WHO IS RESPONSIBLE FOR RAIN?

A major rain event occurs. In basements, raw sewage backs up from floor drains and wash tubs. Manhole covers pop open and raw sewage fills yards and streets. A wastewater treatment plant is deluged and bypasses raw sewage to the local stream. Who is responsible for these rain consequences?

Is it the city, which permitted homes to be built in flood plains without adequate storm water collection systems? Is it the homeowner, who has connected sump pumps and downspouts to the sanitary sewer? Is it the utility, whose collection mains may be undersized or blocked or manhole covers porous? Is it the wastewater treatment plant, which may have insufficient capacity to receive excess wet weather flows?

A USEPA press release of December 14, 2011 announced a significant consent decree settlement between it and the Metropolitan Water Reclamation District of Greater Chicago. The District provides wastewater treatment essentially for all sewage collected in Cook County. Historically, in major wet weather events, District interceptors and plants often have become surcharged by storm water inflows and infiltration. The consent decree appears to shift responsibility for the problem to the District. It establishes a schedule for completion of the District's deep tunnel and reservoir system to store untreated sewage so as to control untreated releases to rivers and Lake Michigan. It also requires the District to implement a "green" program by doing such things as distributing rain barrels and engaging in projects for green roofs and rain gardens.

Generally, however, it would seem that all involved parties have responsibility for inflow and infiltration of storm water into a sanitary sewer system. Cities have a responsibility to engage in reasonable land planning and effective storm water disposal. Homeowners have a responsibility to disconnect sump pump and downspout illegal connections to the sanitary sewer. Utility systems have a responsibility to police for illegal connections (for my clients, I developed illegal connection inspection and enforcement programs), to inspect mains and manholes for breaks and blockages, and to install sealed manhole covers. Wastewater treatment plants have a responsibility to assure that all excess flows that may be bypassed receive requisite treatment.

So, who is responsible for rain? Everyone!

EXCESSIVE RAIN CAN CAUSE PAIN: FLOODING AND SEWER BACK-UPS CLAIMS

Heavy rains this summer in many parts of the country, including Illinois, have resulted in flooded basements and other damage for some property owners. Storm water inflow into a sanitary sewer system can surcharge the system, causing sewer back-ups into houses. Surface water can inundate window wells and crawl spaces. Power outages can render sump pumps helpless.

Review of a few Illinois court decisions suggests some of the issues a property owner may encounter when seeking to recover for damages caused by such heavy rain events.

One obvious issue concerns recovery attempts under property insurance policies. In Industrial Enclosure Corp. v. Glenview Insurance Agency, 379 Ill. App. 434 (1st Dist. 2008), an insurance policy covered sewer back-ups but excluded flooding. Thus the coverage did not cover flooding damage in a building primarily due to creek overflow and surface water runoff caused by a 17 inch rain event. The court found that the insurance agent had no duty to advise customers of the import and meaning of provisions of policies faithfully procured according to the customer's requirements. The court said that the burden is on the customer to know the meaning of the policies it accepts. See also Smith v. Union Automobile Indemnity Co., 323 Ill. App. 3d 741 (2d Dist. 2001), upholding a policy exclusion for water damage primarily due to rain caused surface water flooding.

Another issue can be whether a property owner can recover from a municipality for sewer back-ups from the town's sanitary sewer system. In Dial v. City of O'Fallon, 81 Ill.2d 548 (1980), the Illinois Supreme Court affirmed that a city can be liable for sewer back-ups into a house during heavy rainfall, as a trespass. In Hull v. City of Griggsville, 29 Ill. App. 3d 253 (4th Dist. 1975), the court held that a city was liable for sewer back-up damage in a basement caused by a broken tile in the city's sewer system. The court said that, since the city had exclusive control of its sewer system and the customer did not contribute to the happening of the damage, the city was responsible.

A related issue is whether a municipality can claim immunity from liability for sewer back-up damage. This is a complex question. In Trtanj v. City of Granite City, 379 Ill. App. 3d 795 (5th Dist. 2008), the court held that a city did not have immunity in a suit to recover damages for sewer back-up to the basement. But see Alexander v. Consumers Illinois Water Co., 358 Ill. App. 3d 774 (3d Dist. 2005), where a sanitary sewer main became clogged from debris when a home owner cleaned out the lateral service line serving the homeowner's property. The court said that the village was immune from claims that it should have adopted rules prohibiting home owners from discharging debris into the sewer service laterals.

These court decisions provide an example of some of the issues a property owner may encounter when seeking relief from damages caused by heavy rain event flooding and sewer back-ups. However, it would seem that a good beginning point for anticipating the consequences of heavy rain events is to know the terms of one's insurance policy.