Meandering Stream

Here is an interesting HOA problem:

Our neighborhood is bisected by a stream and a 12 acre wooded flood plain which is owned by the homeowners association. The HOA, as the land owner, is required by law to maintain the stream as free flowing, since it drains a significant part of the township. Any maintenance work that we do in the flood plain which uses other than non-powered hand tools (such as chain saws, front loaders, etc.) requires a permit from the state Department of Natural Resources. The only exception is work that is needed to keep the stream flowing freely ( e.g. cutting and removing a fallen tree that dams the stream). There is really very little need to do any maintenance at all, since it is a natural area.

The wooded flood plain does its intended job. Three or four times each year the stream rises over its banks and floods. However, all bordering homes are above the 500 year flood level, so there is no problem there. Flood insurance is not required.

Within the flood plain the stream bed itself naturally meanders, cutting the bank on one side and depositing silt on the other. In one section the stream bed is slowly meandering toward a home owner's property, endangering a fence. Eventually, it will meander onto the home owner's lot. (Interestingly, the entire lot is above the 500 year flood level.)

The question is, does the HOA have a responsibility, duty or legal obligation to assure that the stream bed does not meander onto the property of a homeowner, but, instead, remains in the flood plain owned by the HOA?

Is the HOA financially responsible (at a cost of several hundred thousand dollars) to reroute the stream bed (with proper DNR permits) in order to protect the home owner's property? Or, is the homeowner responsible to pay for the work on his own property when the stream bed eventually begins eroding his lot and destroying his fence?

Where does the HOA obligation end and that of the individual homeowner begin? Only about 1/3rd of the homes in the association border the flood plain. Our annual budget is about $62,000.

Here is a related issue. When our reserve study was done 10 years ago by a highly-recommended professional with specialization in conducting HOA reserve studies, there was absolutely no mention about setting aside any funding in our reserves for such an eventuality. Indeed, there was no mention at all of a need to set aside funds for any maintenance of the flood plain.

This is a first-ever question for the HOA attorney, and it is out of his area of specialty, dealing with riparian rights and natural resource management laws. He has found no court case in which similar issues have been adjudicated. Engaging a lawyer with experience in natural resource issues to research the problem and offer an opinion is going to break the HOA budget and require a special assessment.

Hi George,

You raise a new but not unexpected question.

First, with regard to your Reserve Study not including the stream:

We had a similar experience in that our highly reputable Reserve analyst did not include our 2 ponds, dry stormwater detention areas, nor a wetland. (But, I will point out that they provided us with a list of common elements to be included and we were able to make additions or deletions. No one thought about including these areas.) All of these areas will eventually require very expensive maintenance/repair – as we are seeing now. Our Reserve fund does not have the $$ to cover this. Needless to say, we are dealing with it (if anyone wants further details, I would be happy to provide info but suggest starting a new post). But your post raises an interesting question: does the HOA have responsibility for the maintenance of this property? We never questioned that as our governing docs clearly show these areas are owned by the HOA and they are part of the Common Elements. I would suggest looking to your governing docs including all amendments to determine who owns that property, if it is part of the Common Elements, and who is responsible for it.

[As a side note, the 3rd part of your question re who is respoonsible is important – it should be spelled out in your governing docs. We have property identified as Common Elements which is comprised of a bermed area and adjacent land with planting beds which runs along the outer perimeter of the area containing our single family homes (we are both single family homes and townhomes/condos). The HOA is responsible for the maintenance of this bermed area. But, for a handful of specific single family home lots, their property boundary includes that portion of the berm area which is adjacent to their back yard. This is very clearly specified in our docs. They also state the HOA is responsible for the maintenance of these areas even though the HOA does not own them.]

But, going back to your post, you ask the question:

“The question is, does the HOA have a responsibility, duty or legal obligation to assure that the stream bed does not meander onto the property of a homeowner, but, instead, remains in the flood plain owned by the HOA?”

Your questions have 3 parts: who owns the property?
Who is responsible for its maintenance?
-and-
Who is responsible for ensuring the stream does not erode the HO’s property?

Your governing docs establish who owns and who is responsible. It sounds like the answer is your HOA. For the 3rd, in my opinion, the answer is the same, the HOA – but I am not an attorney. If this area is defined as a Common Element for which the HOA is responsible, then the HOA is responsible for the stream per my logic.

You also ask:
“Or, is the homeowner responsible to pay for the work on his own property when the stream bed eventually begins eroding his lot and destroying his fence?”

In my opinion, I would not wait to address this problem until it gets to the point of actually cutting into the HO property – for many reasons. To wait means it would be more expensive to address, you were aware of the problem earlier on (an argument the HO could use), and so on.

Finally, as to physical reality of the meander of the stream cutting closer to a HO property:

There are other options available that might be implementable besides a re-routing of the stream. The IDNR should be able to explain these to you. If you need to know who to talk to, please let me know and I can find someone there to recommend you talk to. Not having actually seen your situation I hesitate to recommend any particular option – but there are ways to stabilize banks of eroding streams without negatively affecting the habitat. But, which would be the best approach would depend on your situation. I suggest asking the IDNR to send someone out to meet with you to view and discuss options to address your issue (this has been my experience in the past).

Also, should it be determined that the stream needs to be rerouted (there are no other options), I dislike being the bearer of bad news - there are other permit requirements to be met, Federal, and State via IN Dept of Environmental Management (I know, the bureaucracy of it all…).

Upon rereading your post, you end with:

“This is a first-ever question for the HOA attorney, and it is out of his area of specialty, dealing with riparian rights and natural resource management laws. He has found no court case in which similar issues have been adjudicated. Engaging a lawyer with experience in natural resource issues to research the problem and offer an opinion is going to break the HOA budget and require a special assessment.”

I am not an attorney, but – I think the issue of who is responsible comes down to who owns the property and is responsible for it.

I also think that whichever route you go will cost $$ - HOA address problem - or HOA look for legal opinion – or HOA wait for HO property to be impacted and face a potential lawsuit.

If you would like me to check with an attorney I work with who is knowledgeable in riparian rights, please let me know – actually, I will track him down (assuming he is still with my place of employment)and ask for his thoughts on this.

Best of luck in resolving this issue,
Bonnie

As I understand it, Reserve Funding components are supposed to deal with common elements that have a defined "life."

This stream's "life" cannot really be controlled or documented; it is one of those things that the HOA has reasonable actions already in place and should not try to make this a Reserve Fund item.

JMHO

Yes, Riparian Rights has an extensive definition . . .

I was just saying that in GEORGE's case, the riparian rights of stream owners in a subdivision would be somewhat limited (wading, fishing, bathing?) and ONLY IF their property actually abutted the stream.

From George's description, the land containing the stream has an association easement on both sides.

NOW, there is an issue with this stream changing course (naturally moving), and the landowner WHOSE PROPERTY is being encroached upon, wants some direction.

I say that the Association should ensure the stream's path with minimal dredging OR the homeowner place natural plantings or boulders along his property line, to prevent the stream from coming unto his land.

Thanks for your thoughts. The DNR staff at several levels has been out to inspect and advise. Even they do not have the experience to suggest who has responsibility. If a farmer is not responsible for the meandering of a stream that is his property should it encroach on another farmer's property, does the same law hold for a homeowners association.

The issue is not straight forward, since it deals with laws that regulate agricultural legal drains, drainage boards and the like which may or may not apply in this case.

(I may have added to the confusion by writing that the DNR says the homeowners association "owns" the stream. Any water course, particularly, what was formally called a "legal drain," is not technically "owned" with all the attendant property rights. It can't be dammed, for instance.) The stream is a part of the county-wide storm water management system.

The only specific requirement is that the landowner maintain the stream as free flowing. There is no specific requirement that the landowner act to ameliorate a naturally occurring activity.

And the DNR is amenable to remediation efforts by either the association or the home owner. And there are several remediation options available, some less expensive and less satisfactory than others.

Been there, done that. Done the homework department.

"Also, should it be determined that the stream needs to be rerouted (there are no other options), I dislike being the bearer of bad news - there are other permit requirements to be met, Federal, and State via IN Dept of Environmental Management (I know, the bureaucracy of it all…).

There are no other permits required. The DNR is the agency that has the only responsibility in this situation. Neither the National Resources Conservation Service nor the Department of Metropolitan Development has jurisdiction. It is completely and only subject to DNR regulations and permits.

George,

You stated:
“There are no other permits required. The DNR is the agency that has the only responsibility in this situation. Neither the National Resources Conservation Service nor the Department of Metropolitan Development has jurisdiction. It is completely and only subject to DNR regulations and permits.”

Did the IDNR tell you this? What exactly did they state? Have you checked with IDEM?

Bonnie

Yes, and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes,and yes and yes . . .

We have done our homework. The Indiana Department of Environmental Management (IDEM) is not responsible for a stream that is managed as part of the county-wide storm water management system. Even the metro sewer district which oversees storm water has no interest in getting involved. DNR is the only agency (federal, state, county, municipal) that has jurisdiction in this case.

And, DNR has proven to be very easy to work with. Basically, they will let the association or homeowner do anything reasonable. It is no big deal to them, as long as the stream remains free flowing.

Bonnie you write:

"Who is responsible for ensuring the stream does not erode the HO’s property?

Your governing docs establish who owns and who is responsible. It sounds like the answer is your HOA. For the 3rd, in my opinion, the answer is the same, the HOA – but I am not an attorney. If this area is defined as a Common Element for which the HOA is responsible, then the HOA is responsible for the stream per my logic."

I think you may be mis reading the initial post. The stream is constantly eroding the association owned flood plain. That is what it is supposed to do. That is why the land is there in the first place.

The land is owned by the association, and the association is responsible for maintenance of association-owned land. That is not in dispute. That is clearly outlined in the covenants.

There is absolutely no need for the association to do anything about the stream erosion in the flood plain. The stream is doing nothing it is not supposed to do, or expected to do. It is a natural area, that operates according to the laws of nature.

However, there is nothing in the law (as far as the association attorney has been able to determine)that holds the association is responsible for containing the stream from naturally meandering onto property of other owners.

George, Is there not a "maintenance easement" back from the stream?

Back to the original questions:

"The question is, does the HOA have a responsibility, duty or legal obligation to assure that the stream bed does not meander onto the property of a homeowner, but, instead, remains in the flood plain owned by the HOA?"

****No, because it can't.

"Is the HOA financially responsible (at a cost of several hundred thousand dollars) to reroute the stream bed (with proper DNR permits) in order to protect the home owner's property?"
****No, because it can't

Is the homeowner responsible to pay for the work on his own property when the stream bed eventually begins eroding his lot and destroying his fence?"
****If the landowner was smart, he would begin to shore up HIS PROPERTY line where it meets the concerned area.

*************************
A land survey will clear this up. Either the landowners own UP TO THE BANK of the river, or the association has an easement on either side of the stream and the landowner's property line ends BEFORE it the edge of the stream. (which I really doubt, George.) I also doubt if the Association "owns" the stream, either. Rather, it once owned the land which contained part of a river watershed, and that land was subdivided; a parcel of land that remained undeveloped is the catch basin.

Bottom line: work with the landowner and get a plan for some kind of natural breakwall system. But the landowner foots the bill, unless, of course, he wants a river to come up into his land.

I speak from experience: I live in a sub. that has 250 homes, many lots platted on the 7 miles of canals which cut around twice in the sub. The HOA "owns" the roads which have easements, belonging to the sub. The HOA also owns easments along the canal that are not platted out to legal lots.

Over the last 65 years, the canals have naturally widened and gotten more shallow. All canal front landowners have lost at least 3 - 4 feet of land from thier frontage. Almost 95% of the residents have installed breakwalls, some natural, some stone, steel and wood (requiring Wetlands permits from the Township) along the banks. I suppose you could say the canal "lost its course" but no one would think to come back on the HOA to re-coup lost land.

************************************************

Where does the HOA obligation end and that of the individual homeowner begin?
***********at the property line.

That is an excellent, insightful observation. Hadn't thought about it at all. If the homeowner decided to act before erosion affected his lot, approval would be required by the homeowners association.

It would still require a permit from the DNR, but I doubt that would be a problem at all.

I am still wondering how to sell possible association action to the homeowners, since it would require a special assessment to repair a problem affecting only one home. And I continue to be mindful that 2/3rds of the lots do not even border on the flood plain.

Your analysis is right on target, with a couple of exceptions.

There is no indication that the meandering stream would impact any other lots in the next 100 years. The meander in question is a solitary tight oxbow moving toward the edge of the flood plain.

The DNR has been nothing but cooperative, reasonable and understanding. They desire is to keep the stream free flowing and to prevent property damage from periodic flooding. They are the good guys here.

And the affected homeowners is being quite understanding, reasonable and patient. They are also the good guys here. There is no contentiousness at all.

Underlying my initial post is basically one issue: how to sell a potentially large special assessment to the community to address the problem, if, (and that is still a big if) the association chooses to address the problem. It is an expensive fix. But it is equally expensive, perhaps, to fight this out in court. But there is the very real possibility that the homeowners association could prevail and win fees and costs as well years from now.

The absolute last way I want to see us approach the problem is via fear: a threat of potential lawsuits, particularly if it is not at all clear that the association is financially responsible. It would be a much easier sell if the homeowners association was clearly responsible by law, and if it impacted more than just one homeowner. So I come back to the original question;

The question is, does the HOA have a responsibility, duty or legal obligation to assure that the stream bed does not meander onto the property of a homeowner, but, instead, remains in the flood plain owned by the HOA? Where does the HOA obligation end and that of the individual homeowner begin?

Another way to ask the question is, "If the flood plain were owned by someone other than the homeowners association, would the owner be responsible? This is an unadjudiciated area of law.

It may be four or five years before erosion affects the lot in question. We have time to address the problem.

I am holding off expressing my own opinion on the issue for a couple of days to see what others have to contribute. Let me just say that I would like to see the parties involved do what is reasonable, moral, just and neighborly. My opinion is that the right thing needs to be done.

I appreciate and value your thinking about this. It continues to be helpful. It is clear that you understand the issues.

I disagree with Susan. The HOA owns the land the stream is on and should keep the stream on said land. Further, while it is a single oxbow today, the rest of the stream is in fact moving as well. There will be a time when the stream endangers other property if there is more then one home anywhere close to the woods.

As for selling this, I would suggest you speak with the DNR about getting a permit to allow for a nice walk through the woods. You could possibly put up board walks or some other trail method that will allow for people to go down and enjoy this piece of property. The truth is that there is a lot of beauty hidden down in the area that is now probably only enjoyed by kids playing in the muddy stream.

Also consider that not only the one house will be affected. If neither you nor the homeowner interfere the values of all the houses nearby will be affected. I wouldn't buy a house on the same street as a house that lost its fence to the stream. I don't care how much you say it won't hit mine. I simply would not go there.

Also, as the stream leaves the current flood plain, it will cause the flood plain to expand. This is the nature or nature. Given enough time things tend to level out. The only way any stream or river is static is if it has been canalized which raises other problems.

I see where he said the HOA owns the land where the floodplain is, where the river ends, but I can't find where he says the HOA owns the land the stream is on WHEN IT MEANDERS thru the subdivision.

Like I said before, my bet is that individual homeowners own up to the banks of the river along its route, and they can take individual action to hold their breakwall by working with the DNR.

This really sounds like a storm water drainage system.

This is a familiar scenario in our county: farm land containing a county watershed stream, with drainage toward a natural wetland area is sold to a developer.

The developer asks the zoning board for single family home zoning on all the land, including the wetland area. But due to the wetlands laws, he can't fill and build to get the zoning (R-1A) he wants. So the township "mitigates" the land - letting him put a denser community on the land since he can't develop in the wetlands, and so the stream and the wetlands is preserved and can do its purpose of carrying natural and stormwater run-off. The entire land is platted out around the stream and wetlands area. The developer is allowed to build more homes on the land, but on smaller lots. The subdivision is platted around the wetlands and the stream.

These streams are not "owned" by the HOA, rather the stream runs on property lines. While the HOA "owns" the wetlands area, it is unbuildable and no one can alter or improve or even do anything, incuding mowing, within 25 feet of the border. Both the county and the DNR would be very interested in any action within attempted in that wetlands. It is part of the protected watershed of the area. If the river starts to "meander" the DNR and the county would help the homeowner to prevent loss of property, but the HOA would not be involved, at all.

Thanks Bonnie for your extra efforts. Something here must have struck an responsive chord. As you know the Natural Resources Commission is an autonomous board that basically oversees the Department of Natural Resources. Included in the Commission’s functions are the adoptions of permanent rules, service (either directly or through an Administrative Law Judge) as the “ultimate authority” for appeals from DNR orders, the development of “nonrule policy documents” (general policy statements), and the employment of DNR property managers.

The stream in question is clearly under the sole jurisdiction of the DNR, and they have been nothing but cooperative and helpful. All they want to assure is that the stream remains free flowing. As part of that, they want to assure the integrity of the natural flood plain so that the stream can handle peak drainage periods as it is naturally does. We can't build on or modify the flood plain in a way that would impact its ability to handle peak periods of drainage. Any work, other than keeping the stream free flowing, requires DNR assent via a permit.

Right now water in the stream is about 2 inches deep. During peak runoff periods, it will be, perhaps four or five feet in depth.

When this was farm country, it was called a "legal drain" and was under the jurisdiction of the county drainage board. That was many years ago, when this was farmland. Now the stream is included as part of the county's integrated storm water management system under the administrative supervision of the DNR. (If it were a 42 inch storm drain pipe, it would be the responsibility of the Department of Public Works.)

There is absolutely no question whatsoever that the land that constitutes the flood plain and the stream bed itself is owned fee simple by the homeowners association. There are absolutely no recorded easements on the land whatsoever. And there is no question by anyone, that the homeowners association is responsible to keep the stream free flowing.

The question continues to be, "is the owner of the flood plain over which the stream runs financially responsible to keep the stream bed within the property lines, if it is naturally eroding outside the bounds of the property?"

So far, none of us know. It is an question that is not reflected in statutes or case law so far as research has determined.

You're welcome, George.

Thanks for your post, Susan – you are basically correct as per my post.

George, please give a call to Mr. Lucas. The info I provided came from another State employee who, I was given to understand, had contacted him.

Bonnie

Thanks, Kirk. I see you get it.

With great fear and trepidation that it will only prolong the discussion here and further confuse some people, I have attached a map of the affected area. The yellow areas are owned outright fee simple by the homeowners association without any easements whatsoever (not utility, not access, not nuttin'.) The red lot is the affected property.

Hurrah, George! That is indeed good news – and a tribute to how the Board can work with the HOs in the best interest of the HOA. Good job!

Bonnie

Excellent thoughts, Dwight.

I know what you mean. As part of this process, we did a thorough evaluation of the entire flood plain with the DNR at our side. The stream channel on the northwest of the map is (1) significantly deeper and (2) has not moved in the past 15 years.

"Second, as any good engineer knows, you can't do one thing. Stopping (or even just slowing) the erosion in one area is going to have an impact on other areas downstream. This one property may be temporarily protected, but I would guess that the chances are good that the problem may just end up shifting down stream."

How true! The stream bed continues to change its meander along its entire course through the flood plain. That issue was discussed, and it was decided to take a wait and see approach. We simply don't have the funds now to channelize the stream bed. I fully expect to see some changes downstream, and we may have to deal with them eventually. At least, this is not a "next year" problem.

By building up the reserve fund, we expect to have the money in hand for future work.

I would add that one day the street corner due south of the affected owner may come under attack from erosion as well.

I am glad that you could come to an equitable solution that works for all involved. I think the owner was doing the right thing in allowing access and paying for the fence work to be done. The thing is that he can ensure the fence is removed in the best possible manner to reduce the amount of labor to put it back.

While the cul de sac may not appear to be under threat, it could one day as you know. I also wondered about the street corner directly south of the affected owner. The thing is that the stream could potentially affect everything that abuts the floodplain.

Judy,

This thread is over 5 years old. It's best not to reactivate an old thread as laws change and what may have been good advice in 2008 and already on the thread may be bad advice for your situation.

I'd suggest starting a new topic (by clicking on the "add new topic" icon located directly above the "Topics" headline for the discussions.

assuming the section in bold is correct:

the HOA would be stealing if it used member's funds in an attempt to 'divert' the stream away from a particular HO

the HOA, imo, would require a member vote to amend the CCRs to provide for the protective action for ANY affected HO

CAVEAT EMPTOR

DUUUUUUUH