Law Group
(Brooke Ray, Dave Karl, John Merriken, Jr., Amos Baehr, Joshua Wilkins)
10/22/04
PRELIMINARY LITERATURE REVIEW
A 1-2 sentence intro to the purpose of your lit review is always useful.
1. Source: Vermont Agency of Natural Resources, Department of Environmental
Conservation, Water Quality Division (1999) Options for State Flood Control Policies
and a Flood Control Program. Waterbury, Vermont.
Description: This article was produced after several consecutive years of serious
flood damage were born by the state to assess existing policies and programs and
identify areas for improvement of these policies. Preventative policies and
programs are focused on in this paper in light of past recurring flood damage.
2. Source: Vermont Department of Environmental Conservation (2000) One Example of
a Municipality Benefiting from a Policy on Standards for Roads and Bridges.
http://www.anr.state.vt.us/dec/waterq/rivers/htm/rv_floodhazard.htm
Description: The town of Hyde Park, Vermont was able to access funding from
FEMA to replace a bridge that failed with every major storm event. Whereas they
had only previously been able to access FEMA funding to repair the inadequate
bridge design, identification of an appropriate replacement by the VT ANR and
VTRANS, and a because the town had established a Town Road and Bridge
Code, they became eligible for the higher level of funding. The article suggests
that the development of municipal Transportation Infrastructure Codes could
increase eligibility for more of such funding.
3. Source: Elmer, P., and Miller, S. (1998) Community Planning for Flood Hazards.
Vermont Department of Housing and Community Affairs, Montpelier, Vermont.
Description:
 National Flood Insurance Program- Lewis Creek not a part of it as of 1998.
 FEMA opportunities and shortcomings (they mostly focus on damage along
main stem.
 (1995) Vermont Model Flood Hazard Area Regulations. Vermont Department
of Conservation.
 FIRMs Flood Insurance Rate Maps, used to delineate flood-prone and
environmentally sensitive areas.
 MOM, Multi-Objective Management to Reduce Flood Losses six steps from
the Association of Floodplain Managers- guidelines for citizens.
 Floodplain Overlays to add local knowledge of flood prone sites to the FEMA
maps for creating local ordinances/controls or incentives.
 Land Acquisition
Regulations
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Look for overlay zoning districts for controls and incentives in sensitive
areas and known and established floodplains.
Requiring conditional use permits that would have to be reviewed by the
Zoning Board of Adjustment. Example North Hero.
Strategies for restricting development in flood prone areas and examples.
Regulations meant to protect private property from flood damages. Extend to
zoning and development only in flood zones. Preventative of flood damage,
not so much flood-planning.
4. Source: VPIRG Website, retrieved 10/27/04
http://www.vpirg.org/campaigns/environmentalHealth/stormwater_factsheet.html
Description:
 Point Source Pollution permits have expired and gone un-enforced allowing
pollution to continue. (for Stormwater runoff)
5. Road Design and Maintenance Handbook: Techniques for Reducing Flood Damage to
Local Roads. Vermont Local Roads Program, St. Michaels College, Colchester, Vermont
6. Administration of Floodplain Management By-Laws: A Handbook for Local Officials.
Vermont Department of Environmental Conservation, Waterbury, Vermont.
7. FEMA Community Rating System: A Comprehensive Approach to Floodplain
Management. The City of Tallahassee Stormwater Utility Floodplain Management.
8. The Flood Control Districts Webpage. Gary G. Peterson, Principle Planner. Pima
County Flood Control District. http://www.dot.co.pima.az.us/flood/
9. 10 VSA Section 1021 Gravel Removal and Chapter 41
10. US Code Title 33, Clean Water Act
Brief summaries of the relevant material from all of these would be helpful, even if it is
just a sentence or two.
11. Source: The Vermont Institute for Government. (2000) The Law of Water: An
Introduction to Vermont Water Law. Berlin, Vermont http://crs.uvm.edu/citizens/
Description: The article summarizes the classes for different bodies of water and the
broad protections these classes enjoy.
 Enforcement: Army Corps of Engineers
 Stream Boundaries: Can’t change them, how deeds to property are worded
matters. Water under the land you own is yours.
 Accretion, Avulsion, and Erosion: Slow accretion doesn’t require changes in
deed or title, the land just passes from one owner to another. But flood
changes may not changes boundaries in this way, even when the course of the
stream is changed.
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Flowage: General boundaries on citizens and government for altering path
and flow of rivers and streams.
Lake Boundaries:
Law of the Sea
Springs: A town can condemn?? rights to water on public property in the
public interest within its boundaries.
Permitting: Says to check before any alterations to land or water are made:
earth moving, relining ditches, filling them in, building a bridge over a stream,
etc.
Public Easements:
12. Source: State of Vermont Environmental Board. (2000) ACT 250: A Guide to
Vermont’s Land Use Law. Montpelier, Vermont
Description: Development Regulations and Review for Certain Types of
Development in Vermont. LCW is Addison in District 9, Essex Junction Office,
phone # 879-5614
 Criterion 1: Water and Air Pollution
1a. Headwaters
1b. Waste Disposal
1c. Water Conservation
1d. Floodways: New development can’t restrict the flow of water or
floodwater in floodplain or on its fringes. *Does Act 250 use the
FEMA FIRM maps to identify floodplains? Can a town’s mapping be
added to the sensitive areas? Also, can’t significantly increase the
peak water discharge into streams and rivers within or downstream of
development.
1e. Streams: Must maintain “natural state” of the stream and not
harm landowners or the public.
1f. Shorelines: Must prove necessary to be there, and must maintain
integrity of shore. Can’t limit continued public access to that water.
1G. Wetlands
 Criterion 2: Water Supply must be adequately available for the
development.
 Criterion 3: Impact on Existing Water Supply
13. Source: Vermont Statutes Online. (2004) TITLE 10: Conservation and Development,
PART 2: Soil and Water Conservation; Flood Control, CHAPTER 37: WATER
RESOURCES MANAGEMENT. http://www.leg.state.vt.us/statutes/statutes2.htm
Description: Chapter 37 of Title 10.
 Water Resources Board
 DEC
 Investigators employed by the DEC have certain rights over sections of Title
10 to enforce them.
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Entrance upon lands for inspection allowed
Temporary Emergency Powers
Aquatic Nuisance Control- includes sediment deposition, the state shall
maintain a program for this purpose
§ 922: Grant-in-Aid to Municipalities and Agencies of the State- priorities
and criteria for distribution of available monies for Aquatic Nuisance
treatment and Prevention.
Joint Municipal Participation
Office of the Secretary of State: Has most up to date laws available.
Act 137 Section2
Vermont Water Resources Board www.state.vt.us/wtrboard/related_links.htm - 15k
Check out From Rooftop to River: Tulsa’s Approach to Floodplain and Storm water
Management. The City of Tulsa Oklahoma.
Lit review; amos baehr
Source: The Legal Aspects of Owning and Managing Woodlands
The bulk of the book addresses the rights of property owners with respect to timber sales
and the responsibility of government to regulate those sales with respect to the rights of
adjacent landowners and the public in general. This part of the book is not applicable to
water because in general a landowner does not own the water passing over his property.
Basic property rights include the use of water as a fund service but not as a stock flow
commodity. However, many landowners and conservation groups wish to maintain
woodlands as woodlands for economic, cultural and personal reasons and this book
outlines a number of strategies to do so. It discusses in principle, property rights and the
sale and gifting of portions of those rights (ie. Development rights) and frequently
suggests professional consultation with an accountant and real estate attorney. The
transfer of property to heirs or purchasers with the express intent of preserving
woodlands is parallel to the transfer of riparian rights and this portion of the book is
highly applicable to The LCA situation.
My understanding is that Marty wants you to imitate the format of the book. I don’t think
that she was claiming the content is directly relevant.
Source: Corpus Juris Secundum
This is an encyclopedic treatment of the law that provides an orientation to the general
position of the law with case references. It does gives some sense of the breadth of
variation among the states but does not attempt a detailed description of conditions within
the states. Entries include a concise abstract, a footnoted expansion of several paragraphs,
case identifications corresponding to the footnotes. I found it very helpful in identifying
those issues which are customarily dealt with in the courts what legal precedents
determine the general attitude of the courts.
Water law varies so much between regions in the US that it might be more useful to find
books that focus only on Vermont or New England (I think Vermont law is similar to
New England’s, but I know eastern water law is very different than western, and there is
considerable state to state variation as well).
When reading in the section on waters ( 327 entries covering nearly 800 pages) I found
frequent reference to “common law” and so read concerning the nature of the common
law. There was also repeated reference to courts of equity much of which was obscure to
me but this statement stands out, “Equity will act to prevent the imposition on one
person of a burden which ought to be borne in common.” Interesting that equity
only refers to burdens. This implies the state is entitled to provide benefits to any
individual, i.e. transfer the assets of the commonwealth from the many to the few.
Relevant sections included under Waters
I. Nature, ownership, and classification ( 2 entries)
II. Natural watercourses (187 entries)
A. In general (6 entries)
B. Riparian rights in general (9 entries)
10. Power to control or regulate water courses
12. Right to natural flow
C. Obstruction and Detention; flooding and flowage (73 entries)
28. Embankments, levees, and other works to protect property
29. Embankments, levees, and other works to protect property – floods
30. Bridges, railroad embankments, and other works
31. Bridges, railroad embankments, and other works – care and skill in
construction
32.Bridges, railroad embankments, and other works – extraordinary rains
and floods
D. Deepening Natural Channels (2 entries)
G. Beds and banks of stream (20 entries)
170. Ownership of bed of stream
171. Ownership of bed of stream – Effect of meander line
174. Ownership of banks of stream
176. Reclamation and improvement
178. Accretion and alluvium – division of land formed by accretion
184. Erosion
188. Conveyances and contracts – Public grants
V. Surface waters (43 entries)
B. Natural flow or drainage and obstruction thereof (9 entries)
1.General
259. Easement for surface water to flow naturally
2.Surface water as common enemy (3 entries)
3. Construction and maintenance of railroads (3 entries)
D. Creation and transfer of right of easement or right of drainage (4 entries)
VI. Artificial Watercourses, conduits, ponds, and other works (31 entries)
A. Artificial canals, ditches, and channels
1. Nature and rights
299. Persons have rights in artificial watercourses
3. Injuries by breakage, leakage, overflow, or seepage
306. Injuries from changing course of stream
Comments:
In general the law reflects several hundred years of ignorance about intervention
in the natural course of a stream. The fact that there is a legal doctrine applied in some
jurisdictions under the title of “surface waters as common enemy” indicative of the
general tone of the law in support of riparian owner rights to direct and accelerate the
drainage of surface waters from their property. The law does acknowledge that this can
injure other riparian owners and the public and requires reasonableness in use and
liability for damages. But historically the kinds of channel manipulation and bank
stabilization that we now know as problematic are considered reasonable and are
sometimes expressly permitted by law. I wonder how much prior manipulations were
responsible for making surface water the enemy. If much channelization occurred 150
years ago, by the time these laws were passed, it may have become ‘an enemy’. Of
particular interest was a principal prohibiting anyone, including the state, from
introducing obstructions that might slow the rapid flow of water from a person’s
property. I saw in this a potential legal challenge to some of the active and passive
strategies proposed by Mike Kline. I repeat that this source is not specific to Vermont but
even if Vermont has passed more progressive law it is certain that attitudes of some stake
holders will be closer to the historical perspective voiced in the Corpus Juris Secundum. I
will comment more hopefully on the general principals of common law that could form a
basis is law for better inform action in the watershed and in the Legislature.
Many of the rights of riparian owners are derived from the English common law which is
defined by Blackstone as that law based not on legislative action but on immemorial
usage and the general consent of the people. The common law does not consist of
definite rules which are absolute, fixed, and immutable like the statute law, but it is a
flexible body of principals which are designed to meet, and are susceptible to adaptation
to …increasing knowledge as the progress of society may require Is this a quote? If so,
where are the quotation marks? If not, why the ellipse?. The Corpus Juris Secundum is
not a comprehensive source of common law principles but I shall list those I found most
relevant. While statutory law over the last two centuries has favored straightening and
draining stream courses, the common law might guide debate in a direction consistent
with new knowledge and acceptable to a wide range of stake holders.
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The good or safety of the people is the supreme law
The law delights to do justice and not by halves
The law does not award consolation prizes
A man’s home is his castle
The end does not justify the means
Actions speak louder than words
A person will not be allowed to do indirectly what can not be done directly
Public policy demands an end to litigation
It is the policy of the law to favor the diligent and aid the vigilant
Ignorance of the law excuses no one
No legal wrong is done to one who consents
It is evidence of the nature of the common law that several of these sayings are common
grade school proverbs not generally thought of as having the weight of law. There are
dozens of these maxims that have been established over centuries of practice. I have only
scratched the surface but I conclude with this common law principle as a pertinent
reminder,” fundamental principle cannot be set aside to meet the demands of convenience
or to prevent apparent hardship in a particular case”. Is this a quote? If so, include the
page number.
You have some very good material here, though I get the feeling that not everyone
participated in this. Also, it is essential to have references in the proper style. That means
publisher, date, etc. In my lower level classes, I explicitly tell students they fail the
assignment without proper references. In upper level classes, I don’t expect anyone to
need a reminder.