Surface Water Flooding in Urban Areas: Rights and Remedies under the Common-Enemy Doctrine
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Urban flooding is an ever increasing problem as land development intensifies in expanding metropolitan areas. This situation not only has a significant impact on the physical environment, but has substantial legal consequences as well. In urban flooding situations, rivers and streams pose obvious flood threats, but the damaged area is generally restricted to a definable flood plain. Surface water presents a more subtle and pervasive problem; with heavy rainfall or poor drainage, surface runoff can submerge land not ordinarily considered subject to flood damage, further increasing riparian problems as the concentrated runoff finds its way to streams and rivers. Although flood control measures may be instituted to reduce some of the problems, occasional flooding must be anticipated as a natural result of urbanization. Just as our ancestors accepted floods as the price of living close to a river, urban dwellers must accept some surface water excess as one of the inconveniences of metropolitan living. Some urban flood problems, however, are unnecessary. Urban dwellers need not stoically accept the damage and inconvenience caused by developers and private landowners who disregard the safety and well-being of adjoining property and residents. In addition to municipal ordinances through which a city may enforce grading and drainage standards, the victim may take direct legal action against the offending landowner or developer. This comment will examine various common law remedies available to resolve surface water drainage problems as exemplified in three geological situations, typical of urban development. The scope of this article will be limited, however, to jurisdictions employing the modified common-enemy doctrine. The three geological situations are: 1. Landowner is on the lower end of a watershed and upper development causes increased velocity or volume of runoff. 2. Landowner occupies a depression and subsequent development causes standing or slow draining water. Two distinct types, the single lot depression and the larger urban depression, yield different legal results. 3. Landowner is recipient of collected artificial discharge from another landowner.
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