Listed in Administration
The scenario is this: a new development is constructed in your town with engineered plans, and all of the stormwater infrastructure was properly inspected and installed as per expectations. Everything appears satisfactory, the homes are built and and the new residents are moving in. Awhile later, after a heavy rain, it becomes obvious that the stormwater management system designed for the development is wholly inadequate, as it is not capable of handling the amount of rain being received. The catch basins are overwhelmed. You trace the system to its outfall. Water is flowing, but certinaly not at the rate it should for the amount of water attempting to enter the system. The road is flooded - and the flooding endangers property. Every call your office recieves is about the water on this road, and now callers are bothering the town supervisor, asking them to wave their magic wand.
What now? It is likely that the culverts transporting stormwater from basin-to-basin, and to the eventual outfall, are undersized or have inadequate slope. This could mean excavating the entire system and ruining the new road in the process. Is the town stuck making the upgrades and/or repairs to the stormwater system, or is the developer responsible for this mess? Or the engineer?
1 | Stabilize and Document the Emergency
| Action | Why it matters | Tips |
|---|---|---|
| Protect people & property | Public safety comes first. | Barricade flooded streets, pump standing water, place signage. |
| Capture evidence | You’ll need a factual record to assign liability later. | Date-stamped photos/video, rainfall totals, eyewitness statements. Take photos from every possible angle. |
| Notify stakeholders | Early notice avoids surprises and preserves legal rights. | Developer, design engineer, contractor, HOA (if any), municipal attorney, insurer. |
2 | Launch a Rapid Technical Investigation
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Compare rainfall to the design storm.
Was this a 10-year event that should have been handled, or a 500-year deluge outside the design envelope? -
Pull the approved plans and inspection reports.
Verify pipe sizes, inlet spacing, detention volumes, outlet controls, and construction inspection sign-offs. -
Order an as-built survey & CCTV pipe inspection.
Confirm grades, buried structure elevations, and look for hidden construction defects or blockages. -
Engage an independent hydrologic/hydraulic (H&H) consultant.
A neutral third party strengthens your negotiating position and eventual courtroom posture.
3 | Trace Responsibility
| Potentially Liable Party | Typical Basis for Liability | Key Documents |
|---|---|---|
| Developer / Subdivider | Subdivision agreement often requires a 1-2 yr maintenance bond guaranteeing performance; subdivision regulations may impose “latent defect” liability even after dedication. | Subdivision or site-plan agreement, letter of credit or surety bond. |
| Design Engineer | Professional negligence (E&O): mis-sized pipes, faulty runoff calcs, missed tailwater conditions. | Engineering report, stamped drawings, H&H computations, state licensing board rules. |
| Site Contractor | Construction defect: improper compaction, inverted slopes, buried debris, short-cut material. | Daily reports, inspector punch lists, pay estimates, compaction tests. |
| Municipality | If the town formally accepted the roads & drainage, it owns the asset, but can still pursue others for latent design/construction defects. | Acceptance resolution, dedication deeds, operation & maintenance (O&M) manual. |
| Homeowners / HOA | Some towns transfer maintenance of ponds and pipes on private streets to an HOA. | Covenants & restrictions, maintenance easements. |
Bottom line: Responsibility usually follows the paper trail, performance or maintenance bonds for the developer, E&O insurance for the engineer, and warranty clauses for the contractor. If dedication hasn’t yet occurred, the town’s leverage is strongest.
4 | Choose Your Enforcement Path
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Call the maintenance bond or letter of credit.
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Most subdivision agreements let the municipality draw funds if the developer doesn’t cure defects within a set notice period.
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Issue a Notice of Violation (NOV).
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If local stormwater or MS4 ordinances are breached, an NOV triggers deadlines and fines.
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Negotiate a Corrective Action Plan (CAP).
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A developer may prefer to fix defects quickly rather than forfeit a bond or risk litigation.
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File a claim against the engineer’s E&O insurer.
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Your consultant’s forensic report will be vital evidence.
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Litigate as a last resort.
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Typically pursued only if bonds/insurance are insufficient or parties dispute fault.
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5 | Design & Construct the Fix Without Breaking the Town’s Bank
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Short-term bypasses: temporary pumps, additional inlet grates, channelized overland relief swales.
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Permanent upgrades: upsizing culverts, adding inlet capacity, retrofit detention (e.g., underground chambers), or off-line bypass weirs.
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Climate-resilience check: consider current NOAA Atlas 14 rainfall and local IDF curves. If climate-driven rainfall intensity has increased, redesign to the new baseline and document why.
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Cost recovery: Track every municipal dollar spent; many states allow recovery of staff time and legal fees in subdivision agreements or via special assessments.
6 | Prevent a Repeat
| Prevention Tactic | How it helps |
|---|---|
| Tighten design-storm standards | Re-evaluate whether a 10-yr storm is still adequate for local conditions. |
| Require certified as-built H&H models | The model must match surveyed elevations before acceptance. |
| Extend maintenance-bond periods | Two-year bonds often expire before problems appear; consider 3-5 yrs. |
| Post-acceptance O&M inspections | Annual inspections of critical structures keep small issues from snowballing. |
Takeaways
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Act fast, document everything, and keep safety first.
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The developer’s maintenance bond is your quickest path to funding a repair if dedication hasn’t occurred.
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Engineers and contractors carry insurance for exactly this scenario—use your forensic findings to support a claim.
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Even after acceptance, latent defect doctrines can bring the original parties back to the table.
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Strengthen future approvals with longer bonds, better as-builts, and updated rainfall data to avoid déjà vu.
When floodwaters recede, a clear paper trail and a disciplined response plan ensure your town isn’t left footing the bill for someone else’s design or construction misstep.