Defenses to Claims of Nuisance Due to Storm Water Flooding

When persons seek to impose liability on others claiming a nuisance arising from flooding or drainage, it is important to first assess whether the up hill owner or others have done anything to change the natural flow of water.  A party seeking to impose liability on an up hill owner for flooding his property must do more than show that the source of the flood waters is from up hill.  All water flows down hill.  

Georgia Implementation of the Clean Water Act

Where a property owner is suffering flooding from streets or other areas where water has not been treated the owner may have a claim under Georgia or federal law.  The Clean Water Act of 1972, 33 U.S.C. Section 1251, et seq., incorporates state standards as limitations on discharge under the Act.     A discussion of the history of water pollution laws may help explain the state implementation and setting of water quality standards.  An opinion of the United States Court of Appeals for the Eleventh Circuit, considering a case generated in a Georgia District Court, explained the context of local laws regarding storm water discharges as follows:

In 1972 Congress passed the Clean Water Act (“CWA”) amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal water pollution control program which had “been inadequate in every vital aspect” since its inception in 1948. EPA v. State Water Res. Control Bd., 426 U.S. 200, 203, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578 (1976). The amended CWA absolutely prohibits the discharge of any pollutant by any person, unless the discharge is made according to the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. § 1311(a). This “zero discharge” standard presupposes the availability of an NPDES permit, allowing for the discharge of pollutants under the conditions set forth in the permit. Id. § 1342(a)(1). NPDES permits are usually available from the Environmental Protection Agency (“EPA”); however, 33 U.S.C. § 1342(c)(1) suspends the availability of federal NPDES permits once a state permitting program has been submitted and approved by the EPA. Thus, if a state administers its own NPDES permitting program under the auspices of the EPA, applicants must seek an NPDES permit from the state agency. See 33 U.S.C. § 1342(c)(1); Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).  On June 28, 1974, the State of Georgia was authorized by EPA to administer an NPDES program within its borders. The Georgia agency responsible for administration of that program is the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources. EPA-issued NPDES permits are thus not available in Georgia.

Hughey v. JMS Development Corp.,  78 F.3d 1523, 1524 -25 (11th Cir. 1996).  

Special Taxation Districts to Handle Infrastructure Maintenance

One of the ideas  policy makers discuss to address the problems with funding storm water system maintenance is to create special tax districts.  These districts would then impose assessments by geographic watershed areas to fund special projects including storm water system maintenance.   By adopting and implementing the districts on a local scale, local governments would hope to avoid the problems of approving and earmarking unpopular tax increases across the whole jurisdiction.   Special tax districts could make the adoption and implementation of more taxes politically acceptable.  The district could be used to justify the tax by area.

Law and Policy Related to Drainage and Flooding

Several recent decisions of the Georgia Supreme Court indicate that the court may be willing to loosen the civil law of drainage rights in order to relieve local governments from their duties related to maintenance of storm water systems.   In Kaplan v. City of Sandy Springs, the Supreme Court  issued an opinion that held that a county cannot accept a developer's express dedication of storm water pipes to the public without a written deed instrument from the developer to the county.     In  City of Atlanta v Kleber, the court held that the statute of limitations to address flooding caused by a defective pipe ran from the date of the original installation of the pipe.   These two opinions gave a county and a municipality means to avoid maintenance of pipe systems carrying public water from up stream development through private property owners' yards.