(dissenting) — Damnum absque injuria is the doctrine which allows for “[l]oss, hurt, or harm without injury in the legal sense; that is, without such breach of duty as is redressible by a legal action.” Black’s Law Dictionary 393 (6th ed. 1990). Such is the general rule which denies imposition of liability on the owner of an upland estate for damages occasioned to his low-land neighbor by surface water drainage. Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896).
To this general rule of nonliability we have recognized two certain exceptions relating to blockage of a water course and/or collecting and channeling water onto one’s neighbor’s property. However, as the majority correctly observes, neither exception pertains here. So we are left with three choices: (1) we can affirm the trial court and the Court of Appeals by dismissing the action; (2) we can abandon the doctrine altogether; or (3) we can engraft a “reasonable use” exception. The majority chooses the third, but I would repair to the first. Notwithstanding, even if the third course were open to us, I would not find these facts to flow within its banks.
The majority’s reasons not to adopt a reasonable use “rule” are equally applicable to rejection of a reasonable use “exception.” One such objection is that the reasonable use rule is “inconsistent with this state’s historic deference to property rights” and the adoption of such a rule “would constitute an abrupt break with past precedent.” Majority at 867. I would add, both the rule and the exception lack *870certainty and predictability. Both lead to an ad hoc jurisprudence. Commentators have found no difference in application between the reasonable use rule and the reasonable us e'exception.
If the common enemy rule says:
YOU CAN TAMPER WITH NATURAL FLOW and the modification adds:
IF YOUR CONDUCT IS REASONABLE and if the natural flow rule says:
YOU CANNOT TAMPER WITH NATURAL FLOW and the modification adds:
UNLESS YOUR CONDUCT IS REASONABLE then, there would seem to be no difference, and the summation would result in a new rule:
YOU CAN OR CANNOT TAMPER WITH NATURAL FLOW DEPENDING UPON WHETHER YOUR CONDUCT IS OR IS NOT REASONABLE.
The only suggested difference is in “the practical question of prediction and proof.” The notion is that with a modified natural flow rule, the burden is on one who interferes to show reasonable conduct, whereas with a modified common enemy rule, the premise is in favor of alteration and the person claiming damage has to show that the conduct was unreasonable. Such a distinction would seem to follow from the basic premise of each rule; if such a distinction exists, however, the cases on reasonable use modification have not made it clear.
5 Robert E. Beck & Edward W. Clyde, Waters and Water Rights § 453.3, at 518 (Robert Emmet Clark ed., 1972) (footnote omitted).
The majority’s attempt to “unambiguously” (Majority at 865) add some definition to what is or is not within the new exception is quite unsatisfactory:
What this means in practical terms is that landowners may improve their land with impunity (subject to local land use and permitting requirements) and are not liable for damage caused by the change in the flow of surface water onto their *871neighbors’ land, so long as the landowners act in good faith and do not damage adjacent property in excess of that called for by the particular project.
Majority at 864. The difficulty with the majority’s invented exception is amply demonstrated by the manner in which the majority attempts to apply it to the facts of this case. While the majority recognizes that landowners may improve their property “with impunity” and are therefore “not liable for damage caused by the change in the flow of surface water onto their neighbors’ land,” the majority would only include within this rule of nonliability (1) “act[s] in good faith” which (2) “do not damage adjacent property in excess of that called for by the particular project.” Majority at 864.
Here the uphill landowner clear-cut a forested area to allow for future development. There is no claim that this clear-cut was unreasonable or unnecessary for either the development or, for that matter, the harvest of timber. Nor is there any claim that the clear-cut was accomplished in an extraordinary or unusual manner, although all concede clear-cutting trees may increase diffuse surface drainage. Significantly, there is no evidence removal of these trees either blocked a water course or collected or channeled water. The common-law rule imposes no liability on the uphill landowner due to a mere increase in surface drainage which his development might occasion. Hedlund v. White, 67 Wn. App. 409, 416 n.10, 836 P.2d 250 (1992) (“[A]n uphill owner may incidentally increase the quantity or velocity of surface water in a natural watercourse or drain, so long as the water is not ultimately diverted from its natural flow.”); Wilber Dev. Corp. v. Les Rowland Constr., Inc., 83 Wn.2d 871, 876, 523 P.2d 186 (1974) (“[T]he mere fact that the amount of water reaching the plaintiffs land, by reason of the development of the platted lands, might be greater than it formerly was, would not entitle it to compensation for any resulting damage.”), overruled on other grounds by Phillips v. King County, 136 Wn.2d 946, 968 P.2d 871 (1998).
Therefore the proper legal conclusion is that the in*872creased runoff occasioned by this project would not, under any construction of the established rule, impose liability on the uphill landowner.
Indeed the only thing the uphill landowner failed to do was prevent runoff onto his downhill neighbor by constructing a dry well, dam, or intersecting ditch. While he or she could have done those things, it is the very purpose of the traditional rule to relieve the uphill landowner of that responsibility, casting it instead upon the lowland owner. To say then that the uphill landowner is required to exercise “due care” in the sense that the uphill landowner must not discharge surface water onto the lowland estate is to allow the so-called exception to devour the rule.3 Even jurisdictions that subscribe to the reasonable use “exception” do not premise a lack of due care upon the failure to construct a drainage ditch. See, e.g., Ballard v. Ace Wrecking Co., 289 A.2d 888, 890 (D.C. 1972) (“[S]ince the defendants did nothing more than clear the land in a manner which was reasonable and non-negligent as they were entitled to do for the purposes of demolition and new construction . . . there . . . [is] no duty on their part to construct a drainage ditch . . . .”).
But now the majority has apparently imposed an undefined duty upon the upland owner to use “due care” not to discharge increased surface waters onto the lowland property even though those surface waters are the necessary result of the development of the land for civilized use. By predictable consequence, every time the lowland property owner experiences water damage attributable to drainage he will have a potential claim against the upland owner for failure to use “due care” to prevent the water from flowing onto his property in the first place. Although the majority casts its rule as “the opportunity to clarify” Washington’s drainage law (Majority at 869), in point of fact it is a total abrogation of the certain rule of nonliability in such situations.
*873Moreover, if we impose a duty of “due care,” how do we determine when that duty has been discharged? The majority apparently defers this question to the jury without further definition, thereby inviting lack of certainty and ad hoc decision-making. It does suggest, however, that the failure of a landowner to conform to his environmental checklist may be “considered by the trier of fact” (Majority at 868), although the majority does not purport to limit the duty of due care simply to variations from an environmental checklist, nor even hold such lack of conformity, if found, demonstrates lack of due care (“We do not now hold that the mere failure to comply with the Environmental Checklist in and of itself constitutes a lack of due care.” Majority at 868). Unless we can identify a factual basis in this record which, if proved, would support the conclusion that this property owner has not exercised due care, we have no business remanding this case for a useless trial. Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 602, 611 P.2d 737 (1980) (purpose of a motion for summary judgment is to avoid useless trials when no genuine issue of material fact exists).
The majority cites no authority in support of its claim that breach of a permit condition, much less variation from an environmental checklist, may even be “considered” by the trier of fact to impose a duty on an upland landowner to benefit his lowland neighbor. I would not casually announce such a far-reaching doctrine without argument, briefs, and precedential authority, none of which is present here.
The State Environmental Policy Act of 1971 (SEPA) checklist supplied to the Department of Natural Resources stated runoff water “will flow into dry wells.” Clerk’s Papers at 57. Compliance with SEPA may be a condition precedent to permit issuance although it is not a permit in and of itself. An environmental checklist is an informational document submitted to the responsible official to assist his threshold determination as to whether further environmental review is necessary or appropriate. The *874checklist may be helpful to determine if the project has a probable significant adverse environmental impact. RCW 43.21C.031. At most a misrepresentation or lack of material disclosure in an environmental checklist allows the responsible official to withdraw the determination of non-significance. WAC 197-ll-340(3)(a)(iii). But even if it were ultimately appropriate to mitigate or deny a project pursuant to SEPA, such mitigation or denial must be based upon a formally designated policy, plan, rule, or regulation to pass legal muster. WAC 197-ll-660(l)(a). But there is no evidence of such a formally adopted regulation requiring dry wells in this record.
In the final analysis the majority’s imposition of a generalized duty of “due care” is not a clarification of preexisting law but its complete abrogation. Moreover, the only facts of record suggesting the uphill landowner failed to use “due care” in this case is the failure of the uphill landowner to take positive preventive measures to divert the natural flow of surface water away from the downhill property. The common law does not impose such a duty, nor does our precedent, nor does precedent from even those jurisdictions which have adopted the reasonable use exception. If the majority wants to reach such a result, thereby abrogating the applicable rule in favor of uncertainty and chaos, it should first overrule prior precedent and provide a justification for doing so. But it does not, and I cannot. Therefore I dissent.
Guy, C.J., and Madsen, J., concur with Sanders, J.
After modification, further reconsideration denied December 14, 1999.
Even if we were to impose a duty on the upland owner to capture his surface water, I cannot imagine how the majority would impose a similar duty upon the logging company, the dismissal of which is also reversed by the majority.