May 21, 2003
Dear Assistant City Manager:
You have what appears to be essentially the following question: What are the possible
rights of property owners that abut a creek downstream from a rock quarry within the city to the
use of the water that is intercepted for use by the quarry?
Generally, the law in Tennessee entitles riparian owners abutting streams to a “reasonable
use” of the water from the stream. Reasonable use applies to both quantity and quality. There
are federal and state laws the regulate water quality in Tennessee that appear to have rendered the
quality component of the reasonable use rule obsolete. The question of what is reasonable use
with respect to quantity is so highly fact-dependent, I can only give general guidance on this
question. In that connection, I will also point to some federal and state laws governing water
quality that might have a bearing on your question. I am handicapped even in that endeavor by
the fact that I have only sketchy details of the actual complaints and only a cursory knowledge of
the quarry’s and the creek’s geography and operations.
Your question arises from complaints on the part of such property owners that the rock
quarry retains and consumes such quantities of water from the stream that they are significantly
deprived of the use of the stream as a water source for various purposes, including agricultural
use. In addition, there are some allegations that the water emitted from the quarry into the stream
is polluted. . For that reason, I do not know exactly what law or laws and legal principles might
apply to those complaints.
TennesseeBNatural Flow Rule
Water law in Tennessee is governed by the natural flow rule. Under that rule, water has a
natural easement along its natural paths. With respect to drainage, the upper and lower
landowners must accept water that naturally flows, or that would have naturally flowed on or
through that property. [Dixon v. Nashville, 301 S.W.2d 178 (1976); Miller v. City of Brentwood,
548 S.W.2d 878 (1977); Butts v. City of South Fulton, 565 S.W.2d 879 (Tenn. App. 1978);
Yates v. Metropolitan Government Nashville & Davidson County, 541 S.W.2d 437 (1969); and
the cases cited below.]
TennesseeBReasonable Use Rule
As might be expected, the natural flow rule is mostly an issue of the interference with the
natural flow that causes flooding. But there is another side of the natural flow rule. In Cox v.
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Howell, 108 Tenn. 130, 65 S.W. 868 (1901), it is said that:
The general proposition of law, that the owner of land over which a
stream of water flows, has a right to have it flow over the land in
its natural channel, undiminished in quantity and unimpaired in
quality, except so far as is inseparable from a reasonable use of the
water for the stream for the ordinary purposes of life by those
above him on the stream, is well established by an almost unbroken
current of authority. [At 133-34]
More esoterically, the U.S. Sixth Circuit Court of Appeals in Tallassee Power Co. v.
Clark, 77 F.2d 601 (1935), said of the reasonable use rule:
....the right of each riparian owner qualifies that of the other, and
the question always is not merely whether the lower proprietor
suffers damage, but whether under all of the circumstances of the
case the use of the water by one is reasonable and consistent with
its enjoyment by the other. The test is always imposed with regard
to the equality of right between the several riparian owners. If the
injury to one is merely incidental to the reasonable enjoyment of
the common right by the other, there can be no redress. [Citing
several cases, including Cox v. Howell.] [At 604]
The reasonable use rule is obviously easier to state than to apply. There are surprisingly
few cases in Tennessee on the rule, and most of them are old, and to some extent probably do not
reflect modern conditions. I am not sure why that is so. Perhaps there are at least three reasons:
water has generally been an abundant resource in Tennessee; Tennessee has not until recently
been a great manufacturing state; and today probably most water users obtain water for domestic
use from public water supplies which themselves tap into the rivers, lakes and other water
sources of the state.
The reasonable use rule prohibits applies to both quantity and quality.
Quantity
The Court in Cox v. Howell, above, said with respect to the application of the natural
flow rule:
[T]he proprietor of each bank of a stream is the proprietor of half
the land covered by the stream, but there is no property in the
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water. Each proprietor has an equal right to use the water which
flows in the stream, and consequently no proprietor can have the
right to use the water to the prejudice of any other proprietor,
without the consent of the other proprietors who may be affected
by his operations. No proprietor can either diminish the quantity of
water which would otherwise descend to proprietors below, nor
throw the water back upon the proprietors above. Every proprietor
who claims a right, either to throw the water back above him, or to
diminish the quantity of water which is to descend below, must, in
order to maintain his claim, either prove an actual grant or license
from the proprietors affected by his operation, or must prove an
uninterrupted enjoyment of twenty years which term of twenty
years is now adopted upon principles of general convenience, as
affording conclusive presumption of a grant. [At 136] [Emphasis is
mine.]
What is a reasonable use depends upon all the circumstances of the case at issue. It is
said further in Cox v. Howell, above, that:
What is a reasonable and permissible diversion of the water of a
running stream, with respect to the rights of riparian proprietors,
depends upon the size and character of the stream, the purpose for
which the diversion is made, and, as a general proposition, upon
the circumstances of the particular case. [At 137]
In the same case, the Court, citing other cases, said that:
....every riparian owner has a right to use primarily the water of a
flowing stream for domestic purposes, for the support of life, in
man and beast, and in addition, in a proper and reasonable way, for
the irrigation of his land, or for the operation of his machinery on
his land, provided the volume of water in the stream warrants this
use above domestic uses. [At 136-37]
In Howell v. Cox, two proprietors jointly owned a mill located on a stream. One
proprietor sold out his interest in the mill to the other, then built a mill upstream from the
original mill. His operation of the upstream mill deprived the owner of the downstream original
mill of water sufficient for operation. The Court enjoined the upstream mill owner from
operating his mill, reasoning that:
When the defendant sold to complainant his right and interest in
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the mill, it carried with it all the easements and appurtenances
necessary to its operation as they existed when the sale was made,
and the defendant has no legal or equitable right to disturb the flow
and a supply of water as they then existed; especially this is so
when the use of all the water is required to operate the mill, except
such as might be used for domestic purposes. [At 144]
Under Nashville, C & St. L. Ry. v. Rickert, 89 S.W.2d 889 (1936), the reasonable use
rule also applies to subterranean waters. The facts and outcome of that case are similar to those
in Cox v. Howell, except that in Rickert, the use of subterranean waters was an issue. Mr.
Rickert had sold to the railroad property upon which a spring was located, and the railroad used
the water from the stream to supply certain storage tanks. Mr. Rickert then dug and drew from a
well near the spring large quantities of water to the point that the railroad’s water supply from the
stream was severely diminished, pointing to the Court’s conclusion that the spring and the well
were drawing from the same underground stream. The Court recognized that Mr. Rickert had the
right to take from his well for domestic purposes, but enjoined him from taking water in
quantities that interfered with the railroad’s right to supply water to its trains and tanks.
Both Cox v. Howell and Rickert appear to stand for the proposition that under the
reasonable use rule, he who gets to the stream first, or he who buys the property containing the
stream from he who got to the stream first, might have a greater right to draw water from the
stream in some circumstances. However, it appears that even then, downstream riparian owners
still have the right to the use of water in quantities suitable for domestic purposes. As among all
the abutting riparian property owners that might be affected by the reasonable use rule, I do not
know enough of their relationships to know who might have a greater right to draw water from
the stream, or how much water to which they might be entitled for domestic use.
I suspect that a serious problem for at least some riparian property owners abutting any
stream that might serve the quarry, is the law of prescriptive rights. Cox v. Howell, above,
observed that the rights of riparian owners to have water flow over their land could be changed
by prescription. An easement by prescription arises when a person uses another person’s
property without permission (but with the acquiescence of the owner) for 20 years. [Town of
Benton v. People’s Bank, 904 S.W.2d 598 (Tenn. Ct. App. 1955); Bradley v. McCleod, 894
S.W.2d 929 (Tenn. Ct. App. 1998).] Generally, a person claiming an easement by prescription
must show that for a 20 year period his use of the land was:
- Non-possessory;
- Adverse;
- Open and notorious (some cases say “visible”);
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- Uninterrupted.
[Jones v. Ross, 38 S.W.2d 640 (1963); Livsey v. Noe, 460 S.W.2d 853 (1970); McCammon v.
Meridith, 830 S.W.2d 577 (Tenn.Ct. App. 1991).].
The above elements of prescription appear to apply to riparian water rights acquired and
surrendered by prescription. [Davis v. Louisville & N.R.R., 244 S.W. 483 (1922); Louisville &
N.R.R. v. Hays, 79 Tenn. 382(1883); C.N.O. & T.P.R.R. v. Moon, 2 Tenn. App. 477 (1926);
Louisville & N.R.R. v. Maxwell, 148 S.W. 692 (1912).]
I am not sure how long the quarry has been in existence, but I recollect the period is many
decades. During that time, it may have under a claim of right built facilities and engaged in other
practices to provide water for its operations that might have impinged upon the reasonable use of
the water by lower landowners, and created a cause of action in the landowners to which they did
not make a legally appropriate response. For prescriptive purposes, when the right of action
arises depends upon the facts. Apparently, the erection of embankments that hold back water are
themselves sufficient to create a cause of action on the part of the upper or lower riparian owner.
[See Davis v. Louisville & N.R.R., 244 S.W. 483 (1922)]. A map of the quarry’s operation
shows some characteristics that appear to be water impoundments of some kind, and which
might affect the flow of the creek in question.
Quality
The reasonable use rule appears to permit the reasonable pollution of water that does not
render the water unfit for domestic use. [Cox v. Howell, above; Bowling Coal Co. v. Ruffner,
100 S.W. 116 (1906), Summer v. O’Dell, 12 Tenn. App. 496 (1930).]
However, federal and state law may have rendered those cases and the reasonable use rule
with respect to water quality obsolete. I suspect the federal and state water quality laws that
apply nationally and in Tennessee are stricter than the water qualities would be under the
reasonable use rule. Alternatively, perhaps the reasonable use rule would today reflect those
laws.
Federal and State Statutes Governing Water Quality
One or more of the following prominent state and federal statutes that apply to water
quality in Tennessee, may apply to your question. But the application of any of them would
depend upon specific facts and circumstances not available to me. In addition, based upon my
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own knowledge, it appears to me that the State Department of Conservation and Environment is
making a Herculean effort to clean up the streams of the state. I suspect that if the stream in
question contains significant pollution, that department may have already examined it. Inquires
could be made in that area.
Water Quality Control Act of 1977 [Tennessee Code Annotated, ' 69-3-101 et seq.]
Civil and criminal penalties
Certain violations of that Act carry a civil penalty up to $10,000 per day for acts or
omissions listed in Tennessee Code Annotated, '' 69-3-115 and 125. Tennessee Attorney
General’s Opinion 89-109 opines that such a penalty imposed by a municipality under Tennessee
Code Annotated, ' 69-3-125 does not violate the Tennessee Constitution. The penalty may be
imposed on “any person” guilty of the violation.
It is also a criminal offense to violate the Water Quality Control Act:
- Class C misdemeanor for any person to unlawfully pollute the waters of the state to
violate, fail, neglect or refuse to comply with any of the provisions of the Act.
- Class E felony, punishable by a fine of $25,000 or incarceration for two years, or both,
for any person to willfully and knowingly:
- Falsify records, information, plans, specifications, or other data required by the
board or the commissioner,
- Pollute the waters of the state, or
- Refuse to comply with any provisions of the Act.
Criminal and Civil Penalties under the assumption of federal enforcement
Under 33 U.S.C. ' 1319 (' 309 of the Clean Water Act), if the federal enforcement of the
pretreatment rules is assumed, there are several kinds of penalties for pretreatment and other
violations:
- Criminal penaltiesBnegligent violations: Fine of not less than $2,500 nor more than
$25,000 per day of violation, or imprisonment of not more than one year, or both, for
(1) Negligent violations of pretreatment, permit and other violations of the CWA.
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(2) Negligently introducing into the sewer system or POTW any pollutant or hazardous
substance which the person knew or reasonably should have known could cause personal injury
or property damage, or which causes such treatment works to violate any effluent limitation or
condition in any permit issued to the treatment works (except in conformance with applicable
federal, state or local requirements or permits).
After first conviction fine is not more than $50,000 per day of violation, or by
imprisonment of not more than two years, or both.
- Criminal penaltiesBknowing violations: Fine of not less than $5,000 nor more than
$50,000 per day of violation, or imprisonment for not more than three years, or both, for:
(1) Knowing violations of permit or pretreatment requirements, and other violations of
the CWA;
(2) Knowingly introducing into any sewer system or POTW any pollutant or hazardous
substance which such person knew or reasonably should have known could cause personal injury
or property damage, or which causes such treatment works to violate any effluent limitations or
condition in a permit issued to the treatment works (except in compliance with applicable
federal, state or local requirements or permits).
After first conviction, fine is not more than $100,000 per day of violation, or by
imprisonment of not more than six years, or both.
- Criminal penaltiesBknowing endangerment: Fine of not more than $250,000 or
imprisonment of not more than fifteen years, or both, for knowingly violating permit or
pretreatment requirements, and who knows at that time that he thereby places another person in
imminent danger of death or serious bodily injury. If the person is an organization, it is subject
to a fine of not more than $1,000,000. Punishment is doubled after first conviction.
- Criminal penaltiesBfalse statements: Fine of not more than $10,000 or imprisonment
of not more than two years, or both for knowingly making any false material statement,
representation, or certification in any application, record, report, or other document, filed or
required to be filed under the CWA, or who knowingly falsifies, tampers with, or renders
inaccurate any monitoring device or method required to be maintained under the CWA.
After first conviction, fine is not more than $20,000 per day of violation, or by
imprisonment of not more than four years, or both.
Civil penalties
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Civil penalty not to exceed $25,000 per day of violation, for violations of permit or
pretreatment requirements or order.
Administrative penalties
Tier I: $10,000 per violation up to $25,000.
Tier II: $10,000 per day up to $125,000.
Administrative penalties are authorized for the violations of various sections of the CWA,
and violations of any permit requirements.
Generally, the penalties under state and federal law are not required to be the same.
There are various limitations on the criminal, civil and administrative penalties,
particularly the latter.
State of Tennessee v. Electroplating, 99 S.W.2d 211 (Tenn. Crim App. 1998)
Both Cunningham and his closely-held corporation were charged and convicted for
violating the Water Pollution Control Act of 1997 by discharging chromium into Metro’s sewer
system from his electroplating business in violation of his industrial user permit. Cunningham
was sentenced to one year and a $10,000 fine. His sentence was suspended, and he was ordered
to serve two years probation and 800 hours community service. Convictions upheld on appeal.
A significant number of criminal cases have also been successfully brought in the federal
courts, some against local governments and local government employees.
Safe Water Drinking Act [Tennessee Code Annotated, ' 68-221-701]
Civil penalties
$5,000 per day for failure to comply with Act and with rules and regulations issued by
the commissioner of environment and conservation.
Damages to state arising from violation.
Criminal penalties
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It is a Class C misdemeanor for any person to violate, fail, neglect or refuse to comply
with this Act or the rules or regulations issued pursuant to it.
It is a Class E Felony for any person to willingly and knowingly:
- Pollute or threaten to pollute any public drinking water supply system in the state;
- Fail, neglect or refuse to comply with any of the provisions of the Act.
Storm Water Management Act [Tennessee Code Annotated, ' 68-221-1101]
The purpose of this law is to “facilitate compliance with the Water Quality Act of 1977,
by certain municipalities, which are affected by environmental protection agency storm water
regulations, particularly those arising from ' 405 of the Water Quality Act of 1987, and ' 402(p)
of the Clean Water Act of 1977....”
Municipalities have the power under this Law to regulate storm water, by ordinance or
resolution. [Tennessee Code Annotated, ' 78-221-1105]
Civil penalties
The civil penalties authorized under this law are penalties for the violation of the
municipal ordinance or resolution regulating storm water.
Not less than $50 nor more than $5,000 per day.
Recovery of all damages proximately caused by violations.
Vandergriff v. City of Chattanooga, 44 F. Supp. 927 (E.D. Tenn. 1998)
In 1993, the City of Chattanooga passed a storm water ordinance that required certain
entities to obtain a Chattanooga Storm Water Discharger Permit, and imposed fees for those
permits, the size of which were based on a number of variables. The property owners and
businesses challenged the right of the city to pass the ordinance. The Court held the ordinance
valid against a number of challenges. For the purposes of penalties, the Court concluded that the
city was authorized to impose both the civil penalties authorized under the Stormwater
Management Act, and “misdemeanor” penalties for violations of the ordinance.
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Citizens’ Suits under Clean Water Act
33 U.S.C.A.' 1365 provides that:
(a) Authorization; jurisdiction
Except as authorized in subsection (b) of this section, any citizen may commence a civil
action on his own behalfB
(1)
Against any person (including (in) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in violation of (A) an
effluent standard or limitation under this chapter or (B) an order issued by the
administrator or a State with respect to such a standard or limitation,
or
(2) Against the Administrator where there is an alleged failure of the Administrator to
perform any act or duty under this chapter which is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the amount in controversy or
the citizenship of the parties, to enforce such an effluent standard of limitation, or such an order,
or to order the Administrator to perform such act or duty, as the case may be, and to apply any
appropriate civil penalties under section 1319(d) of this title.
(b) Notice
No action may be commenced
(1) Under subsection (a)(1) of this section
(A) prior to sixty days after the plaintiff has given notice of the alleged violation
to (in) the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any
alleged violator of the standard, limitation or order, or
(B) if the Administrator or State has commenced and is diligently prosecuting a
civil or criminal action in a court of the United States, or a State to require compliance with the
standard, limitation, or order, but in any such action in a court of the United States any citizen
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may intervene as a matter of right.
(2) Under subsection (a)(2) of this section prior to sixty days after the plaintiff has given
notice of such action to the Administrator....
Generally, a citizen (or citizens group) must be able to show direct injury to support the
suit.
There have been a significant number of successful (and some unsuccessful) citizens’
suits against both private businesses and local governments under this statute.
Let me know if I can help you further in this or any other matter.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/