May 26, 1996|By MICHAEL GISRIEL
Dear Mr. Gisriel: We live adjacent to a stream running through a woods. We hear that the woods may be developed. What are the rules regarding our rights to keep the stream in the same condition it is now?
Ed Veit
Parkton
Dear Mr. Veit: As the owner of land under or bounded by a watercourse, you have rights in the waters that flow by your land, rights that have been recognized for hundreds of years. This rich tradition, which Maryland inherited as a former crown colony, is known as the "common law." Under our common law, landowners who have a natural flow of water by their land possess special property interests in that water, known as riparian rights.
According to a Maryland riparian rights expert, attorney Harold Burns, all owners of riparian rights may use the waters in a stream in a reasonable fashion. But the rights of upstream owners must be balanced against those downstream. It doesn't matter if a landowner has tolerated the nuisance for years.
The amount of water flowing in a stream remains more or less the same on average from season to season, year to year, and that flow cuts the streambed and flood plain to fit itself. But the water will flow higher and wider if the average volume flowing in the stream is increased appreciably by the introduction of additional water from outside the natural watershed, just as it will when sediment fills its stream bed.
Such a change in the flow in a stream causes its banks to erode. As the erosion proceeds, the earth washed from its banks falls into the water, taking trees and other flora with it, and flows downstream where it eventually comes to rest in the stream bed.
Although the stream banks will eventually stabilize, they will never return to where they were. Such erosion constitutes serious injury and is irreparable. It is very difficult to prove what portion of such damage is due to the wrongful acts of a single landowner. Thus, when riparian rights have been violated, often the only relief possible is a court order to stop the violation.
The argument that the state and county's regulatory scheme is sufficient to protect your rights is simply wrong. The local regulatory agency may be vigorous in its efforts to enforce its regulations, but those efforts may fail because the remedies at its disposal are often too few and too weak.
No agency can force any landowner to repair all the damage to watercourses its actions have injured because that damage is by definition irreparable. Within a few moments of its introduction into a watercourse much of the sediment or other pollutant is on its way downstream where it will eventually come to rest in Baltimore Harbor or the bay. Remedial action is inherently limited in its effectiveness.
More importantly, the state and county regulatory scheme is designed to protect the common interest in the environment, not an individual person's riparian rights. The common law has created those rights, and it is the duty of Maryland courts to protect them even against a municipality, such as Baltimore. In one case, the city wanted to redirect water from the Gunpowder watershed into Roland Run, but its scheme was stopped by a single landowner and the Maryland courts.
Pub Date: 5/26/96
