Page 18 - Mar-Apr2023 Vol40 No7

MTAS By John Chlarson
Drainage: Responsibilities &

Limitations of Local Government

Drainage law in Tennessee is governed
by the natural flow rule. The natural flow The natural flow rule says water has a
rule says water has a natural easement natural easement along its natural paths,
along its natural paths, and the upper
and lower landowners must accept water and the upper and lower landowners
that naturally flows, or that would have
naturally flowed, onto the property in must accept water that naturally flows,
question. (as opposed to the “common or that would have naturally flowed, onto
enemy” doctrine.) [Dixon v. Nashville,
301 S.W.2d 178 (1976); Miller v. City of the property in question.
Brentwood, 548 S.W.2d 878 (1977); Butts
v. City of South Fulton, 565 S.W.2d 879
(Tenn. App. 1978); Yates v. Metropolitan states that all government entities are Finally:
Government Nashville & Davidson guaranteed “-Immunity from suit … When looking at a drainage complaint
County, 451 S.W.2d 437 (1969).] for injury…caused by negligent act or here is a list of some of the questions the
That rule is easier to state than to apply omission of any employee within the local government representative needs to
in some cases, but generally a landowner scope of his employment…if the injury ask themselves:
cannot: arises out of: • Is my supervisor aware of the issue?
1. Impede the natural flow of water. …(3) the issuance, denial, suspension, • Is the drainage issue on city property, or
or revocation of, or by failure to issue,
2. Increase the natural volume of water. deny, suspend, or revoke, any permit, on a city drainage easement or right of
3. Increase the natural velocity of water. license, certificate, approval, order, or way?
The design engineer should do his similar authorization; • Does the drainage issue impact the
or her part to ensure that drainage, (4) a failure to make an inspection, or public health or safety?
erosion, and sediment control problems by reason of making an inadequate or • Will resolving the drainage issue
are avoided during the construction negligent inspection of any property; benefit the public in any way, or just the
of the project and thereafter, with the A city generally has no responsibility individual property owner?
completed project. However, approval or for drainage problems among private
acceptance of a drainage design by the landowners unless the city has itself • Is the drainage issue causing damage to
local government does not relieve the violated the natural flow rule. public infrastructure?
design engineer of either professional • Is the drainage issue confined strictly to
liability or ethical responsibility. Designs [See Miller v. Brentwood, Yates v. Metro. private property?
are normally reviewed for compliance Gov. Nashville & Davidson County.] • Is the drainage issue a complaint
with required design standards and Likewise, in the absence of such a between citizens?
codes, with the government reviewer violation by the city, the city generally has
taking no responsibility for the outcome no obligation to maintain the integrity of The answer to some of these questions
of the project as designed. The ultimate the drainage, and no right to go onto the may not be readily apparent, and in some
responsibility (and/or liability) rests on properties in question cases, an unbiased 3rd party opinion
the design engineer who seals the plans. An exception to this would occur in a might be helpful. It is possible in that in
Local governments have specific case where the landowner has created the some situations the Municipal Technical
protections set forth in Tennessee state drainage problem by violating subdivision Advisory Service (MTAS) may be able to
law. Tennessee Code Annotated § 29-20- regulations, stormwater ordinances, or provide assistance.
204 states that all government entities are other ordinances or laws. In such a case For MTAS assistance contact either:
guaranteed: the city could deal with the problem as a John Chlarson P.E.
(a) Immunity from suit …for injury… compliance issue. 731-425-4785
caused by the dangerous or defective Other than this exception, not only does john.chlarson@tennessee.edu
condition of any public …structure, the city have no responsibility in the case Brad Peters P.E.
dam, reservoir, or other public of drainage problems between private 865-974-0416
improvement… landowners, but the city also has no legal brad.peters@tennessee.edu
Tennessee Code Annotated § 29-20-205 standing in court in such a case.

18 TPW March/April 2023