LEGAL CONSIDERATIONS FOR ADDRESSING BASEMENT BACK-UPS: LIABILITIES AND ISSUES OF CONCERN FOR MUNICIPALITIES

I.INTRODUCTION This outline addresses issues of concern for municipalities with regard to basement back-ups. First, it addresses a municipality's liability exposure for damage resulting to private property from sewer back-ups. It will address common law and statutory concepts of immunity on a broad and general basis, including the trends in such liability in the various states. It will address those types of back-ups for which municipalities are liable. The outline then turns to address some specific issues regarding the logistics of preventing basement back-ups including the legal rights and responsibilities involved in solutions, the technical fixes that will or will not work under the law and those back-ups which might rightfully be the responsibility of the homeowner or another private user of a collection system. Finally, this outline discusses basement back-ups and their role in the NPDES permitting scheme, as well as the proposed Capacity Management Operation and Maintenance Rules (“CMOM”).