Pond Boss Forums GENERAL QUESTIONS Help possible legal trouble, need advice

Hi all,

not sure if this is the forum to post this, but I need some helpful advice.

We built our pond last fall by digging in a low spot on our property, and collecting snow melt and runoff. The pond is great. Our neighbor live down flow from our property. Water in the spring naturally flows from the woods and fields across our lot, and then across our neighbors to her pond, on its way to a wetland. it follows a course that has flowed this way for years.

Our neighbor does not want us to have a pond, and has done much to stop the construction (which she failed at). She is now putting up a berm that will block the water flowing out of our lot and onto hers. When we built the pond, we did not change the inflow or outflow to and from our property, and we created a catch basin (our pond) to help control the water onto her lot. she is convinced that we will flood her lot.

Fortunately, our pond will not overflow until next spring. With her new berm, however, our whole lot will flood, and make it impossible to build. Has anyone else gone through this? we are trying to talk to her again, but don't hold out much hope that she will listen.

CoachB, you have an interesting situation. There are state laws that very clearly address what one can & can't do regarding water flow onto and out of private properties. You may very well be able to do an internet search for Michigan's laws. Otherwise, I would suggest contacting an attorney. For instance, in Texas, you can't build a pond that backs water up on an ajoining property without some kind of deeded consent. du

Coach, did you check with the Michigan Dept. of environmental Quality?
http://www.michigan.gov/deq/0,1607,7-135-3313_3682_3712---,00.html

Coach

Wow, what a bummer...I'm sorry to hear about this. Bruce had a similar situation with his neighbor, but it's not my story to share and I don't know the details or how things ended up. Might be worth a PM to him - but David's right it probably all ends up coming down to state laws.

I don't suppose a bouquet of flowers, a nice Chardonnay and BG fillets would soften her stance?

If you haven't already started, get going with picture documentation. You will need all the evidence of before and after that you can get.
This sucks, but it is imperitive that you discover your rights. I would start with the folks at your county NRCS (div of USDA). They will get you pointed to the correct folks in the guv to feel out your property rights. I imagine an attorney will also be in your future.

Thanks for the suggestions. I really like the fillet idea! We are trying to talk with her again to see if we can come to some sort of working terms. I think, however, we will end up in court. Please keep sending the ideas, I need all of the suggestions I can get! My next step is to sic my wife on her! She is much more diplomatic than me.

So If her berm gives out will this flood her own pond? Post pictures when you get some

I will post some pictures tomorrow. I have got to get out there and document everything. thanks for the picture ideas. these are the things I need to be reminded of. They make perfect sense, but i don't always think of it.

Are we related?

That's a difficult situation, Coach.

I don't know Michigan's laws, so I can't help with any specific advice. I will say this: When you say that the water flows on a natural course into "wetlands," you could be opening up a completely different can of worms.

The feds can control water use that affects "wetlands" as defined by federal statutes. I'm not sure if the water course going through your land would apply, but it's worth finding out.

CoachB, Are there any field tiles you could tap into or is there a way you could build a swale (like a mild ditch) to run out to a drainage ditch?

He probably can't change the path of flow if it feeds a wetland. I am sure she will have to destruct her berm if its going to back up water on coaches land its just not right.

I am having that experience now, only I am her.

As a suggestion, try looking at it from her perspective and working through it on her end before you really have another sit down with her. What would you do if you were in her position to work it out with you in your position?

Going to court is not the best option, not even a good one, in reality not even a poor one, neither is involving the government, on any level. Those are avenues of the very, very last resort.

She has some fears, real or imagined, they need to be identified and addressed. The fears maybe based on unknowns or what ifs, if that is the case then you might want to help her thorough them with facts, best guesses and reassurances. If it turns out both of you are exercising your property rights, as it looks like in my case, then you are in trouble.

If her case is similar to mine, the biggest fear is that the water flow has been changed and not in a good way. The same amount of water that was flowing through her property 5 years ago is the same amount as it is today. Is the difference that the flow has been diverted by the pond? That is what is happening to me.

So far both of your fears are more emotional than empirical. This creates a difficult atmosphere for problem resolution. You might try finding a common ground, get to know the person, she is going to be your neighbor.

Being right or wrong is less important than fixing the problem to both of your satisfaction.

Coach:
No fun at all is it? MDEQ is short on funding, the Wetlands portion of what they do might be taken over by a county office, probably Oakland, at least that is what they are talking about. What ever happened to live and let live? I wish I had some advice for you.

I can see her point of view: You are building a pond up stream from hers and, in her mind, potentially taking away the water that used to go straight into her pond. Sounds like her pond is upstream from the wetlands and her berm would keep water out of her pond and the wetlands at least some of the time. "Cutting off her nose to spite her face" sort of thing. I don't see how she could consider all of the water upstream from her pond "hers" unless she owned all of the land. Even then she would need to consider downstream uses, at least she would in Texas. Keep it out of court, even a lawyer will tell you to settle out of court or get some kind of binding arbitration. Cheaper and a whole lot quicker.

actually, she thinks that we will cause more water to flow onto her property, not less. She wanted us to sign a letter that absolves her from any liability if the 400+ acre wetland down from her floods because of our 1/2 acre pond. We, of course, did not write sign the letter.

I know she is scared, and this is how she acts. We have tried to talk to her about her concerns, but all she says is that she is just trying to protect her property value. I told her that I understand and that we didn't want to hurt her property either. she then suggested that we not do the project, and that has been her stance ever since.

We are trying to see it from her view, but lots of her responses seem to be irrational (like building a berm that completely blocks all water flow).

Thanks for all of the input. This is giving me lots to think about. Keep it coming! I will post pictures this evening.

Often times, these things are dealt with without either party knowing what the true laws & land owner rights are, and this is not helped by the same often being very vague and subjective.

When entering into "negotiations" with her, you must know the legal backstop. Even if you play that part close to the vest, you still have to know what it is.

Some money spent now to know that is worth it.

Coach, out of curosity where does your pond outlet and emergency overflow flow to?

When I built my pond, my county said I needed an outlet pipe and emergency overflow. At the time, I only had one option for an overflow pipe: 150' through my neighbors cow pasture to a deep county ditch/creek. I asked my neighbor about putting in the pipe and he said it was fine but when I brought up an easement, he said he wouldn't sign but he had no problem with the plan. When I spoke to my county soil and water dept. they said that if there was a tile that ran from my property though his, that there was an "implied easement" giving me access for repairs and maintenance. We found a 4" clay tile about 6' down. Problem solved.

Most soils perk to some extent. Obviously, ponds are constructed so they don't. Here, if a company moved in next door and installed an acre parking lot that drained onto your property, they would be required to remedy the situation if it was causing you problems. I can't see how a pond would be any different.

Warning!! I got an idea . Ask your neighbor if she would be interested in the two of you hiring a consultant. You might be surprised what a third party “pro” can do when it comes to bringing two opposing party’s together for the common good of all involved.

I am not a lawer, but will offer advice anyway based on my knowledge of Indiana rules. You cannot legally back water up onto your neighbors property without permission. Thus, your neighbor is breaking the law. Your pond will actually reduce the variability of water running downstream by acting as a buffer. During floods, your pond will absorb some of the water and slow its passage down stream. Your pond will also pass some water down stream (through leakage) during droughts keeping your neighbors pond at a more consistent level. Call your fish and wildlife department and see if they will explain this to your neighbor. Her ignorance of how this works is very common. You do not need to accept her flooding your property.

Is there anyway that you can divert the water elsewhere without legal or government action?

Is there anyway that you can divert the water elsewhere without legal or government intervention?

I'm probably just asking the obvious but CoachB, when you constructed your pond did you go through all the required regulations/permits/red tape to get your pond approved? In my mind this has a major impact on how to approach your situation. If your pond was not legally obtained/built/permitted then you have an entirely different set of problems.

If your pond is "legal" then here's my two cents:

If you can solve this through a non adversarial method then you will be happier in the long run. That being said, IMHO I would prepare for battle first. There is no substitute for knowledge. Find out what rights you have and what rights the neighbor has, determine how the wet lands may play into this picture. If it were me I'd engage an attorney at least for a consultation. Outline the facts as best as you can and discuss this with an attorney that specializes in this area of law. Even if it costs you a few hundred bucks for a consultation, IMHO it will be well worth it.



Rad has an excellent point here. IMHO, after meeting with an attorney, then sit down with her (and if your wife has a better rapport with the neighbor then let her do it) find out what her concerns and fears are. DO NOT be confrontational with her AT ALL, Do not mention that you have discussed this with an attorney. Simply meet with her, perhaps walk through the area and find out what her concerns and fears are. Don't attempt to problem solve at this point, be nice, smile, do not threaten, do not show your hand as to what you do or do not know.

Although this may not get the popular vote, I'm recommending that you meet with the attorney and determine what legal ramification may come into play first for several reasons. Over my 29 years in public accounting, I've been involved quite a number of successful business negotiations and court cases. One thing that I've learned is that knowledge is power in a negotiation.



This quote leads into second important lesson that I have learned which is that how you apply that knowledge/power will affect the potential outcome. Do not become a "right" fighter. Just because you can take a particular legal action doesn't mean that taking that action will ultimately help you solve the problem.

IMHO, a good attorney will be able to provide you with:

1 - a overview of what the law is (probably in general terms) related to your issue. Several branches of government may be involved in these types of issues (water impoundment and surface water diversion) - federal, state, and local law could ALL apply. As a layman you may not even know all of the regulatory agencies that could come into play. An attorney that specializes in this WILL know.
2 - a plan of action that should be taken immediately (taking photos, perhaps video, etc, etc).
3 - advice on how to proceed with the neighbor, perhaps pointers on what to say and as important if not most important - what NOT to say.
4 - A discussion on what legal course of action will have to occur if the issue cannot be solved in a "friendly" discussion format.
5 - The attorney will be familiar with you and your situation and therefore is more likely to be available quickly should the need arise.

Know this, if JHAP were your unhappy neighbor then I'd have already taken these actions, that's not a threat, it's just a fact. Please note CoachB, I'm in no way criticizing you, nor am I suggesting you did anything wrong. I'm just offering some friendly advice that I learned in my very brief stint in the Boy Scouts. "Be Prepared."

I'd rather go into a peace negotiation with a sheathed sword than go in empty handed.

See the following link for situations where a permit for a pond is needed in Michigan. I copied the text following the link below from the info at the link.

http://74.125.113.132/search?q=cache:h_M...n&ct=clnk&gl=us

A permit from the DEQ is required
(under Part 301 and Part 303 of the
Natural Resources and Environmental
Protection Act, 1994 PA 451) prior to
construction of a pond if the pond will be:
Within 500 feet of a lake or stream, or
connected to a lake or stream;
‚ Within a regulated wetland;
ƒ Within the 100-year floodplain of a river or
stream;
„ Five surface acres or more in size; or
… Created by construction of a dam across a
river or stream. Dams with a height of six
feet or more and which impound five acres
or more, will require a plan prepared by a
licensed engineer. Height and surface area
are determined based on design flood
conditions.
________________________________________

Coach, sorry to hear about this issue. You are getting a lot of good advice though. JHAP, good advice regarding the legality of the pond construction in the first place. You certainly don't want to raise any flags around an illegal pond.

A couple of thoughts that spring to my mind.

1. Riparian water rights- Riparian Rights: Riparian rights are those where water is extracted for use on lands that directly boarder the stream. Any owner of a parcel immediately adjacent to a water course has the right to take water for domestic and agricultural use at any time unless specific deed restrictions are stated in the title to the land. Riparian rights do not require a permit from the SWRCB, however, the SWRCB requests that riparian water users file a statement of diversion and use.

Water may be diverted from upstream areas for delivery to downstream riparian lands as long as agreements are in place with the land owner at the point of diversion and no damage is inflicted on intervening land owners. Riparian rights are not superior by virtue of prior use, so proposed new reasonable use and streamflow diversions have equal standing under the law. Because of these statues, the SWRCB can not resolve differences between holders of riparian water rights. If insufficient water is available for all riparian users, ultimate recourse is in the courts. Water taken by virtue of riparian water rights cannot be impounded for deferred use. Riparian water rights also cannot be transferred to non-riparian owners.

Things may be different here in California (land of the enviro-nazi's) than in your neck of the woods, but find out about your water rights, they may give you leverage or perhaps make the battle not worth fighting.

2. Dealing with wetlands is dangerous business. Be careful who you even mention the word wetland to as this will raise flags with a whole slew of different state and federal regulatory agencies.