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Archive for the ‘Water Drainage Issues’ Category
Covet not thy neighbor’s water
Here we go again. The South Dakota Supreme Court decided another case this summer on surface water drainage. It is the perennial water problem in the state: some have too much water and some have too little. Neighbor versus neighbor. Mother nature does not distribute surface water or drainage equitably. The latest case decided by the Court is mostly right, and gives us an opportunity to look at what I call the grand inequity of surface water law. I am sure the ‘editorial board’ will not find these comments to their liking, but the comments should be made. To the devil with the editorial board.
We are taught that the stranger who dwelleth with you shall be unto you as one born among you. This stranger should be treated as a guest. Even so, this good rule applies to people, not things. Unwanted water is a thing. A neighbor’s surface water on one’s commercial, residential or ag land is an unwelcome guest. Let’s call it an unruly, inconsiderate, delinquent and disrespectful guest. And this can get problematic when it is a city or government doing the diverting.
East River drainage disputes occur more often, and can be more technically difficult on account of the land not having as much undulation. But the West River disputes are more entertaining as they can involve calls to the sheriff, communications suggesting a physical resolution of the pending dispute and other such florid utterances. Some of these problems are dreadful serious and impede land production. Some are so trivial you want to incarcerate the complainant for stupidity: why make a federal case out of water drainage from a swimming pool onto your land? Some would like to.
To make my comments on water drainage tactile, understandable and straight to the mark, I will use a dance analogy. Put your mindset into that of a ballroom dancer and we can begin our review. Fast dance: If you are the water-sending party and your efforts to drain your land cause water to flow over your neighbor’s land in a “sporadic and forceful’ way. That’s okay. If the water sits on the receiving neighbor’s land for only a short period of time, the world is good. That’s a fast dance. That’s okay. If the owner of the sending flow does not substantially alter on a permanent basis the course of flow, the amount of flow, or the time of flow, that’s okay. It appears some landowners are in need of lessons in the samba, rumba, cha-cha and even the East Coast Swing.
Slow dance: If the sending flow from your neighbor’s water is continuous, slow and causes water to stay on your land rather than quickly flow over it or flow through it, this is what the SD Court called “unnatural or unusual.” That is a no no. Slow or standing water of course prejudices the receiving landowner’s use of the land. (Funny how the state can prejudice one’s use of the land in the case of non-meandered lakes but private neighbors can’t do it) There can be no slow dancing with your neighbor if you are trying to get rid of your surface water. This is the rule even if the slow moving water is going over a natural watercourse. So don’t ask your neighbor to do a slow dance with you. Now, to make the dance card a bit more complicated, the latest case also suggested that the receiving landowner does not have a special duty to remove naturally occurring obstructions on the watercourse just to make the water move faster.
Are there remedies for these neighbor versus neighbor problems? Yes there are. I have developed some. That’s for another conversation.
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.
Brownfields: A Calculated Risk Missed by Tribes and South Dakota
The EPA defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mandated that the purchasers of property are liable for any contamination on this property regardless of when they acquired a site. However, CERCLA also created a defense known as the “innocent landowner defense” that can only be used if “appropriate due diligence” was conducted prior to the acquisition of the property. Appropriate due diligence has been exercised if an environmental site assessment (ESA), a thorough investigation of a site’s current and previous owners, has been prepared.
ESA’s have an average cost of about $4,000 for a small business acquisition and can vary depending on variety of factors specific to the job. The typical businesses that leave behind brownfields include gas stations, dry cleaners, railroads, oil refineries, liquid / chemical storage facilities, and steel / heavy manufacturing plants. Typical hazardous materials they leave behind include hydrocarbons, solvents, pesticides, heavy metals such as lead, and asbestos.
What is so dangerous about leaving these brownfields alone? Many of these brownfields are abandoned commercial properties and tend to be an eyesore in the community. Not only can this lead to decreased property values in surrounding neighborhoods, but the property can also pose serious health risks for new tenants and their neighbors.
Once a brownfield has been identified, the EPA provides two options for cleanup, revolving loan fund grants and cleanup grants. The purpose of revolving loan fund grants is to enable states, political subdivisions, and Native American tribes to make low interest loans to carryout cleanup activities at brownfields properties. Cleanup grants provide funding for a grant recipient to carry out cleanup activities at brownfields sites.
Since the cost of cleanup is considerable, the grants may provide several hundred thousand dollars towards the cost of cleanup. This money comes with strings attached, of course. Among other things, the costs are shared with the property owner, by at least 20 percent, and the brownfield site must be cleaned up within a three-year period.
Entities eligible for the EPA’s brownfield grants and loans include state, local and tribal governments; general purpose units of local government, land clearance authorities or other quasi-governmental entities; regional council or redevelopment agencies; states or legislatures; or nonprofit organizations. If you are not an eligible entity, you may still be able to receive assistance through your state or city.
In South Dakota, the agency that provides statewide brownfield assistance is the Department of Environment & Natural Resources (DENR). DENR receives funding from the EPA for assessments and cleanup and have discretion in how to allocate those funds. For example, a national hotel chain looking to redevelop a brownfield site in South Dakota would not be eligible to apply for assistance through the EPA directly. However, the hotel chain could contact DENR for assistance and DENR could use their funds to perform an ESA or help with the cleanup.
In 2015, Sioux Falls received an assessment grant for $400,000 from the EPA. In addition to performing site assessments, they plan to use the money to update the city’s brownfields site inventory, prioritize sites, plan for cleanups at priority sites, and perform community outreach activities. They, like DENR, also have discretion in performing assessments and have made assessments available to entities who would not be eligible to apply for grants from the EPA.
With these options available to assist with brownfield redevelopment, why do so many brownfields remain untouched in South Dakota? In the last 5 years the EPA only awarded four grants in South Dakota. They gave an assessment grant to Sioux Falls and cleanup grants to Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Lower Brule Sioux Tribe. This suggests that other entities are not aware of the grants available to them, they are dissuaded from applying, or they do not have the structure to run a brownfields program.
Since South Dakota is not small Rhode Island, which is about the size of Brown County, businesses and other eligible entities find it is more economical to buy available land than it is to redevelop a brownfield site. This misses the mark. A brownfield site is many times in an attractive location. A brownfield site is often close to business activity and transportation or the prior owner would not have developed it.
Although the grants and other forms of assistance are “competitive,” grants are awarded based on guidelines. The deadlines for applying for assessment and cleanup grants from the EPA is December 20, 2016, so it’s not too late.
View the original article at FarmForum.net
You Get The Water With The Land – Sort Of
Gaze over your shoreline property knowing that you can access the waters directly in front of you. Unfortunately, under New York law, depending on the shape of the shoreline and how lot boundaries are drawn, this may not be the case. New York courts use different principles and their own discretion in determining the reach of landowners’ riparian rights.
In Muraca v. Meyerowitz, 13 Misc. 3d 348, 350 (Sup. Ct. 2006), three adjacent riparian landowners disputed each others riparian water rights boundaries primarily because one of the party’s private boat occupied a large portion of surface waters near the shore.
Under New York law, riparian rights only arise from the ownership of land abutting or surrounding a body of water, such as a lake or a pond as long as there is contact between water and the land. In Muraca, the Court recognized that riparian landowner rights extend out to the navigable portion of the water body, but go no further. A riparian owner has the right to access water and the related right to protect the water from illegal drawing of the water as well as the right to build out to the water by way of a dock, slip or pier.
When a controversy concerning riparian rights arises, the resolution sought is access to water from shoreline properties. How to determine the rights of access between riparian landowners is complex.
In New York there are no mechanical rules used to draw the lateral boundaries between riparian landowners. Rather, courts strive to give an equitable allocation of the waterfront area, with the right of access depending on the frontage available to the landowner based on the lateral boundaries of their properties.
The Muraca court explains that two principal formulas have been derived for establishing lateral boundaries in the context of landowner’s riparian rights.
First, the “perpendicular rule” extends the lateral onshore boundaries out to the navigable body of water by lines that are perpendicular to the shoreline. This principle is equitable when there are only minor shoreline irregularities (i.e. a straight onshore boundary).
Second, the “proportional method” attempts to draw a path between onshore boundaries that are proportionate to the amount of frontage the landowners enjoys. When choosing a method or modifying a rule, a court will consider a landowner’s right to direct access to navigable waters along with their neighbor’s right of direct access.
So it is not just one’s right of access to navigable waters that matter when resolving such controversies, but rather what in fact matters are one’s riparian rights in relation to one’s neighbors.
There are limits attached to these general principals. A riparian owner must remember that he is always subject to the restrictions to which he agreed when he purchased the property. Outside of these contractual or deed restrictions, riparian landowners cannot extend their “upland boundaries”, or the boundary above the mean high tide line, to form the lateral boundaries of the land under the water. This limit however is not all encompassing. New York courts have recognized that a riparian owner’s right to the natural flow of water along its land is properly classified as real property, equally with the land. A party could nevertheless acquire an interest in the water flow separate and distinct from the land under the water.
In Muraca the Court found the proportionate rule inapplicable and modified the perpendicular rule because strictly applying the perpendicular rule would have unfairly reduced the defendants’ right to access their outshore surface waters.
Ironically, even though the boat owner was given more riparian rights to access the outshore waters in front of his property than the complaining plaintiff requested, the Court found the party’s ability to dock his 28 foot boat to be of little consequence. The riparian rights boundaries only have to be sufficient enough to accommodate reasonably sized watercraft.
The implications of a court determining the riparian boundary lines based on general principles of equity is memorable.
First, it suggests that a court can alter your deed if you eventually find yourself in litigation over the riparian rights of yourself and other riparian landowners.
Second, and perhaps more importantly, under New York law, when riparian real property increased by “accretion”, or the gradual addition of property along a shoreline, then new formed land belongs to the upland landowner. However, if the riparian boundary lines are altered as the court did in Muraca, then the new lands normally entitled to riparian landowner will go to their neighbor.
David Ganje practices law in the area of natural resources, environmental and commercial law.
Brownfield Due Diligence – Don’t Get Married, Get Engaged
Let’s not pretend. We have messed up parts of mother earth. Now let’s use the tools at hand to undo the mess and be good stewards again. Brownfield recycling, that is the brownfields program is one means to that end. If you are looking to start a new redevelopment project don’t get married, get engaged. Do your due diligence and explore the possibilities from exposing a brownfield.
The EPA defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant”. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mandated that the purchasers of property are liable for any contamination on this property regardless of when they acquired a site. However, CERCLA also created a defense known as the “innocent landowner defense” that can only be used if “appropriate due diligence” was conducted prior to the acquisition of the property. Appropriate due diligence has been exercised if an environmental site assessment (ESA), a thorough investigation of a sites current and previous owners, has been prepared.
ESA’s have an average cost of about $4,000 for a small business acquisition and can vary depending on variety of factors specific to the job. The typical businesses that leave behind brownfields include gas stations, dry cleaners, railroads, oil refineries, liquid / chemical storage facilities, and steel / heavy manufacturing plants. Typical hazardous materials they leave behind include hydrocarbons, solvents, pesticides, heavy metals such as lead, and asbestos. Much of the information about previous and past owners is public.
What is so dangerous about leaving these brownfields alone? Many of these brownfields are abandon commercial properties and tend to be an eyesore in the community. Not only can this lead to decreased property values in surrounding neighborhoods but the property can also pose serious health risks for new tenant and their neighbors. For example, the Love Canal disaster in Niagara Falls, in the late 70’s. Hooker Chemical Co. dumped over 20,000 tons of chemical waste in the unfinished and abandoned Love Canal. The canal was later paved over and sold to the city. The city then developed residential neighborhoods and schools on top of the contaminated land. About 25 years later, after an unusual amount of rain, a large amount water absorbed by the land upwelled the “entombed” chemical waste. Residents complained of chemical burns, organ failures, mental disabilities, and congenital birth defects. Eventually local families were relocated and the land was cleaned up. However, in recent years, residents on the rebuilt lands have complained of health issues similar to the ones originally reported 35 years earlier and have filed lawsuits against Hooker Chemical Co.’s parent company.
Once you suspect that the land you are planning to purchase could be a brownfield in need of cleanup what can you do? If you have not purchased the land yet you could include provisions in the purchase agreement that can indemnify you from liability for claims associated with existing contamination.
If you have done your due diligence and you know what you are getting into then you should already know that the Environmental Protection Agency (EPA) has set up the Brownfield Cleanup Program (BCP) “to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities.” The BCP provides incentives through, grants, loans, training, and tax benefits to aid with the cleanup. Since the cost of cleanup is considerable the BCP may provide several hundred thousand dollars towards the cost of cleanup. This money comes with strings attached of course. Among other things, the costs are shared with the property owner, up to 20%, and the brownfield site must be cleaned up within a three-year period. In addition to tax incentives and financial assistance provided through the various governmental programs the land developer should be comforted by the fact that his contributions have also helped the environment. Furthermore, awards are given out by the NYC Brownfield Partnership providing public recognition for the most successful brownfield redevelopment projects.
Additionally, taking on a new brownfield project in NYC grants access to special municipal assistance programs through the NYC Office of Environmental Remediation (OER). The OER was established in 2009 to “design, build, and operate a set of world class municipal programs to advance cleanup and redevelopment of brownfield sites.” Since then they have developed over thirty new programs that take some of the most blighted properties in some of the most disadvantaged neighborhoods, cleans them up, makes them safer, and enables new development that brings new jobs and affordable housing.
The OER also distributes a variety of letters to aid sellers, lenders, and prospective buyers of brownfield properties. An “environmental review and assessment letter” is issued after the OER conducts an ESA on the property in question. It is used to provide assurances against liability. A “standstill letter” contains a preapproved remedy plan developed by a seller and the OER. The letter can be used to enroll the property in a brownfield cleanup program so that a prospective purchaser might receive financial assistance. This letter is intended to provide comfort to a prospective purchaser and its lender since the purchaser will be able to better estimate the cleanup costs.
If you have already started a construction on a new project and just learned of contamination, you may still be able to request a “look back letter” from the OER which would grant liability protection. Although a developer can gain liability protection after a project has started, they will not be eligible for brownfield funding incentives.
Many prime redevelopment sites are located on brownfields, don’t get married. Get engaged first and do your due diligence.
David Ganje practices law in the area of natural resources, environmental and commercial law.
