Water Pollution

State and federal water pollution statutes provide one avenue of legal recourse for those harmed by water pollution. The common-law doctrines of NUISANCE, TRESPASS, NEGLIGENCE, STRICT LIABILITY, and riparian ownership provide alternative remedies.

Nuisances can be public or private. Private nuisances interfere with the rights and interests of private citizens, whereas public nuisances interfere with the common rights and interests of the people at large. Both types of nuisance must result from the "unreasonable" activities of a polluter, and inflict "substantial" harm on neighboring landowners. An injury that is minor or inconsequential will not result in liability under common-law nuisance. For example, dumping trace amounts of fertilizer into a stream abutting neighboring property will not amount to a public or private nuisance.

The oil and agricultural industries are frequently involved in state nuisance actions. Oil companies often run afoul of nuisance principles for improperly storing, transporting, and disposing of hazardous materials. Farmers represent a unique class of persons who fall prey to water pollution nuisances almost as often as they create them. Their abundant use of fungicides, herbicides, insecticides, and rodenticides makes them frequent creators of nuisances, and their use of streams, rivers, and groundwater for irrigation systems makes them frequent victims.

Nuisance actions deal primarily with continuing or repetitive injuries. Trespass actions provide relief even when an injury results from a single event. A polluter who spills oil, dumps chemicals, or otherwise contaminates a neighboring water supply on one occasion might avoid liability under nuisance law but not under the law of trespass. Trespass does not require proof of a substantial injury. However, only nominal damages will be awarded to a landowner whose water supply suffers little harm from the trespass of a polluter.

Trespass requires proof that a polluter intentionally or knowingly contaminated a particular course of water. Yet, water contamination often results from unintentional behavior, such as industrial accidents. In such instances, the polluter may be liable under common-law principles of negligence. Negligence occurs when a polluter fails to exercise the degree of care that would be reasonable under the circumstances. Thus, a landowner whose water supply was inadvertently contaminated might bring a successful lawsuit against the polluter for common-law negligence where a lawsuit for nuisance or trespass would fail.

Even when a polluter exercises the utmost diligence to prevent water contamination, an injured landowner may still have recourse under the doctrine of strict liability. Under this doctrine, polluters who engage in "abnormally dangerous" activities are held responsible for any water contamination that results. Courts consider six factors when determining whether a particular activity is abnormally dangerous: the probability that the activity will cause harm to another, the likelihood that the harm will be great, the ability to eliminate the risk by exercising reasonable care, the extent to which the activity is uncommon or unusual, the activity's appropriateness for a particular location, and the activity's value or danger to the community.

The doctrine of strict liability arose out of a national conflict between competing values during the industrial revolution. This conflict pitted those who believed it was necessary to create an environment that promoted commerce against those who believed it was necessary to preserve a healthy and clean environment. For many years, courts were reluctant to impose strict liability on U.S. businesses, out of concern over retarding industrial growth.

Since the early 1970s, courts have placed greater emphasis on preserving a healthy and clean environment. In Cities Service Co. v. State, 312 So. 2d 799 (Fla. App. 1975), the court explained that "though many hazardous activities … are socially desirable, it now seems reasonable that they pay their own way." Cities Service involved a situation in which a dam burst during a phosphate mining operation, releasing a billion gallons of phosphate slime into adjacent waterways, where fish and other aquatic life were killed. The court concluded that this mining activity was abnormally dangerous.

Some activities inherently create abnormally dangerous risks to abutting waterways. In such cases, courts do not employ a BALANCING test to determine whether an activity is abnormally dangerous. Instead, they consider these activities to be dangerous in and of themselves. The transportation and storage of high explosives and the operation of oil and gas wells are activities courts have held to create inherent risks of abnormally dangerous proportions.

The doctrine of riparian ownership forms the final prong of common-law recovery. A riparian proprietor is the owner of land abutting a stream of water, and has the right to divert the water for any useful purpose. Some courts define the term useful purpose broadly to include almost any purpose whatsoever, whereas other courts define it more narrowly to include only purposes that are reasonable or profitable.

In any event, downstream riparian proprietors are often placed at a disadvantage because the law protects upstream owners' initial use of the water. For example, an upstream proprietor may construct a dam to appropriate a reasonable amount of water without compensating a downstream proprietor. However, cases involving thermal pollution provide an exception to this rule. For example, downstream owners who use river water to make ice can seek injunctive relief to prevent upstream owners from engaging in any activities that raise the water temperature by even one degree Fahrenheit.