The Secretaries of Transportation and Natural Resources released the final report of the multi-year study on “orphan outfalls.” The main conclusion of the report is that the law prescribes that the entity responsible for maintenance is the owner of the land, or holder of a drainage easement, at the site of the outfall. The report also identified several recommendations to address this issue going forward, which include: clear communication of maintenance responsibility; creation of a pilot process for the systematic identification of existing unmaintained outfalls; development of a statewide best practices guide; and adoption of dedicated and innovative funding sources.
As previously reported, “orphan outfalls” are the colloquial name for stormwater outfalls without an assigned entity to maintain them. This is most often an issue where eroding stormwater outfalls associated with Virginia Department of Transportation (VDOT) subdivision streets. Specifically, in certain older subdivisions generic drainage easements (not assigned to any party) that extend beyond the VDOT right-of-way are not being claimed and maintained by VDOT. Years of neglect and lack of maintenance has led to severe erosion problems for some private property owners directly impacted by these drainage systems. VACo worked to introduce budget language during the 2020 General Assembly session directing the relevant Secretaries to study the issue further and produce recommendations to the General Assembly. VACo further assisted the Virginia Department of Transportation (VDOT) in the collection of data from our members.
Based on information collected by both VDOT and VACo, the occurrence of unmaintained outfalls across the Commonwealth appear in varying degrees, as does the severity of the problem where it does occur. The report concluded that localities experiencing more significant impacts appear to have limited resources available to identify and address the problem on private property until prompted by a citizen complaint, by which time the damage from a lack of maintenance has magnified.
According to the report, the modified common law rule, which has been well settled in Virginia for more than a century, stands for the proposition that the owner of the land upon which the outfall is located bears sole responsibility and liability for the outfall, including the maintenance thereof (with limited exceptions). The obligation attaches to the fee owner of the property or, if transferred by easement, to the grantee holder of such easement. The rules apply equally to both private and public land owners, including political subdivisions and agencies of the Commonwealth.
With the creation of the state highway system in 1932, commonly referred to as the “Byrd Act,” control, supervision, management and jurisdiction of county roads was transferred to the state highway system (with the exceptions of Arlington and Henrico Counties). As many of these roads were established by prescriptive easement, by law, the state’s authority arising from a prescriptive easement is limited by a width of 30 feet, measured from the center of the road. The report speculates that it is possible that some of these outfalls serving to remove stormwater from VDOT-maintained roads obtained by prescriptive easement remain outside of the state-controlled rights of way. However, given that the majority of identified unmaintained outfalls were installed after 1960, it is far more likely that the development of land and the varying practices of deed recordation appears to have had the greatest effect. Without a properly granted and recorded easement, the responsibility to maintain the outfall remains with the fee owner of the land.
In conclusion, the report recommends clear communication of the responsibility of assigned maintenance of all outfalls with either the landowner or easement holder occur at the time that property conveys. Furthermore, in order to address existing unmaintained outfalls, a systematic process to identify and categorize such legacy outfalls would be necessary. The most likely first step in this process would be the creation of a pilot study by VDOT with a willing county. Additionally, the report recommends the creation of a statewide best practices guide, which would arise from a study of proactive and successful local practices, and which might be developed in collaboration between VDOT, Soil & Water Conservation Districts, DEQ, and VACo. Lastly, in addition to utilizing existing funding options, the General Assembly may wish to consider establishing a program for outfall maintenance modeled after DEQ’s Stormwater Local Assistance Fund, which provides matching grants to local governments for the planning, design, and implementation of stormwater best management practices.
VACo is thankful to the Secretaries of Transportation and Natural Resources and their and relevant agency staffs for the study of this topic and the completion of this report. VACo stands ready to assist them with any further analysis or action on this issue.
VACo Contact: Jeremy R. Bennett