SW8970631_Email Response to Complaint_20211018

Georgoulias, Bethany
From: Hall, Christine
Sent: Monday, October 18, 2021 4:53 PM
To: [e-mail]
Cc: Brigit Flora; Sams, Dan
Subject: Meadowlands subdivision drainage complaint, SW8 970631
Attachments: 2021 10 13 Itr from C.E. Wagner (Calabash) re Stormwater issue in the Me .... pdf;
FAQ_Private Property Flood ing_20190725.pdf, Pendergrast - Aiken Water Rights and
Drainage Liability.pdf, GS 77-14 Obstructions in streams and drainage.pdf
Mr. and Mrs. Wagner,
Your letter dated July 5, 2021 (VY attachment) was sent my way on October 13, 2021. The post construction state
stormwater program is the group responsible for issuing the state stormwater permit referenced in your letter for the
Meadowlands Golf Club, SW8970631.
It is a common misconception that this post -construction state stormwater program or even the State is responsible for
handling drainage or flooding concerns, similar to those described in your letter. The purpose of this program is to
protect the quality of the receiving waters. Since this community is permitted as a low density subdivision, this
protection is provided by ensuring that the built -upon area (BUA) limitations are followed, the required curb outlet
swales or vegetated areas are being provided, and that the vegetated conveyances are not piped (except to cross under
BUA). Low Density permits, however, do not guarantee nor require drainage. Due to the nature of coastal areas with
very limited topography, it is common for swales and low spots to contain water until it either infiltrates or
evaporates. It is not considered a compliance issue but could be a civil matter between the two parties.
Since the State does not have jurisdiction over quantity concerns related to drainage and flooding, it is often left to the
local jurisdictions to regulate. Brunswick County does have some ordinances and requirements related to flooding and
drainage but I understand this development pre -dates their program. Additional information regarding flooding or
drainage issues can be found on the following website: NC DEQ: Flooding Guidance. I have also attached additional
documents that you may find informative.
If you'd like to look at the permit or the file and documents on record for the permit SW8070631, this program is in the
process of scanning our files and this is one of those files that has already been scanned. You can access the scans using
either the laserfiche link on this website (NC DEQ: Stormwater Program) or by using the last magnifying glass on the
active and expired permit map available on this website (https://deg.nc.gov/SW-maps) to search for the permit
number. The link at the bottom of the information on this website will direct you to the same electronic permit file.
If you have further questions about this post construction state stormwater permit, please let me know.
Christine Hall, PE
Wilmington Regional Stormwater Program Supervisor
Division of Energy, Mineral and Land Resources — State Stormwater Program
North Carolina Department of Environmental Quality
Office:
910 796 7215
Direct:
910 796 7339
Email:
christine.hall(a�ncdenr.clov
Address:
127 Cardinal Drive Ext.
Wilmington, NC 28405
E�

Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.

FREQUENTLY ASKED QUESTIONS
Flooding Issues on Private Property
mat
Why is my property flooding?
Flooding can occur anywhere and stormwater runoff can be the culprit. When it rains, a stormwater
collection system consisting of inlets, storm drains, pipes and/or ditches typically carries runoff to local
water bodies where the water can move safely downstream. The stormwater collection system is
designed to handle normal rainfall events for the area and its components are usually maintained by a
local government, NCDOT and/or private citizens, businesses and Homeowners Associations depending
upon location.
Areas that are frequently subject to flooding usually lie within a designated floodplain and are
cooperatively regulated by the Federal Emergency Management Agency (FEMA) and local governments.
However, flooding can occur outside of the designated floodplain and other normally flood -prone areas.
You can research your flood risk at https://flood.nc.gov.
Localized or regional flooding can result from impacts to the stormwater collection system and/or local
water bodies. Those impacts are usually because too much water is trying to get into the system or
something is preventing the water from flowing freely through the system. Rainfall amounts (total
inches) and intensities (inches per hour) are highly variable, and atypical storm events can temporarily
overwhelm any stormwater collection system. Blockages, obstructions and clogs in the stormwater
collection system and/or local streams can also reduce the ability of the system to carry runoff. This can
cause water to back up even during normal storm events. The water table (zone of saturation) also rises
and falls with seasonal variations in rainfall, evaporation and plant transpiration, which can result in
standing water in ditches and low lying areas.
Development can also contribute to flooding
NATURAL LANDSCAPE
DEVELOPED LANDSCAPE
because surfaces covered by pavement and
rooftops (also known as impervious surface
E_P.t­pi,.ticn
EwpM&apkWfta or built upon area) result in more runoff than
40%
'4" undeveloped natural areas do. Natural areas
allow runoff to infiltrate into the ground and
can result in as little as 10% runoff from a
InkNra#ion
ImffitrrEkn
ta storm. Development includes impervious
surfaces that prevent infiltration, so more
rainfall runs off and at a faster speed. High
Ref. EPA.govsWMM
density development can result in as much
as 55% of the rainfall running off.
Who should I contact for help with flooding issues?
The first point of contact for flooding issues should always be your local government. They can provide
technical assistance with water quantity issues involving the public stormwater collection system',
FEMA-designated floodplains and other flood -prone areas.
'Typically, the property owner is legally responsible for maintenance of the drainage system located on their property. This can
include ditches, stream banks, and even buried pipes. The public stormwater collection system is located in the public
street/right-of-way, on property owned by the local government, or in a dedicated public drainage easement that should appear
on your property map.

DEi FREQUENTLY ASKED QUESTIONS
r: IF..,e�..�ll 7. --ram Flooding Issues on Private Property
Questions your local government will likely ask you include:
• Does flooding occur during abnormally heavy rains or almost every time it rains?
• Has something upstream of your property changed the drainage or runoff pattern?
• Have you maintained the stormwater collection system on your property?
• Do you live in a FEMA floodplain?
For flooding or drainage issues on state-owned streets and rights -of -way, you should contact the N.C.
Department of Transportation State Road Maintenance Division at 919-733-2191. If you are unsure
whether a public street is state-owned, your local government can assist you.
What does the Department of Environmental Quality (DEQ) have to do with stormwater?
In North Carolina, stormwater collection systems carry runoff, and
the pollutants in it, directly into surface waters such as creeks,
lakes, rivers and sounds. Stormwater pollutants come from a
variety of sources including vehicles, landscape maintenance, and
some even fall from the sky as atmospheric deposition. Pollutants
on pervious surfaces such as grassed/landscaped areas can seep
into the ground when it rains and the pollutants are filtered out by
the plants and soil. Pollutants on impervious surfaces such as
rooftops, roads, and driveways accumulate until runoff carries them
into the stormwater collection system and local water bodies.
The DEQ has statutory authority to manage the state's water
resources to maintain, protect and enhance water quality [Ref.
N.C.G.S. Article 21, Chapter 143]. DEQ's various stormwater
programs are designed to manage water quality by controlling the
pollutants that are in stormwater runoff. DEQ does not have
statutory authority to regulate or remedy water quantity (flooding)
issues.
A cornerstone of the state's water quality stormwater management strategy is requiring post -
construction runoff controls for new development and redevelopment projects of 1-acre or more.
These projects are required to obtain a stormwater permit and manage the quality of stormwater
leaving the site. There are two primary methods for meeting the water quality permit requirements —
low density and high density. Low density projects must limit the amount and concentration of
development to prevent pollutants and allow stormwater to naturally pond and infiltrate into the soil.
High density projects must collect stormwater runoff and use engineered stormwater control measures
(SCMs) such as wet ponds, wetlands, bioretention cells, etc. to remove pollutants before the runoff
leaves the site. The required engineering standards for both low and high density projects are designed
specifically for water quality and do not address flooding.
2

FREQUENTLY ASKED QUESTIONS
Flooding Issues on Private Property
a
Stormwater Control Measures (SCMs) in high density development are required to treat the volume of
the "first flush" of runoff, which typically carries (flushes) the majority of accumulated stormwater
pollutants. In order to maintain pollutant removal capacity in the devices, SCMs are normally designed
to bypass runoff in excess of the first flush. In some cases, SCMs may also be required to draw down, or
discharge, the treated stormwater over a period of time in order to provide adequate treatment. This
can result in continuous flows from some SCMs for 2 to 5 days following each storm event. Again, this is
to achieve pollutant removal, it is not designed to control water quantity.
Post -construction stormwater permits are issued by either DEQ or a local government entity. If you
have a water quality complaint involving a post -construction permitted project, you can determine the
appropriate permitting authority to contact by using the Stormwater Permitting Interactive Map on the
DEQ Stormwater Program web page at https.Ildeg.nc.goylsw. Please note that the project must comply
with the issued water quality permit and DEQ does not have the authority to regulate or require water
quantity controls or measures to address flooding issues.
What can I do to prevent flooding?
Flooding can happen anytime and anywhere. It is a challenging problem to manage, but
J& there are a few things you can do to help prevent flooding and minimize its impacts when it
Mom. does occur:
• Avoid building alongside water bodies, in the flood plain, and in other flood -prone areas
where structural damage is likely to occur.
• Maintain any privately owned stormwater collection system components on your
property to keep them free -flowing.
• Immediately report publicly owned stormwater collection system issues to your local
government.
• Collect litter, yard waste, debris, grass clippings and leaves so they do not enter and
obstruct the stormwater collection system or local streams.
• Disconnect roof drains from paved areas.
• Install rain gardens to infiltrate runoff into the soil.
• Install water loving wetland plants in high water table/saturated areas.
• Install rain barrels to capture and use runoff.
3

Article 2.
Obstructions in Streams.
§ 77-12. Obstructing passage of boats.
If any person shall obstruct the free passage of boats along any river or creek, by felling
trees, or by any other means whatever, he shall be guilty of a Class 1 misdemeanor. (1796, c.
460, s. 2; R.C., c. 100, s. 6; Code, s. 3711; Rev., s. 3561; C.S., s. 7376; 1993, c. 539, s. 580;
1994, Ex. Sess., c. 24, s. 14(c).)
§ 77-13. Obstructing streams a misdemeanor.
If any person, firm, or corporation shall fell any tree, or put any obstruction, except for the
purposes of utilizing water as a motive power, in any branch, creek, stream, or other natural
passage for water, whereby the natural flow of water through such passage is lessened or
retarded, or whereby the navigation of such stream may be impeded, delayed, or prevented, the
person, firm, or corporation so offending shall be guilty of a Class 2 misdemeanor. In addition to
any fine or imprisonment imposed, the court may, in its discretion, order the person, firm, or
corporation so offending to remove the obstruction and restore the affected waterway to an
undisturbed condition, or allow authorized employees of the enforcing agency to enter upon the
property and accomplish the removal of the obstruction and the restoration of the waterway to an
undisturbed condition, in which case the costs of the removal and restoration shall be paid to the
enforcing agency by the offending party. Nothing in this section shall prevent the erection of fish
dams or hedges across any stream which do not extend across more than two thirds of its width
at the point of obstruction. If the fish dams or hedges extend more than two thirds of the width of
any stream, the said penalties shall attach. This section may be enforced by marine fisheries
inspectors and wildlife protectors. Within the bounds of any county or municipality, this section
may also be enforced by any law enforcement officer having territorial jurisdiction, or by the
county engineer. This section may also be enforced by specially commissioned forest
law -enforcement officers of the Department of Agriculture and Consumer Services for offenses
occurring in woodlands. For purposes of this section, the term "woodlands" means all forested
areas, including swamp and timber lands, cutover lands, and second -growth stands in previously
cultivated sites. (1872-3, c. 107, ss. 1, 2; Code, s. 1123; Rev., s. 3559; C.S., s. 7377; 1975, c.
509; 1977, c. 771, s. 4; 1979, c. 493, s. 1; 1987, c. 641, s. 12; 1989, c. 727, s. 218(19); 1991, c.
152, s. 1; 1993, c. 539, s. 581; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.119(a);
2013-155, s. 3.)
§ 77-14. Obstructions in streams and drainage ditches.
If any person, firm or corporation shall fell any tree or put any slabs, stumpage, sawdust,
shavings, lime, refuse or any other substances in any creek, stream, river or natural or artificial
drainage ravine or ditch, or in any other outlet which serves to remove water from any land
whatsoever whereby the drainage of said land is impeded, delayed or prevented, the person, firm
or corporation so offending shall be guilty of a Class 2 misdemeanor: Provided, however,
nothing herein shall prevent the construction of any dam or weir not otherwise prohibited by any
valid local or State statute or regulation. In addition to any fine or imprisonment imposed, the
court may, in its discretion, order the person, firm, or corporation so offending to remove the
obstruction and restore the affected waterway to an undisturbed condition, or allow authorized
employees of the enforcing agency to enter upon the property and accomplish the removal of the
obstruction and the restoration of the waterway to an undisturbed condition, in which case the
NC General Statutes - Chapter 77 Article 2 1

costs of the removal and restoration shall be paid to the enforcing agency by the offending party.
This section may be enforced by marine fisheries inspectors and wildlife protectors. Within the
boundaries of any county or municipality this section may also be enforced by any law
enforcement officer having territorial jurisdiction, or by the county engineer. This section may
also be enforced by specially commissioned forest law -enforcement officers of the Department
of Agriculture and Consumer Services for offenses occurring in woodlands. For purposes of this
section, the term "woodlands" means all forested areas, including swamp and timber lands,
cutover lands and second -growth stands on previously cultivated sites. (1953, c. 1242; 1957, c.
524; 1959, cc. 160, 1125; 1961, c. 507; 1969, c. 790, s. 1; 1975, c. 509; 1977, c. 771, s. 4; 1979,
c. 493, s. 1; 1987, c. 641, s. 13; 1989, c. 727, s. 218(20); 1991, c. 152, s. 2; 1993, c. 539, s. 582;
1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 1IA. 119(a); 2013-155, s. 4.)
§§ 77-15 through 77-19. Reserved for future codification purposes.
NC General Statutes - Chapter 77 Article 2 2

I. WATER RIGHTS AND DRAINAGE LIABILITY
A common complaint received by the Land Quality Section is in regard to activities
that affect the flow of either surface water or stormwater runoff. Adjacent property
owners are often negatively impacted by the grading activity of a construction site that
redirects an existing watercourse or the stormwater runoff above that owner. The
potential results can include the erosion of lands below the property, flooding of the
property or misdirection of an existing stream away from the property.
The North Carolina Sedimentation Pollution Control Act allows the Land Quality
Section to address the downstream erosion of property. This is outlined within 15A
NCAC 0413.0109. The approved plan should include data for the point of discharge
from the property that confirms that design velocity based on the 10-year storm does
not exceed the acceptable velocity for various soil types (paragraph (d)). If after
grading commences, downstream erosion is observed, corrective actions and a
revised plan may be required that addresses decreasing the water's flow velocity to
the maximum allowable value as outlined in 15A NCAC 04B.0109(d).
The SPCA only deals with erosion and sedimentation. If stormwater runoff is free of
sediment and is not a cause of erosion downstream, its relocation is outside any
regulatory authority of the Land Quality Section.
Land -disturbance within a watercourse should minimize the effect on that
watercourse, as required in 15A NCAC0413.0112. However, property owners are
allowed to improve their property including the redirection or increase of water as long
as the owner uses reasonable care to avoid causing unnecessary harm to others. A
court ruling to that affect follows this page. The case is commonly known as
Pendergrast versus Aiken, and it establishes the rights and limitations to water runoff
redirection by adopting a "reasonable use rule".
The "reasonable use rule" generally means that landowners are allowed to make
reasonable use of their lands without liability. However, reasonableness is a question
of fact, determined in a civil action by weighing the gravity of harm to a plaintiff (the
injured landowner) against the utility of the defendant. There are several implications
of the Pendergrast versus Aiken ruling-
1 . Surface water litigation will be addressed on a case -by -case basis.
2. Reasonableness of the land use by either party will be a question of fact for a
court judge to decide.
3. Surface water drainage disputes are private nuisance actions which arise when
one landowner either diverts or increases the flow of water onto another's
property. If the injured landowner does not proceed with private nuisance action
(civil action), there is no other judicial remedy available.

J. W. PENDERGRAST and wife, CATHERINE W. PENDERGRAST
VS.
R.C. AIKEN and wife, M.E. AIKEN, W. L. AIKEN, and PERRY
ALEXANDER CONSTRUCTION COMPANY
No. 48
SUPREME COURT OF NORTH CAROLINA
236 S.E.2d 787, 293 N.C. 201
August 23, 1977, Filed
Plaintiffs appeal from decision of the Court of Appeals, 32 N.C.App. 89, 231 S.E.2d 183 (1977),
upholding judgment of Martin, J., entered at the 19 January 1976 Session, Buncombe Superior Court.
1. Waters and Watercourses § 1 — drainage problems — surface waters defined
For purposes of analyzing drainage problems, the N.C. Supreme Court has combined diffuse surface
waters, watercourses and overflow waters from the ocean into the broader category of surface waters.
2. Waters and Watercourses § 1— surface water drainage — common enemy rule defined
The common enemy rule is that a landowner is privileged to use and improve his land for proper
purposes even though the natural flow of surface water is thereby altered so long as he uses reasonable care to
avoid causing unnecessary harm to others.
3. Waters and Watercourses § - surface water drainage — reasonable use rule defined
The civil law rule subjects a landowner to liability whenever he interferes with the natural flow of
surface waters to the detriment of another in the use and enjoyment of his land; North Carolina has long
adhered to this rule.
4. Waters and Watercourses § 1— surface water drainage — reasonable use rule defined
The reasonable use rule allows each landowner to make reasonable use of his land even though, by
doing so, he alters in some way the flow of surface water thereby harming other landowners, liability being
incurred only when this harmful interference is found to be unreasonable.
5. Waters and Watercourses § 1— surface water drainage — rule of reasonable use adopted —
civil law rule abandoned
The Supreme Court formally adopts the rule of reasonable use with respect to surface water drainage
and abandons the civil law rule, since the reasonable use rule is more in line with the realities of modern life,
and consistency, fairness and justice are better served through the flexibility afforded by that rule.
6. Water and Watercourses § 1— surface water drainage — reasonable use rule — harm to
plaintiff weighed against utility of defendant's conduct

The reasonable use rule explicitly, as in the case of intentional acts, or implicitly, as in the case of
negligent acts, requires a finding that the conduct of defendant was unreasonable, reasonableness being a
question of fact to be determined in each case by weighing the gravity of the harm to the plaintiff against the
utility of the conduct of the defendant.
7. Nuisance § 7; Waters and Watercourses § 1— surface water drainage — reasonable use rule
— alteration reasonable and harmful — compensation required
Under the rule of reasonable use with respect to surface water drainage, even should alteration of the
water flow by the defendant be "reasonable" in the sense that the social utility arising from the alteration
outweighs the harm to plaintiff, the gravity of the harm may be found to be so significant that it requires
compensation regardless of the utility of the conduct of defendant.
8. Nuisance § 7; Waters and Watercourses § 1 — culvert in bed of stream — reasonable use rule
— civil law rule — instructions contradictory
In an action to recover damages for flooding allegedly caused by defendants' placement of a 36-inch
culvert in the bed of a stream flowing from plaintiffs' land onto and through defendants' land, the trial court
erred in instructing the jury on the reasonable use rule and the civil law rule with respect to surface water
drainage, since the instructions were contradictory and served only to confuse and mislead the jury.
9. Nuisance § 7; Waters and Watercourses § 1— culvert in bed of stream —nuisance and
damages — separate issues — instructions improper
In an action to recover damages for flooding allegedly caused by defendants' placement of a 36-inch
culvert in the bed of a stream flowing from plaintiffs' land onto and through defendants' land, the trial court
erred in instructing the jury that it must first determine whether defendants created a nuisance, and then
separately decide whether plaintiffs were harmed thereby, and the court erred in stating that the jury could
answer the first issue yes and the second issue no, since the jury could not find that a nuisance existed at all
without a finding of substantial damage to plaintiffs.
10. Nuisance § 7; Water and Watercourses § - culvert in bed of stream — flooding —nuisance —
effect of factors downstream — instructions
In an action to recover damages for flooding allegedly resulting when defendants placed a 36-inch
culvert in the bed of a stream which crossed plaintiffs' land, then flowed onto and across defendants' land,
and then was channeled through two 24-inch culverts under a street, the effect, if any, of the two 24-inch
culverts had no legal significance relative to the dispute between plaintiffs and defendants, and the court erred
in instructing the jury that it might consider the inadequate drainage through the 24-inch culverts from
defendants' land.
SYLLABUS
Plaintiffs' evidence tends to establish the following:
Plaintiffs are the owners of a tract of land which borders U.S. Highway 25 in Buncombe County in an
area of commercial development known as Skyland. On this tract plaintiffs own a brick and concrete -block
building consisting of an upper floor and a basement with a dirt floor.
01992-1996 by The Michie Company, a division of Reed Elsevier Inc., an Reed Elsevier Properties, Inc. All Rights Reserved

v W�
State of North Carolina ;;
H. THORNIA113c, Department of Justice
�rc RNEZvt;Fvr_k1kj. P.O. B03C 629
RALEIGH
- - - 27602.0629
January 6, 1988 -
�Y
MEMORANDUM
TO: Craig Dealt
3�V
Land Quality Section, NRCD
FROM: Kathryn Jones Cooper(��
Assistant Attorney General
RE: Implications of Pendergrast v. Aiken
You previously asked Dan Oakley to provide your office
with a memorandum summarizing the Pender rast v. Aiken, 293
NC 201, 236 SE2d 787 (1977), decision and its implications.
Dan asked me to respond to your request.
Pendergrast_v. Aiken, supra, involved a private lawsuit
over surface water damage caused by an undersized culvert.
In this case, the North Carolina Supreme Court analyzed the
various legal rules applicable to surface water drainage,
and upon the completion of its analysis, the Court adopted
the "reasonable use rule." The Court expressed the
reasonable use rule As follows:
Each possessor is legally privileged to make a
reasonable use of his land even though the flow of
surface water is altered thereby and causes some harm
to others, but liability is incurred when his harmful
interference with the flow of surface waters is
unreasonable and causes substantial damage.
Analytically, a cause of action for unreasonable
interference with the flow of surface waters causing
substantial damage is a private nuisance action, with
liability arising where the conduct of the landowner
making alterations in the flow of the surface water is
either (1) intentional and unreasonable, or (2)
negligent, reckless or in the course of an abnormally
dangerous activity. (293 NC at 216, 236 SE2d at 796).
The "reasonable use rule" generally means that
landowners are allowed to make a reasonable use of their
lands -without liability. However, reasonableness is a

-2-
question of fact, to be determined in each case by weighing
the gravity of the harm to the plaintiff against the utility
of the conduct of the defendant. The factfinder must
consider the extent and character of the harm to the
plaintiff, the purpose of defendant's conduct, the relative
social value of plaintiff's type of use which is invaded and
defendant's type of use, the suitability of the locality for
either plaintiff's use or the use defendant makes of the
property, and the burden on plaintiff to minimize the harm.
(Pendergrast v. Aiken, 293 NC at 217, 236 SE2d at 797)._
The Pendergrast court emphasized that even should'
alteration of the water flow by the defendant be
"reasonable" in the sense that the social utility arising
from the alteration outweighs the harm to the plaintiff,
defendant may nevertheless be liable for damages to the
plaintiff for a private nuisance "if the resulting
interference with another's use and enjoyment of land is
greater than it is reasonable to require the other to bear
under the circumstances without compensation. The gravity
of the harm may be found to be so significant that it
requires compensation regardless of the utility of the
conduct of the defendant." (Pendergrast v. Aiken, 293 NC at
217-218, 236 SE2d at 797-798).
There are several implications of the Pender rast
decision. First, surface water litigation will be addressed
by the courts on a case -by -case basis. Second, the
reasonableness of the uses being made by both parties will
be a question of fact in any case for the trier of fact to
decide; and as a minimum, those factors cited by the
Pendergrast court will be considered by the courts. Third,
surface water drainage disputes are private nuisance actions
which arise when one landowner either diverts or increases
the flow of water onto another landowner's property. If the
injured landowner does not proceed with the private nuisance
action, there is no other remedy available to the injured
landowner, and he must accept the diverted water or the
increased flow of surface water onto his property.
The reasonable use rule does not apply to disposal of
surface waters in highway condemnation proceedings. In
Board of Transportation v. Terminal Warehouse Corp., 300 NC
700, 268 SE2d 180 (1980), the N.C. Supreme Court said that
the "takings test" governs liability in highway condemnation
proceedings. The Court also said, that where there is
government action, "the principle of reasonable use is
superceded by the constitutional mandate that '[w]hen
private property is taken for public use, just compensation
must be paid'." WarehouseCorp., 300 NC at 706. In the
Warehouse case, the Department of Transportation built a
retaining wall that caused flooding of a truck terminal
parking lot during heavy rains. The Warehouse Court
required the Board of Transportation (now DOT) to pay

compensation for damages to the company's remaining property
caused by flood waters diverted from the DOT project whether
or not the project "unreasonably" interfered with the flow
of surface waters.
Thus, in disputes between private landowners over
surface water damage, the courts will apply the-- reasonable
use rule to determine liability of the active landowner, if
any, for the damage. If the defendant's use of his land is
reasonable, and the resultant harm to the plaintiff is not
significant, defendant will not incur any liability for the
harm. However, if defendant's use is reasonable and harm to
plaintiff is significant, defendant will incur liability for
the -harm. where the --government is involve&,,surface water
damage to a private landowner's property may amount to a
taking and the government might have to compensate the
landowner for his damages, regardless of the reasonableness
of the government's use.
KJC/kp