You asked who is responsible for correcting flooding problems when the discharge of water from a state highway culvert flows onto private property in a wetlands area. You specifically asked about the responsibility, if any, of the Department of Transportation (DOT) in a particular instance. The Office of Legislative Research is not authorized to issue legal opinions, and this should not be construed as one.

Responsibility in this case depends on a number of factors which we are not able to address. These include the cause and frequency of the flooding; the extent and nature of damage; where the flooding occurs; whether the land is in a wetlands and the terms of any Department of Environmental Protection (DEP) wetlands permit; whether there are alternative ways to discharge the water; and whether the water is discharged along its natural channel or along a course altered by DOT.

However, state statutes and case law do provide some guidance. The law allows those who build or repair highways to drain water into or through private property so long as they do so in a way that does "the least damage to [the] land. " The law specifies that drainage should not take place into, through, or under residential yards, or into yards or enclosures in which goods and merchandise are sold or stored (CGS § 13a-138).

Property owners whose land adjoins public highways may sue for damage caused by drainage, but must file suit no later than 15 years after the first time the drainage took place. Property owners cannot bring an action for damages from drainage that first occurred before October 1, 1981 (CGS § 13a-138a)).

The law would seem to indicate that DOT, which maintains Rt. 81, the highway in question, can discharge runoff onto private property as long as it (1) does not discharge the water into a residential yard and (2) causes the minimal amount of damage. This would seem particularly true if the property is in a wetlands area and the runoff's only effect is to make the property "more wet. " However, this may not be the case if the runoff causes damage by carrying road salt, sand, silt or sediment onto the property.

If the highway itself is in a wetlands, DOT would have had to obtain a DEP permit for work it did on a drainage system after October 1, 1969 (CGS § 22a-32). Responsibility, if any, for damages occurring to adjoining private property may depend on the specific permit terms.

CASE LAW IN GENERAL

According to American Jurisprudence, Second Edition, municipalities building or improving highways or roads need not build drains to protect adjoining property from the natural flow of surface water, and are not liable if their roadwork diverts water from its usual course of flow or it flows onto other places than before. Most jurisdictions hold that public authorities do become responsible for surface water when they take an action that increases its volume or accumulates it in unusual quantities. (But some courts have held they are not liable for damage if a highway improvement only increases the amount of storm water flowing along the water's natural channel. )

Many courts also have held that a public authority has no right to alter the natural course of surface water so as to divert it onto private property where it had not flowed before. If a municipality does build a drainage system, it must discharge storm water that accumulates from ordinary rainfall in a way that prevents injury to abutting property owners (39 Am. Jur. 2d, Highways, Streets and Bridges, § 129).

Connecticut Case Law

In a 1908 case (Rudnyai v. Harwinton, 79 Conn. 91), the Connecticut Supreme Court held that a town generally was not liable for the flooding it caused as a consequence of building and repairing a highway. But it held that a town could drain water onto private property only when it had no reasonable alternative, and only in a way that did the least damage to the land. The Court held a public authority could be liable for damages if it diverted storm water onto adjoining private property when it could have avoided doing so by a "moderate expenditure of money. "

More recently, in Hutchinson v. Andover (49 Conn. App. 781 (1998)), the Appellate Court held that the common law rule barring an individual from gathering surface water on his land and discharging it onto a neighbor's property also applies to government agencies engaged in highway maintenance. If a public authority builds a drainage system, the Appellate Court held that the authority cannot balance the cost of the system against the damage done the property owner. In other words, the authority must ensure that drainage causes the least harm to the property owner, regardless of the costs involved or any environmental considerations.

Other Connecticut cases have held that:

1. courts must strictly interpret the law because it involves a private right (Sozanska v. Stratford, 112 Conn. 563 (1931)); and

2. the public authority building or fixing the highway must make a real effort to do the least damage to the adjoining private land (Rambush v. Salem, 3 Conn. Supp. 404 (1936)).

PF: ts