Clean Water in the News

Much recent attention has been paid to the problem of erosion and sedimentation pollution in Buncombe County and all of Western North Carolina due to increased development. In response, many area residents and local officials have sought tighter regulatory controls over land development activities. In the debate over such regulations, one fact has gone largely unrecognized: private landowners in North Carolina whose property and waterways are damaged by sediment from off-site already have powerful tools to correct the problems and to be compensated for any damage to their property.

In 1973, North Carolina adopted the North Carolina Sedimentation Pollution Control Act. The Act was designed to prevent the detrimental effects of erosion and sedimentation. The Act regulates most land-disturbing activity in North Carolina. If such activities affect more than one acre of land, an erosion control plan must be filed and approved. These plans require that erosion control devices, such as silt fencing and sediment retention ponds, must be installed on the construction site.

Upon completion of construction, the developer must install permanent ground cover sufficient to restore the developed property to a stable condition. All of the provisions are aimed at preventing sediment from leaving the site and polluting adjoining lands or waters. Violating the Act subjects the violator to large fines, court injunctions, and the possibility of criminal prosecution.

A private citizen , however, does not have to wait on the government to issue a fine or prosecute the wrongdoer. Under both the Act and North Carolina common law, a landowner can bring a private lawsuit directly against the persons responsible for sedimentation damage. Through such a lawsuit a landowner can stop any future damages from occurring and can recover money compensation for damage which has already occurred.

If sediment from a disturbed site moves from that site onto your property or into your waterways, you may file a lawsuit under the Act itself seeking to have the Court issue an order enforcing the Act’s provisions or the terms of any erosion control plan already in place for the site. The court may also order an injunction, which forces the developer to cease their erosion causing activities.

Finally, and most importantly, a landowner whose land has been damaged by sedimentation may also recover money for damages caused by the violation of the Act. These damages include the costs necessary to remove any sediment or to restore a waterway to its previous undamaged condition. The Act even allows an injured landowner to recover his or her legal fees and costs incurred in bringing the lawsuit. This provision was included specifically to encourage private landowners with even minor damage to file a lawsuit, thereby helping to stop and correct the environmental harm caused by sedimentation. All of these statutory remedies provide powerful tools to those landowners who have been harmed by sedimentation entering their land or waters.

In addition to suing directly under the Sedimentation Pollution Control Act, the landowner may sue under the common law doctrines of trespass and nuisance. Sediment that originates from one person’s property and enters another’s may constitute a trespass. If this sediment interferes with one’s use and enjoyment of their property, then the damaged landowner can sue for nuisance as well. Lawsuits grounded in trespass and nuisance may be brought in conjunction with the Act or by themselves if the Act does not apply.

Appropriate regulatory controls along with sensible and consistent governmental enforcement are important to maintaining environmental quality in western North Carolina. But when it comes to sedimentation and erosion, citizens already possess the necessary legal tools to take direct action to correct existing problems and to recovery compensation for such damages when they do occur.

(John C. Hunter is an attorney in Asheville who practices in the area of environmental law. He is the former General Counsel to the North Carolina Department of Environment and Natural Resources. Robert C. Carpenter is an associate with Hunter’s firm.)