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This publication was prepared for the Associa- tion of State Floodplain Managers by Jun A. Kusler, Attorney at Law, Chester, Vermont, and Rutherford H. Platt, Associate Professor of Geography and Planning Law, University of Massachusetts at Amherst. Case citations and more detailed ch'scussion may be found in a background report: Kusler, Floodplain Regula- tions and the Courts, 1970-1981, available for $5.00 as Special Publication 5, Natural Hazards Research and Applications Information Center, Institute of Behavioral Science, University of Colorado, Boulder (Campus Box 482, Boulder, CO 80309). Readers are also referred for further details to a draft casebook: Kusler and Platt, The Law of Floodplains and Wetlands: Cases and Materials, available from the American Bar Association, Special Committee on Hous- ing and Urban Development, 1800 M Street, NW, Washington, DC 20036. The opinions expressed in this document are those of the authors and do not necessarily reflect the view of the Association of State Floodplain Managers. The reader is advised not to rely upon this booklet to resolve specific legal questions. Advice of legal counsel or program officials in the state or community in question should be obtained. COMMON LEGAL QUESTIONS Pertaining to The Use of Floodplains and Wetlands Q. What roles do the courts play with regard to the use of floodplains? A. The Courts play three roles. First, they arbi- trate conflicts and determine liability for damage arising from flooding and drainage problems. Private landowners may sue each other or non- federal governmental bodies to recover damages for flood losses caused by modified drainage or obstructions to flood flowS..Such suits may be based on the common law the6ries of issuance, trespass, negligence, or riparian rights. Plaintiffs usually seek compensation for increased flood losses and/or injunctions requiring removal of fill or other encroachments. In some states, courts have entertained suits by purchasers of flood prone property against sellers under certain cir- cumstances. (See Q. 3.) Second, courts interpret and enforce federal, state, and local laws and regulations pertaining to floodplains and wetlands. These include such measures as floodplain zoning, building codes, subdivision controls, as well as federal regulations concerning flood insurance and disaster assistance. Third, courts determine the constitutionality of statutes, regulations, and other governmental actions such as the acquisition of property. Only a small portion of court suits addressing floodplains and wetlands deal with constitutional issues although these receive the most publicity. (See Q. 11.) Q. Are private property owners liable for causing increased drainage problems or [looding on someone else's land? A. This is a difficult question. Liability depends on the law of the state in which the case arises, as well as the nature and purpose of the defend-' ant's alteration of the previous drainage patterns or stream flow and the type of waters affected. In general, a property owner is liable for causing substantial and damaging increases in flooding. Traditionally, the issues of liability for drainage or flood flow modification has been decided on the basis of one or the other of two contrasting rules. The "Common Enemy Rule," followed by a dwindling number of states, views storm drain- age and flood waters a "common enemy" against which every property owner has a right to take defensive actions without liability to other parties.