Pumping Water from a unnatural waterway into a natural waterway and nuisance.
Small town - 500 people. I live on a corner. Neighbor across the street pumps water constantly out of his basement. He has a broken tile on his property that he won't fix. Last summer he began pumping the water out of his basement into the middle of the intersection in from of my house and my neighbor's. He has extension hoses attached to each other. He has at least 5 sump pumps running. It is not unusual for him to have 2 to 7 foot of water in his basement. I have a mud, fly, mosquito fest going on in the front of my house in the summer. He is still pumping water, so I now have an ice pond. I only have 1 entrance to my home - the path of the pumped water. I have never had water in my basement until this summer. He was pumping water and the water was seeping in my basement . This caused damage to my wood floor and drywall which my insurance company will not fix because I do not have flood insurance. I do not live in a floodplain, I live on a hillside and do not require flood insurance. School kids walk in front of my house and the garbageman must cross the ice. My husband fell today. He was not hurt. The tires on our vehicle have actually been frozen to the ground. Which means we can only use 1 vehicle for 2 jobs. My neighbor who is also affected by the nuisance, is retired and on a fixed income. He never got water in his basement until the pumping began. He too has damage that his insurance company won't fix because he too does not have flood insurance. He has damage in his basement and the water runs into his garage causing the overhead doors to freeze shut. We have complained to our mayor who said there is nothing we can do about it. He said my house has a natural waterway in front of it. I explained to him that if God put the water into the natural waterway I would have to deal with it, but it's my neighbor and he can't pump water from an unnatural waterway into a natural waterway. May I add that my neighbor that pumps water has a HUGE moat around his house. My neighbor and I have also complained to our town board. I could not sell my house even if I wanted to. Who would pay me what my house is worth? I believe it is now time to take legal action. Please advise soon. More rain and snow is on the way.
Attorney answers (3)
Russell Scott Frye
Reputation Level 4
Answered about 3 years ago.
Environmental / Natural Resources Lawyer in Washington, DC.
It sounds like you may have an action from trespass (or maybe an action for private nuisance, if the moat he is maintaining really is breeding excessive mosquitos). This would be pursued in state trial court. Another approach, though, would be to file a citizen suit under section 505 of the federal Clean Water Act, 33 U.S.C. section 1365 for the unpermitted discharge of pollutants to "waters of the United States" (since the mayor says the discharge is going into a natural waterway. The Act defines "pollutant," interestingly, to include "cellar dirt." See section 502(6), 33 U.S.C. 1362(6). Gotta think your neighbor is pumping out some "cellar dirt" with those sump pumps. The state law claims could be included in the federal suit under the doctrine of pendant jurisdiction. A significant advantage of the federal citizen suit is that, if successful, you are entitled to reasonable attorney's fees.
I'm not your lawyer, and I can't give you legal advice in this forum and with this limited information. But if you can find a local lawyer willing to take the case, I might be willing to point him in the right direction. But unless that moat is protecting a castle (or your neighbor has a good homeowner's insurance policy, which might be more likely), the cost of pursuing this case might exceed the neighbor's ability to pay. But it might not be necessary to litigate the case to its conclusion in order to get a favorable settlement. I don't know what the practice is in your district, but this matter sounds like one that is a great candidate for referral to a court-appointed mediator rather than continuing to a trial. Good luck!
1 person marked this answer as good
Joseph Adam Hazelbaker
Reputation Level 6
Answered about 3 years ago.
Environmental / Natural Resources Lawyer in Athens, OH.
I agree with Mr. Frye to a great extent.
In addition, however, I would suggest you call the local office of the Ohio Environmental Protection Agency, as they regulate discharge into state waters. I would also call the Ohio Department of Health as they deal with sewage treatement/disposal (which could be part of the discharge) and infectious insects such as mosquitos.
As Mr. Frye pointed out, the cost of your bringing a claim for trespass, nuisance, or under the Clean Water Act is likely a huge obstacle. Such suits are costly. However, if you can get either or both the OEPA or ODH involved, they might address the issue(s) without any cost to you.
I am not acting as your attorney and cannot represent you, and I am not indicating whether you do or do not have a viable claim as I do not know the full details of your situation. You should also understand that you may have a statute of limitations issue which would bar any claim you may have , if you do not act within a specified period of time to protect your interests.
1 person marked this answer as good
Nathan Bradford Hinch
Reputation Level 7
Answered about 2 years ago.
Environmental / Natural Resources Lawyer in Bloomington, IL.
I see that your question was posted a year ago, so hopefully the issue has been resolved by now. However, while I agree with what the other two attorneys have said, I noticed that you have not received a response from an Illinois attorney. Mr. Frye's suggested causes of action would still apply here in Illinois. Mr. Hazelbaker's suggestion to contact someone at the regulatory agencies is also a good one. Obviously, since you are in Illinois, the Illinois EPA and Department of Public Health would be the appropriate entities. If you have any further questions about this or how to find the right person at the agencies to contact, just let me know.
And to echo the other attorneys, I am not your attorney unless and until you retain me, and this posting does not create an attorney-client relationship between us.
Good luck!
1 person marked this answer as good
|