Neighbor plans to discharge standing water into creek

[sandman2234]

As you see water is a hot topic issue. Most eastern states are "common enemy" states. That means I can alter my land to cause the water to drain on on to your land and there is little you can do about it.

However collecting it into a pipe and discharging it is usually not allowed. Also may be a wetland issue. I am on my phone so can't google for it. There are plenty of web sites you can go to and find out if Fred is draining a wetland. If so many agencies will come down on him.

However like many before me have said.... Talk to your neighbors first.

I have had neighbors with higher elevations than me change the angle of their property, which changed the point where their water entered my property. A simple "let's talk" got the ball rolling, which got a ditch dug to divert the water off my property before it got there. Just to be sure, I added a berm of dirt on my side to keep the water off, in case they ever decided to fill the ditch (it goes right thru their manicured front yard). My berm is insurance that they don't fill the ditch, because if they fill the ditch, water will back up into their house before it goes over the berm. (One of the drawbacks to building a 5500 square foot house in the lowest part of your property, lol).
Some people just don't understand water flow, they just know they want it gone!
David from jax

 

[LouNY]

Agree. Am I missing something here? Initially, more water will move. Then, only water added to the system will move downstream. Same as last year and the year before that. I bet you'll never notice.

Most definitely, much ado about nothing.
And all the people wanting to attack him with the DEC or Army Corp of Engineers,or sue him, what a bunch of obnoxious cowardly pieces of crap.

 

[Sawyer Rob]

Most definitely, much ado about nothing.
And all the people wanting to attack him with the DEC or Army Corp of Engineers,or sue him, what a bunch of obnoxious cowardly pieces of crap.

AMEN!

SR

 

[citytransplant]

Just ducking in here real quick to say that I agree on the importance of communication with neighbors. I'm sharing my situation here so as to be educated on the topic before approaching them. So please keep them replies coming. While this doesn't seem too big of a deal to some, whenever we get heavy rain or fast snowmelt (we get over 10 feet of snow annually) and the creek overflows its banks, the water comes within 50' of my septic drain field and less than 200' from my home. Not to mention the culvert pipes under the footbridge (used by our horses and goats to access a far pasture) that fill to 80% or more of capacity. I'm not willing to gamble that the volume of Fred's redirected water won't be significant enough to cause problems sometime down the road.

For the record, Fred's standing water does just that: it stands along the surface of the ground. It does not traverse 400 feet across Bob's property and end up in the creek. That water, "saturated at or near the surface for extended periods during the growing season" (per US Fish & Wildlife, see below) eventually evaporates or percolates into the ground. While Fred's land is certainly upland from mine, the elevation difference is just a few feet and most of Bob's land (located between Fred's wetland and the creek) is thick brush and windfallen trees and does not permit water to flow readily.

Kcfl your call to your neighbor alerting him to the fact that water was flowing to your side of the pond was cute. He could've countered by pointing out that quite often your fish went on his side, so both sides are harmed equally.

After reading responses to my original post and digging deeper into the interwebs, I've learned a few things. Most important: the wet portion of Fred's land and the portion of Bob's land that presumably will be excavated appear to be wetlands (category: Freshwater Emergent Wetland) as shown on the US Fish & Wildlife National Wetland Inventory as well as NYS protected freshwater wetlands. So is a portion of my land that most certainly will be impacted by the drainage (News to me!!). Fred's hopes may be dashed simply because "artificial means" will be used to direct the diffuse surface water and I think it can be reasonably argued that the additional flow of water into the creek on my property will be of such volume as to "exceed the natural capacity of the creek." After all, the creek overflows it's banks already during heavy rainfall.

"owner may not cause water to discharge into a natural stream in such quantity as to exceed its natural capacity.... However, as long as the natural capacity of the stream is not exceeded, a riparian owner may increase the quantity of water placed into such stream." Stanklus v. County of Montgomery

A landowner may thus grade his parcel regardless of impact on surface water flows provided (1) the improvements are made in good faith to meet the most naturally suitable use of the land and (2) water is not directed onto other properties via artificial means such as "pipes, drains, channels, or ditches." Hoffman v. Appleman

I will check back soon and I will be sure to describe how this issue resolves. Thanks to all who have taken time to chime in.

 

[kcflhrc]

Just ducking in here real quick to say that I agree on the importance of communication with neighbors. I'm sharing my situation here so as to be educated on the topic before approaching them. So please keep them replies coming. While this doesn't seem too big of a deal to some, whenever we get heavy rain or fast snowmelt (we get over 10 feet of snow annually) and the creek overflows its banks, the water comes within 50' of my septic drain field and less than 200' from my home. Not to mention the culvert pipes under the footbridge (used by our horses and goats to access a far pasture) that fill to 80% or more of capacity. I'm not willing to gamble that the volume of Fred's redirected water won't be significant enough to cause problems sometime down the road.

For the record, Fred's standing water does just that: it stands along the surface of the ground. It does not traverse 400 feet across Bob's property and end up in the creek. That water, "saturated at or near the surface for extended periods during the growing season" (per US Fish & Wildlife, see below) eventually evaporates or percolates into the ground. While Fred's land is certainly upland from mine, the elevation difference is just a few feet and most of Bob's land (located between Fred's wetland and the creek) is thick brush and windfallen trees and does not permit water to flow readily.

Kcfl your call to your neighbor alerting him to the fact that water was flowing to your side of the pond was cute. He could've countered by pointing out that quite often your fish went on his side, so both sides are harmed equally.

After reading responses to my original post and digging deeper into the interwebs, I've learned a few things. Most important: the wet portion of Fred's land and the portion of Bob's land that presumably will be excavated appear to be wetlands (category: Freshwater Emergent Wetland) as shown on the US Fish & Wildlife National Wetland Inventory as well as NYS protected freshwater wetlands. So is a portion of my land that most certainly will be impacted by the drainage (News to me!!). Fred's hopes may be dashed simply because "artificial means" will be used to direct the diffuse surface water and I think it can be reasonably argued that the additional flow of water into the creek on my property will be of such volume as to "exceed the natural capacity of the creek." After all, the creek overflows it's banks already during heavy rainfall.

"owner may not cause water to discharge into a natural stream in such quantity as to exceed its natural capacity.... However, as long as the natural capacity of the stream is not exceeded, a riparian owner may increase the quantity of water placed into such stream." Stanklus v. County of Montgomery

A landowner may thus grade his parcel regardless of impact on surface water flows provided (1) the improvements are made in good faith to meet the most naturally suitable use of the land and (2) water is not directed onto other properties via artificial means such as "pipes, drains, channels, or ditches." Hoffman v. Appleman

I will check back soon and I will be sure to describe how this issue resolves. Thanks to all who have taken time to chime in.

I always throw his fish back

 

[oosik]

To those who feel this situation is not a big deal - time will tell. It will be very interesting to see what happens once natural flow is altered and ditching etc occurs.

It would appear that several on here have no knowledge of or concern for riparian rights or protection of natural waters - what a shame.

 

[orezok]

Does the creek show up as a blue line on a USGS map? If so, then it is 渡avigable waters of the US and is a whole 創other Ballgame.

 

[bcp]

From:
Navigable Waters legal definition of Navigable Waters

Attempting to address years of problematic litigation, the U.S. Supreme Court in 1979 created four tests for determining what constitutes navigable waters. Established in Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the tests ask whether the body of water (1) is subject to the ebb and flow of the tide, (2) connects with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable. Using these tests, courts have held that bodies of water much smaller than lakes and rivers also constitute navigable waters. Even shallow streams that are traversable only by canoe have met the test.

 

[Deere Dude]

After getting so much rainwater and water runoff in a drycreek bed near my garage and house I got proactive to keep the wash out down. I have runoff from hills and many neighbors but sure would not want any more run off than what I have already. In your case it seems once it meets the equilibrium point everything will even out and won't be adding any extra water to the flowage.

 

[teejk]

From:
Navigable Waters legal definition of Navigable Waters

Attempting to address years of problematic litigation, the U.S. Supreme Court in 1979 created four tests for determining what constitutes navigable waters. Established in Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the tests ask whether the body of water (1) is subject to the ebb and flow of the tide, (2) connects with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable. Using these tests, courts have held that bodies of water much smaller than lakes and rivers also constitute navigable waters. Even shallow streams that are traversable only by canoe have met the test.

I think the OP described it as "seasonal" (i.e. a "gulley"...we have all kinds of those around here that will hold water once and awhile). His concern about proximity to his septic is valid but I would ask the logical question "with/without" the planned changes. Talk to the neighbor.