Water, water, every where, Nor any drop to drink

Pamela M. Tobin

Samuel Coleridge’s famous passage could easily describe summer time in Montgomery County. With the onslaught of summer storms, we regularly face creek flooding, wet basements, spongy lawns. Summer flooding is a good time to take stock on what you can do to better manage the storm water run-off on your property.

Developers, of course, must obtain municipal approval of a storm water management plan for their properties before they can put shovel to ground. Owners of buildings dating before storm water management ordinances do not have an affirmative obligation to retrofit their properties to comply with these ordinances. Depending on the township, however, if you plan to install a new addition, you will usually have to obtain township approval of a storm water management plan at least with respect to the new addition.

What if storm water discharges from a neighboring property onto your property, causing erosion and/or flooding damage to your property? Do you have any recourse? The answer is: “It depends.” Under the common law, all property owners have a right to allow the storm water which naturally occurs on their property to naturally flow onto adjoining property. The common law, however, also recognizes certain critical exceptions to this general proposition. If an owner changed the grade of his property and thereby altered the natural flow of storm water, the owner is responsible for managing his storm water to prevent damage to an adjoining property. Owners are also prohibited from allowing storm water to pool on their property and then point discharging the collected water onto a neighboring property.

Picture, for instance, two adjacent properties separated by a berm. For years, the berm prevents the storm water from the higher property from cascading onto the lower property. Later, the berm begins to leak, causing erosion and flooding damage to the adjoining property. The owner of the damaged property has a potential claim against the adjoining owner for storm water trespass. Owners should therefore be vigilant to detect storm water problems to hopefully effectuate an early remedy.

Owners can implement strategies from Pennsylvania’s best practices for storm water management such as installing vegetated swales and reducing or disconnecting impervious surfaces. My neighbor recently planted a “rain garden” which re-directs run-off into the ground, rather than discharging into the street and ultimately the township’s overburdened storm water system. “Water, water, every where” is less problematic if managed properly and illegal discharges are caught at the outset.