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Wednesday, October 14, 2009

SC v. NC over Catawba River

Posted By on Wed, Oct 14, 2009 at 10:48 AM

The Catawba River got its day in court yesterday, the Supreme Court that is. Why the Supreme Court? Because when one state sues another -- in this case South Carolina sued North Carolina -- that's where the cases are heard.

The argument? How the Catawba River will be used for drinking water, municipalities and industry. South Carolina says their sister to the north uses too much of the river. North Carolina says uh uuhh.

It's an argument that was bound to happen. Like any siblings sharing something, someone's got to figure out how to divvy things up. Of important note, this case could set a precedent for future water battles as our population grows and more and more is demanded from our fresh water sources.

The ruling? Hasn't happened yet, so stay tuned. It will come sometime before the end of the court's term, which ends in June.

At stake for Charlotte is the clean water that gushes from faucets and flushes toilets in homes, schools and businesses throughout much of Mecklenburg County. It's the largest municipal water user on the 225-mile Catawba.

South Carolina sued North Carolina in 2007, amid a severe drought, over the river's riches, saying it needed an adequate amount of water from the Catawba.

Tuesday's arguments, though, focused on a single issue: whether the city and Duke Energy, along with the Catawba River Water Supply Project, ought to be allowed to join the lawsuit as intervening parties on North Carolina's side. That would allow them more say in how the larger water dispute is argued in court.

The state of North Carolina supported the three interventions, while South Carolina opposed them.

The playas:

Charlotte has state permission to pipe 33 million gallons a day from the Catawba into eastern Mecklenburg County, which lies outside the Catawba basin. More recently - prompting the S.C. lawsuit - a N.C. environmental panel gave Concord and Kannapolis approval to pump 10 million gallons a day from the Catawba.

The Catawba River Water Supply Project is a joint venture of Union County, N.C., and Lancaster County, S.C. It draws out 36 million gallons a day from the Catawba.

Duke Energy controls a chain of 11 reservoirs in both states, which it uses to power hydroelectricity and for cooling water for its coal-fired and nuclear plants. It wants to preserve a water agreement it made with 70 regional interests, along with a pending approval from the Federal Energy Regulatory Commission for its power plants.

Justices aren't amused

"That just drags us into your problems among your water users," said Justice Sonia Sotomayor told Chris Bartolomucci of the Washington law firm Hogan and Hartson.

The case was heard in the Supreme Court because all lawsuits between states originate there. Chief Justice John Roberts said he worried about some sort of mission creep by private parties.

"Private parties are going to hijack our original jurisdiction," Roberts said. He asked N.C. Solicitor General Christopher Browning Jr. why the state couldn't take care of the local groups' concerns.

"Why can't you represent them?" Roberts asked. "You seem to be ceding your sovereignty to them."

Browning said the state couldn't properly represent the interests of either Duke Energy or the water project.

On the other side, justices had strong questions for South Carolina in its attempt to block the interventions.

"They are the three biggest users of water," Sotomayor told South Carolina's outside counsel, Washington litigator David C. Frederick.

Justice Antonin Scalia pointed out that much of the larger water lawsuit over the Catawba revolves around the three local entities anyway.

"To say they're just Joe Dokes is really just unrealistic," Scalia said.

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