Catawba River

North and South Carolina at Legal Odds over Water

October 17, 2008 05:00 PM
by Anne Szustek
South Carolina is suing North Carolina over the diversion of water from the Catawba River. Will this be the first of several lawsuits in the drought-stricken Southeast?

Carolinas in Water Fight

Last year South Carolina state Attorney General Henry McMaster sued North Carolina over the latter state’s proposed plan to funnel 10 million gallons of water a day from the Catawba River. In turn, that river flows down into several tributaries that provide half of the South Carolina Lowcountry region’s freshwater supply.

“North Carolina simply can’t do that to us,” McMaster was quoted as saying by the Associated Press. “A river flowing through one state into another state doesn’t belong to the upstream state only.”

The interstate lawsuit went straight to the U.S. Supreme Court without being heard by lower courts, as is usually the procedure when one state has an outstanding legal complaint against another. Currently the case is in the information collecting and deposition phase. McMaster believes the state has a fighting chance to win the case.

Some legal experts disagree, however. Clemson University’s Caitlin Dyckman, a professor who concentrates on water allocation matters, was quoted in Charleston, S.C., paper The Post and Courier as saying that South Carolina is up against “daunting and somewhat untenable legal hurdles.” She also said that the state could have had a better shot at proving precedent if a bill regulating water taken from waterways had passed the S.C. state legislature, for example.

McMaster and Dyckman both agree that the lawsuit will be drawn out. The South Carolina state attorney first projected that the case would be resolved in 2010; however the entry of the city of Charlotte, N.C., Duke Energy, and a Union County, N.C., and Lancaster County, S.C. water system into the lawsuit is likely to extend the hearings.

The Southeast has been plagued by many water shortages of late, leading to a looming legal tug-of-war between South Carolina and Georgia over water, although McMaster sees that situation as having “more promise,” as Columbia, S.C., paper The State put it. “We have a great opportunity now. We’re right at the beginning of what could be a crisis,” he was quoted as saying by the paper.

Background: Droughts plague the South

A boom in population combined with two consecutive years of below-average rainfall have strained the South’s water supplies. Atlanta, Ga., and Raleigh, N.C., have been hit particularly hard. In addition to South Carolina’s standoffs with North Carolina and Georgia, other southern states are at odds over water supplies. Two Georgia state lawmakers introduced legislation in February to move up the state’s border with Tennessee to include part of the Tennessee River within Georgia’s territory.

They claim that the move would correct a surveyor’s error that dates back to 1818. State Sen. David Shafer, R-Duluth, was quoted by USA Today as saying, “The boundary between Georgia and Tennessee is the 35th parallel. … The 1818 survey party erroneously marked the 35th parallel about 1 mile south of its actual location.”

The same month, a federal appeals court ruled that Georgia needs prior approval from Congress to drain additional water from Lake Lanier, a source of water for Georgia, Alabama and Florida.

Historical Context: The Case of the Century: Arizona v. California

The Supreme Court cases of Arizona v. California involved 11 decisions, the first in 1931 and the latest in 2006, over rights to Colorado River water. Collectively dubbed by some legal observers as the “Case of the Century,” the decisions ruled on how much of the Colorado River’s flow belongs to California and Arizona. Nevada, Utah and New Mexico signed on to the case later. The United States also joined on to the case on behalf of five Native American nations. The final decision involved apportioning water rights in relation to the acreage of shoreline a state had on the river.

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