respect to major Federal acti
49、ons significantly affecting the environment, submit to the Council on Environmental Quality (CEQ) a detailed statement on (1) the environmental impact of the proposed action, (2) any adverse environmental effects that cannot be avoided should the proposal be implemented, (3) alternatives to the proposed action, (4) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (5) any irreversible or irretr
