By: Ryan Kennedy

In 2018, Washington DC saw its wettest summer on record. [1] In October of this year, high tides and a massive storm surge brought some of the highest flood levels ever seen along waterfronts in the DC region. [2] Infamously, on July 8, 2019, more than 3.5 inches of rain fell in Northern Virginia in less than an hour. [3] With each extreme weather event comes increased risk and new considerations for homeowners, communities, and businesses.

Generally, the law treats rainfall and surface water as a “common enemy” that all are free to deal with as they see fit, so long as they are not reckless or careless in doing so. In other words, most reasonable efforts to deal with runoff may not lead to liability to a neighbor. However, what amounts to reckless or careless handling of stormwater runoff is not clear in every case, nor is it a purely legal question. Any lawyer evaluating a water case needs to rely on the judgment of a competent civil engineer.

In most jurisdictions, the size and location of a project can trigger requirements to install stormwater control devices, meet certain grading requirements, or otherwise comply with various environmental regulations. For example, Virginia has enacted the Chesapeake Bay Preservation Act, and many Virginia counties have additional rules relating to Resource Protection Areas. Maryland law contains the Critical Area Act. Almost all jurisdictions in the Washington-Baltimore metropolitan area enforce minimum design guidelines to deal with stormwater runoff.

Whether such laws and design guidelines go far enough to protect our environment is a subject for another day. But in evaluating what to do about water on one’s property, these rules are a good starting point. An engineer may be able to help paint a picture of reckless or careless behavior if, for example, someone fails to install required silt fencing, intentionally funnels water towards a neighboring home, or designs insufficient stormwater controls. These cases can also be complex and highly technical. This writer was involved in a dispute where the use of a single incorrect number in a site plan resulted in the developer’s entire stormwater runoff proposal being deemed improper.

When combating recurring flooding from other sources such as tidal waters or naturally occurring streams, some of the same considerations are present. These events motivate owners to add retaining walls, rip-rap, or living shorelines to protect their properties from erosion and other damages. However, construction should not begin without consulting some of the same regulations. Special environmental permits and approvals from local zoning authorities may be required for owners with property adjacent to streams or tidal waters, and many homeowners run into the need for an attorney when dealing with these issues.

In closing, when water threatens, do not begin construction on a whim. Though the law refers to water as a “common enemy,” it is also a highly destructive force. This firm’s recent litigation experience confirms that concentrated, rushing water can quickly cause damage in ways most people would never imagine.

To learn more about Dunlap Bennett & Ludwig and how we can help, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


[1] https://alexandrialivingmagazine.com/news/2018-washington-dc-wettest-year-ever/

[2] https://patch.com/maryland/annapolis/annapolis-flood-was-4th-worst-citys-recorded-history-data

[3] https://www.wusa9.com/article/news/our-street-was-decimated-flood-cleanup-continues-in-arlington-community/65-74f5c02b-3442-4997-abe9-9b1cf4681764


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