DRAINAGE PRESENTATION City of Fair Oaks Ranch

Use of Public Funds Tex. Const. art. III, § 52 Places a restriction on the power of the Legislature to authorize counties and cities to gratuitously grant public money or so lend their credit to or in aid of any individual or private commercial enterprise. Brazoria County v. Perry (Civ.App. 1976) 537 S.W.2d 89 Purpose of this section barring political subdivisions from lending credit to private individuals is to prevent gratuitous application of funds to private use; however, this section does not invalidate expenditure which incidentally benefits private interest if it is made for direct accomplishment of a legitimate public purpose.

Use of Public Funds Neal v. Cain, 247 S.W. 694, 695 (Tex. Civ. App.—Beaumont 1923, no writ) “... what does constitute a ‘public purpose’ are questions which the Legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except, perhaps, where its action is clearly evasive, and where, under pretense of a lawful authority, it has assumed to exercise one that is unlawful.” Citations omitted. Young v. City of Houston, 756 S.W.2d 813, 814 (Tex. App.—Houston [1st Dist.] 1988, writ denied) “Texas courts have broadly defined ‘public purpose.’ Determining a public purpose is primarily a function of the legislature, whose decision should not be reversed, unless manifestly arbitrary and incorrect. If doubt exists, the legislature's discretion should control.” Citations omitted. Op.Atty.Gen. 1946, No If drainage ditch is constructed for benefit of a private individual, such act does not come within the scope of county business, and therefore, commissioners' court cannot legally contract for construction and maintenance of such ditch.

Private Individual/Entity Liability Texas Water Code Section § Overflow Caused by Diversion of Water (a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. (b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. Creates a private cause of action. Negligence Trespass

Private Individual/Entity Liability Texas Water Code Section § Overflow Caused by Diversion of Water (a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. (b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. Creates a private cause of action. Negligence Trespass

Governmental Liability - Negligence Civil Practice & Remedies Code Chapter 101 Texas Tort Claims Act § Governmental Liability - A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor- driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Governmental Liability - Takings Physical Occupation Exactions Regulatory Takings Inverse condemnation

Regulatory Tools Subdivision Regulations Adopt Subchapter B of Local Government Code Chapter 212 (Development Plats). Drainage and erosion control and design requirements. Drainage studies. Zoning Regulations Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities. Building Codes Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction. Floodplain/Drainage Way Management Prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards to other lands. Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of flood waters.

Regulatory Tools - Funding Drainage Utility Fees Subchapter C, Texas Local Government Code Chapter 552 A fee imposed to recover the cost of the service of the municipality in furnishing drainage for any benefitted property; and if specifically provided by the governing body of the municipality by ordinance, an amount made in contribution to funding of future drainage system construction by the municipality. Impact Fees Chapter 395 Texas Local Government Code A fee to pay the costs of constructing capital improvements or facility expansions for drainage facilities.

Drainage Responsibilities Drainage issues normally handled at platting Developer/Property Owner required to ensure City drainage and flood plain management regulations are complied with. At minimum should ensure that there is no diversion or impoundment of the natural flow of surface waters in a manner that damages the property of another (Texas Water Code). Private Property owner Has obligation to ensure is no diversion or impoundment of the natural flow of surface waters in a manner that damages the property of another (Texas Water Code). Required to comply with City regulations Maintain privately owned drainage easements

Drainage Responsibilities City Maintain publicly owned drainage ways Review Plats Enforce local regulations

Drainage Easement Maintenance Ownership Normally established on plat; sometimes by separate instrument Public dedication Requires acceptance Private Ownership HOA POA Property Owner

ADDITIONAL QUESTIONS