It is well known that development increases stormwater runoff. The addition of concrete, asphalt, and other impervious cover decreases the amount of rainfall that will infiltrate the soil and increases the volume of runoff. Responsible site design includes the installation of stormwater controls to minimize impacts to adjacent properties and receiving water bodies.

While the design and installation may be adequate, downstream damage can still occur if controls are not properly maintained. In most cases, the responsibility for proper maintenance rests solely on the property owner.

In Douglas County, GA, the Douglasville–Douglas County Water and Sewer Authority (WSA) expanded its utility in 2003 to provide stormwater management services to the City of Douglasville. The service area was expanded in 2004 to include unincorporated Douglas County as well. Lying west of Atlanta, Douglas County is part of the Metropolitan Atlanta area and as such must comply with all requirements for urban areas, including stormwater management.

As part of a comprehensive stormwater management program, WSA needed a type of stormwater maintenance agreement to make sure that privately owned stormwater controls would be properly maintained. Because WSA also provides water and sewer services, it was decided that the maintenance agreement could also include other privately owned infrastructure, such as grease traps, lift stations, and back flow preventers.

A formal Development Agreement form was created, which was to be signed by the owner and the developer of every project before a land-disturbance permit was issued. In order to make sure the agreement would be legally binding on all subsequent property owners and in proper form for recording in the public real estate records, WSA had to make sure that

1. the agent claiming to be the owner was indeed the current property owner;
2. the agent of the owner and/or the developer was legally authorized to enter into such an agreement on behalf of the firm or partnership;
3. any corporations, partnerships, and other business entities were legally registered in the State of Georgia; and
4. the legal description of the property was correct.

Each Development Agreement was prepared by WSA general counsel and signed by the executive director. If any of the above information was inaccurate or if the document was not properly executed, then any attempt to enforce the agreement could be subject to challenge.

Researching the titles, deeds, legal descriptions, and state records became time-consuming and imposed a significant delay in the permitting process. It also placed unreasonable burdens on the general counsel and executive director, who faced more pressing issues.

Other difficulties occasionally arose. For example, some projects were under contract with a buyer of the property who made his purchase conditional on being able to obtain necessary building permits. In such a case, the current owner did not want to sign the agreement, which would hold him liable if the development was not conducted to meet WSA standards. The buyer, who would have control over the development, could not legally sign the document because he was not yet the owner.

Another difficulty was verifying legitimate officers for partnerships and limited liability companies. State records often did not identify officers, making it necessary for each firm to submit a copy of its articles of formation, bylaws, and/or partnership agreements (which are typically private).

In short, the process became time-consuming and complicated. For these reasons, WSA explored methods to improve the process without compromising the potential enforcement actions in the future.

The first step was to revise the WSA rules and regulations to include all of the provisions of the Development Agreement. WSA general counsel developed a modified agreement that was simpler to execute and did not need to be recorded. It was called the Consent to Authority Regulations. This is a simple agreement wherein the owner and the developer declare that they have reviewed WSA rules and regulations and agree to complete compliance during all stages of development and post-development.

The consent is signed and notarized. As part of the document, the signer certifies that he is authorized to sign on behalf of the business entity for which he is signing.

Once properly executed, the consent is filed at WSA. Recording is not necessary because of further documentation that WSA requires to be recorded on the final plat of the property. Along with the consent form, WSA requires the following text to be included on the final plat:

Approval of this plat and acceptance of the project represented herein shall be deemed to be an acceptance by the Douglasville-Douglas County Water and Sewer Authority (the Authority") of all dedicated water mains, sanitary sewer mains, and lift stations that serve more than one property owner, as well as all stormwater collection and conveyance structures located in the public right-of-way, including inlets, catch basins, pipes, ditches, and channels. Approval of this plat and acceptance of the project represented herein shall not be deemed an acceptance, either express or implied, of any stormwater facilities, structures, or features located outside the public right-of-way on private property. All stormwater facilities, structures, and features located on private property shall be owned and maintained by the property owner(s), in accordance with the requirements of the Authority's Rules and Regulations. The Authority shall not be responsible or liable for any drainage outside of the right-of-way; for any drainage leading from drop inlets, catch basins, or surface drainage; for flooding or erosion from storm drains; or from flooding from high water of natural creeks or rivers. This statement is included on this final plat as a condition of acceptance and shall be in the nature of a covenant running with the land, serving as notice to all future owners of the existence of the drainage easements and stormwater features as shown on the plat and the private duty to maintain them in perpetuity. As a condition of approval of this plat and acceptance of this project by the Authority, the developer and owner hereby covenant that any future deed conveying all or any portion of the property or lots shown herein shall specifically refer to this plat and incorporate this plat by reference.

The intent of the above text is to serve as proper legal notification to current and subsequent property owners that they must maintain stormwater controls on their properties.

For residential subdivisions, it is required that detention ponds and other structural controls be located on common space to be deeded to a homeowners' association (HOA). In the event that no HOA is established, the pond remains the property of the developer.

Drainage pipes and ditches may convey runoff across private lots, but a drainage easement must be shown on the final plat, and the infrastructure must be installed so as to keep runoff on the recorded easements. The HOA will also be required to maintain drainage easements.

Still, all of this would be useless without an aggressive inspection program. WSA will inspect privately owned infrastructure annually to determine if maintenance is adequate. If problems are observed, the property owner will be notified in writing and ordered to perform necessary maintenance. Failure to comply may result in various enforcement actions such as termination of water service or an issuance of a citation. In extreme cases, WSA may intervene and fix the problem and bill the owner for the repair cost.

While still in the early stages of implementing the stormwater management program, it is anticipated that WSA will be able to effectively ensure that stormwater controls will be properly maintained for the protection of downstream properties and receiving waters.

Johnny Barron is a project engineer with the Douglasville–Douglas County Water and Sewer Authority in Douglasville, GA. Milbree Lankford is general counsel for WSA.

SW September/October 2005