Save Our Environment
THE FLOWAGE EASEMENT WITH A JUST COMPENSATION VALUE OF ZERO By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section
Article 1, Section 10 of the Pennsylvania Constitution provides as follows: No person shall, for the same offense, be twice put in jeopardy of life or limb; nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured. In the case of Miller v. Borough of Indian Lake, No. 1269 C.D. 2020 (Pa. Commw. Ct. 11/16/2021), the Commonwealth Court, in an unreported decision, was called upon to review the valuation of a flowage easement. Please note that an unreported decision of the Commonwealth Court has no precedential value, see 210 Pa. Code § 69.414. The case is interesting to environmental lawyers because the flowage easement issue in this case arose in connection with action by the Pa. Department of Environmental Resources (PaDEP) to cause Indian Lake Borough (the owner of Indian Lake Dam) to address modifications to an earthen dam, located in the Borough of Indian Lake, Somerset County. The earthen dam created a large lake which is home to over 500 property owners, and the site is just off Route 30, near the Flight 93 National Memorial. Basically, a flowage easement gives the grantee the right to flood the grantor’s property under certain conditions. References to flowage easements are found in Pennsylvania law and in the Commonwealth’s rules and regulations in many locations, including the Fish and Boat Code, PennDOT’s rules and regulations, and the Pennsylvania Dam Safety and Encroachments Act and companion regulations, the latter administered by PaDEP, in 25 Pa. Code Chapter 105. The definition of a flowage easement is found at 25 Pa. Code 105.1, as follows:
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Flowage easements—An acquired right of use of another person’s land for water temporarily or permanently impounded by a dam or backwater from the installation, operation and maintenance of a water obstruction or encroachment. In connection with needed modifications to the Indian Lake Dam, PaDEP and Indian Lake Borough undertook to raise the elevation of the dam, so that the lake would impound more water during precipitation events, thereby reducing the chance for dam failure (a high risk for many earthen dams – if earthen dams overtop during flooding events, then the resulting erosion can cause catastrophic dam failure) and control flooding. One of the analyses PaDEP uses to evaluate necessary modifications to dams involves a determination of the Probable Maximum Precipitation (PMP) event for the specific location of the dam. PMP is the probable maximum depth of precipitation at a specific location for a given duration that is meteorologically possible. This is a probability exercise, based on geographical location and meteorological data, and there are a number of ways PMP can be predicted. PaDEP has published its PMP estimates and methodologies and they can be found at the Department’s website, at: www.dep.pa.gov/Business/ Water/Waterways/DamSafety/Pages/ProbableMaximum-Precipitation-Study-.aspx. The modifications to the Indian Lake Dam involved raising the elevation of the dam and expanding the existing flowage easement from 2,290 feet (above sea level, or “ASL”) to 2,295.5 feet ASL. This does not mean that the normal elevation of the lake pool would rise to 2,295.5 feet ASL; it means that during PMP events, the lake pool elevation could lawfully rise to 2,295.5 feet without a trespass occurring. The opinion does not discuss this, but I presume that the Indian Lake Dam will be designed with drainage and spillway facilities that are designed to keep the lake pool elevation somewhere at or below 2,290 feet ASL. The plaintiffs in Indian Lake were the Millers, who owned a house on the lake, and they would not grant the Borough an expanded 5.5 foot flowage easement.
