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My engineer says "That's what a spillway is for. You are not stopping the flow of water from your property."

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I thought that the spillway was something like a safety valve to help keep the entire dam from collapsing.

A few years ago on the island of Kauai, the owner of a property was trying to develop it to sell housing lots. The property included a dam and he wanted to put houses around the dam. In the process, he filled in the spillway.

Sometime later during heavy rains, the dam broke killing several people. The owner of the property was indicted with charges of manslaughter.

The criminal case has been mucked up for several years with appeals. It looks like it may finally be going to trial.

From http://www.hawaiireporter.com/james-pflueger-loses-appeal-in-manslaughter-case/123:

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Finally, the court disagreed with Pflueger that the manslaughter statute is vague in how it relates to his case. There were multiple witnesses who told the grand jury that Pflueger created a potentially dangerous situation by covering the 118-year-old earthen dam’s only spillway, Bennett said. He noted in the state’s brief that Pflueger “failed to uncover the spillway right up to the day of the tragic dam breach.”

Bruce and Cyndee Fehring flew from Kauai to attended last month's oral arguments. The deadly breach sent a tsunami of 370 million gallons of water down the mountain and onto their 6-acre property on Kauai’s North Shore just before dawn on March 14, 2006. The powerful waves that reached at least 20 feet high swept their daughter Aurora Solveig Fehring, son-in-law Alan Gareth Dingwall, and 2-year-old grandson, Rowan Grey Makana Fehring-Dingwall, to their death.

The roaring, raging wall of water also killed Christina Michelle McNees, who was 7 months pregnant, and Daniel Jay Arroyo, her fiancé who she was set to marry just hours later; Timothy Wendell Noonan, Jr., a friend who Aurora invited to stay with them after he lost his home; and Carl Wayne Rotstein, the Fehring’s caretaker and business partner.

Bennett, who brought the case against Pflueger, but now is in private practice, returned to represent the state pro-bono during May's oral arguments after a mutual agreement with the current attorney general.

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Pflueger has 90 days to appeal the ruling to the Hawaii Supreme Court, and the court could accept or reject the case and let the lower ruling stand. If an appeal is not filed, or the case is rejected, it will return to Kauai's Fifth Circuit Court for trial. If the Supreme Court accepts the case, oral arguments would likely be in the spring of next year.

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If the spillway somehow doesn't effect normal flow rate downstream of your property, then it's legal. If the spillway either increases or decreases flow rate down stream then it is not a-ok.

I don't see how any dam doesn't reduce the flow, to be honest. You impound a stream you increase the exposed surface area of the water, and therefore evaporative and capillary losses, and this will inherently decrease the flow by some measurable amount over time, even though the amount may be marginal.

FWIW, I have a few residential acres with a tiny ditch sized dry creek that runs across it. If it was in a flooed plane, I can modify it only so long as I don't alter the flow rate it can convey past any particular point without altering the shape of the flood plane, effectively.

I had wanted to build a pond along it, but it is dry 90% of the time, so that would have been very hard to keep watered anyways.

We have a dam at the house. The spillway is the caliche road coming up to the house. When any water is running through there, we have to drive across the field to get to the highway.

My guess is that we had water coming through maybe once in the last ten years for a few hours.

Have you talked to your neighbor about your concerns? You might try that first and see if it helps.

Have you talked to your neighbor about your concerns? You might try that first and see if it helps.

Eric, frequency doesn't matter to the Corps they don't use logic at all; and when they do the EPA trumps them and plays the idiot card.

I suspect our dam was grandfathered in years ago. It was built in the 1940s.

And as little rain as we have had in the last several years, it doesn't seem likely to make much difference. It's main source of water was runoff from irrigation. Now that everyone has switched to sprinklers, there is nearly no runoff. Between that and the drought, it's now rare that it has any water at all.

OFN,

you are talking about killing flow off your property... somehow using or storing all of the water that was once flowing through... or more likely, moving the flow exit to a new location, thereby changing the adjacent property (and likely their value)

a reservoir (however mini) will fill and continue to allow flow through once in equilibrium... (the same thing that beavers do)

The problem I see with this particualr case, is that they did not pay any attention whatsoever to the floodplain created by building the dam... (the same thing that beavers do)...

unfortunately, this one isn't as easy to solve as it would have been if a varmint had built the dam...


While I chose a power & machinery discipline over the environmental path, I still had to sit though the courses. While not completely possible, the goal of development regulations is to allow freedom on owned property while not changing any of the effects that property has on adjacent properties... the biggest problem with this is when you change land into an impervious surface (concrete) ... i can't tell you how much I f-ing hate concrete.

Bottom line is he can not create a situation where water backs up onto your property. His spillway should be at a lower elevation than the elevation at the property line, which might temporarly back up water in a downpour, but would drain to a point where the water is not standing on your property.

If that's clear?

I agree TR.

The people who helped create the CWA and most of the new laws around that time have all since left the Corps and EPA and now work as independent contractors who teach people like me how to get around the Corps on most issues because like most things govt run they have screwed it up big time and gotten it so far away from what it was intended for.

That is now sadly regardless, the EPA and the USACE are the two ruling bodies on these subjects now and no matter where your property is they can enforce their rights if they are ever given the option/chance. As another poster said, I've seen an EPA staff member and a USACE staff member almost get into a fist fight out at a project site because they didn't agree with each other. It's truly sad.

Lots of the people who work for the govt. in the environmental capacity are very.... passionate about their jobs. In my opinion some of that passion is misguided and wrong, but they still hold the power.

We bought 4 acres horse property in Parker County. A creek runs through part of our property. Well, used to.
The neighbor on the opposite side of the fence dumped piles of tires, concrete & who knows what, effectively damming the creek.
So now all rainwater collects in a sort of swamp pond on his property, empties into a sort of irrigation channel. That in turn breeches onto our property & basically completely floods out our land.
City & County are not helpful & attorney's are costly.
What is our recourse?