Chang, Kyle K.

English

University of Denver

Water Law Review Volume 7 Issue 2 Article 50 1-1-2004 Huls v. Thorpe, 2003 Cal. App. Unpub. LEXIS 11333 (Cal. Ct. App. Dec. 4, 2003) Kyle K. Chang Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Kyle K. Chang, Court Report, Huls v. Thorpe, 2003 Cal. App. Unpub. LEXIS 11333 (Cal. Ct. App. Dec. 4, 2003), 7 U. Denv. Water L. Rev. 495 (2004). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSTier 1 waters applies when a future action results in "significantlylowered" water quality or when a future action causes "significant" or"substantial" augmentation of pollutant loadings.The appellate court started the analysis with four importantconsiderations: (1) the court should accord substantial weight to theRegional Board's interpretation, (2) the Regional Board has moreexperience than the court with the scientific and technicalconsiderations of the issues considered in this case, (3) the permitsexpired in July 2003, and (4) the Regional Board set a date toimplement the TMDL for mercury after the permits expired. Theappellate court further concluded that for Tier 1 waters, an increase inmercury discharge does not necessarily equate to either a degradationof existing uses that are beneficial or degradation of the water qualitylevel needed to protect the existing uses. The appellate court heldthat an action triggers the federal and state antidegradation policieswhen it causes a lowering of the water quality and not necessarily whenthere is an increase in the discharge of a pollutant. It also affirmed thesuperior court's determination that allowing higher mass limits forplants with significant reclamation programs does not violate theantidegradation policy.The superior court deferred to the Regional Board'sdetermination that an increase in the amount of mercury allowableunder the permit would not cause undue degradation to these waterbodies and upheld the superior court's affirmation of the permits. Inturn, the appellate court held that the superior court did notprejudicially abuse its discretion. According to the appellate court,Baykeeper urged the court to make a policy choice, which the courthad no authority to make. Concluding, the appellate court stated thatthe legislature vested the regional and state water boards-not thecourts-with the authority to make the policy choices on this type ofissue.Adriano MartinezHuls v. Thorpe, 2003 Cal. App. Unpub. LEXIS 11333 (Cal. Ct. App.Dec. 4, 2003) (holding that no triable issue of fact existed where upperlandowner did not engage in affirmative conduct causing propertydamage resulting from surface water flow onto lower landowner'sproperty).Ralph and Edna Huls owned property directly behind and belowproperty owned by Richard and Diane Thorpe. From December 1997through March 1998, seasonal heavy rains caused flooding from theThorpe property onto the Huls property. Although the Hulsesinstalled a drain on their property, water from the Thorpe propertycontinued to flood their land. The water flow allegedly caused mold,mildew, and fungus to grow in the Hulses' home, adversely affectingtheir health and property. The Hulses filed a lawsuit in theIssue 2WATER LAWREVIEWSacramento Superior Court alleging trespass, nuisance, andnegligence and seeking damages resulting from the flooding. Thetrial court granted the Thorpes' motion for summary judgment, andthe Hulses appealed to the Court of Appeal of California, ThirdAppellate District.The court reviewed the Hulses' appeal de novo to determinewhether the trial court appropriately granted the Thorpes summaryjudgment. The court found that historically three doctrines emergedfor the treatment of surface water: the common enemy rule, the civilrule, and the reasonable use rule. The common enemy rule states thatlandowners have an unqualified right to fend off surface waters thatcome onto their properties. The civil rule states that lower ownersmust accept surface waters that drain onto their lands from upperowners, but that upper owners cannot alter natural drainage systemson their properties to increase the burden. The reasonable use ruleseeks to determine the surface water rights of all parties involved usingall relevant factors.Specifically, the Hulses argued that the trial court erred because itfailed to apply the reasonable use rule. The court, however, found thecivil rule applied in California, as California accepted the civil rule asthe basis for peaceful relations between neighboring landowners.Pursuant to the civil rule, a landowner is liable for damages caused bysurface water flooding where that landowner affirmatively alters his orher property to cause water flow onto an adjacent property byunnatural means. The court noted that courts could not apply thecivil rule without also considering the reasonable use rule. As such,the landowner threatened with injury to his or her property by flow ofsurface waters must take reasonable action to avoid or reduce anyactual or potential harm. Here, the court found that the Thorpes hadnot affirmatively altered their property. Accordingly, no unnaturalsurface water flow from the Thorpe property onto the Huls propertyexisted. The court thereby found that no triable issue of material factexisted and affirmed the trial court's grant of summary judgment.Kyle K. ChangCOLORADOCity of Golden v. Simpson, 83 P.3d 87 (Colo. 2004) (holding that theplain terms of a change decree required city to stop diverting waterfrom creek, and that water court did not err in dismissing city'scomplaint seeking injunctive relief after it denied city's temporaryrestraining order).The City of Golden ("Golden") originally diverted water fromClear Creek at the Oulette Ditch, located several miles downstreamfrom Golden. Golden diverted water at the rate of 6.69 cubic feet perVolume 7

Huls v. Thorpe, 2003 Cal. App. Unpub. LEXIS 11333 (Cal. Ct. App. Dec. 4, 2003)

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Huls v. Thorpe, 2003 Cal. App. Unpub. LEXIS 11333 (Cal. Ct. App. Dec. 4, 2003)

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