A Classic Water War Over Public & Industrial Rights

Wednesday, March 31, 2010

by Taft Wireback, GREENSBORO NEWS-RECORD, March 1, 2010

nc waterA lawsuit between seven hydroelectric plants and the Piedmont Triad Regional Water Authority could help clarify North Carolina law for generations to come.

Experts say North Carolina is open to such conflicts because its water laws are relatively unrefined, with gaps between rules governing private use of streams for profit and those controlling public reservoirs, known as impoundments in legal jargon.

“Compared to a lot of states, we haven’t had that much conflict between competing water uses over the years,” said Bill Holman, former secretary of the N.C. Department of Environment and Natural Resources. “I don’t think our impoundment law has been challenged before.”

“This case could either settle it or raise other significant issues about the rights to store water (in a reservoir) and the rights of downstream users of that water,” said Holman, now the director of state policy at Duke University’s Nicholas Institute for Environmental Policy Solutions.

The small “hydro” plants on the Deep River claim the authority’s Randleman Regional Reservoir diverts water they otherwise could use to produce and sell electricity.

The water authority’s most recent audit warned that the case could trigger losses of $1.5 million to $5 million, a cost many area residents would bear in taxes or water rates.

The case had been scheduled for review in Guilford Superior Court last week, but was postponed.

The outcome of the Deep River lawsuit and a few similar water wars elsewhere in the state could determine how difficult and costly it is for growing urban areas to build new reservoirs, Holman said.

Dated laws

North Carolina water law is rooted, critics say, in a bygone era when industry harnessed streams as small as the Deep to power riverside textile mills.

Tar Heel courts stress the rights of private landowners at water’s edge. Some other states, particularly in the eastern half of the nation, put more emphasis on water as a public resource, critics say.

“We’re still stuck in the 18th century,” said Catawba Riverkeeper David Merryman, whose watchdog group monitors that river system. “If you have access to (a river), you have the right to stick a straw in and start sucking.”

The Deep River lawsuit shares some features with a more widely publicized controversy — industrial giant Alcoa’s ownership of a 38-mile stretch of the Yadkin River for hydropower production, said Yadkin Riverkeeper Dean Naujoks.

State government wants to take control of four hydroelectric dams from Alcoa, arguing to the Federal Energy Regulatory Commission that the river is a public resource that should no longer be in private hands. [Read rest of story]

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