Starnes Davis Florie


Starnes Davis Florie Attorneys Obtain Defense Verdict on Behalf of City in Clean Water Act and Inverse Condemnation Case

November 8, 2012

Richard Davis and Amber Whillock obtained a defense verdict on behalf of an Alabama municipality, including a dismissal of the plaintiff’s claims with prejudice and an award of costs, after a seven-day bench trial in federal court in Birmingham. The corporate plaintiff had sued the city under the federal Clean Water Act (also attempting to assert claims under the Alabama Water Pollution Control Act and related regulations) and various state common law theories for the alleged flooding by storm water runoff of its property, which is adjacent to a property owned by the city. (Plaintiff ultimately dropped all of its state law tort claims except for its inverse condemnation claim.) At trial, plaintiff claimed $1.844 million in damages. The evidence presented by the defense established that plaintiff’s property was historically wet and subject to flooding, that there were multiple causes for the historical flooding, that no action by the city altered the natural drainage, and that plaintiff failed to mitigate its damages by exercising its right to deflect storm water flowing within the city limits. The court held that plaintiff (1) failed to show that any discharge by the city was from a “point source,” thus failing to prove a Clean Water Act violation, (2) “in the absence of any credible expert testimony” failed to show any “discharge” by the city, thus failing to prove a Clean Water Act violation, and (3) in the absence of a viable Clean Water Act claim, plaintiff’s state statutory and administrative code claims failed as well. The court further held that the plaintiff failed to prove any “taking” by the city, so plaintiff’s inverse condemnation claim was also dismissed.

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