Ridenbaugh Press/Water Rights

Along with many other aspects of its water system, in-stream flows are coming under some scrutiny in Georgia – a state where a federal court decision could in years to come cost a large piece of the existing water supply.

An in-stream flows ad-hoc meeting on December 7 covered the full range of rules in that area on Georgia water, along with a review of rules in nearby states.

That part of the summary:

Gail Cowie distributed a handout summarizing instream flow policies in neighboring states.

• Florida – complex system mainly related to their 5 District structure. The goal is to prevent harm to water resources. Establishes the functions of the water resource and the instream flows are designed to protect that functionality. They use a pattern of flows over a year
(hydrograph). The instream flows are used for planning and permitting.
• Alabama – regulate wastewater discharges based on annual 7Q10. No water withdrawal permitting or other instream flow provisions.
• Tennessee – recently added instream flow considerations to state water quality standards to meet the fish & wildlife habitat criteria and support recreational uses.
• South Carolina – new water withdrawal permitting requirements that requires looking at minimum instream flows and also accounts for downstream users needs. Requirements look at seasonal instream flow needs.
• North Carolina – address through state water policy acts that requires site specific studies for
withdrawals of a certain size. Minimum releases from dams also varies based on physiographic province, stream size, and condition of aquatic habitat. A 2008 Act requires hydrologic modeling to evaluate ecological flows for all river basins across the state that will be used of regional water planning.

In summary, each State considers instream flows differently. The differences between States are related to how they manage resources and when their instream flow policies were adopted. Seasonal variation
is a trend as well as approaches that respond to the different uses or characteristics of water resources versus one set standard.

Data from the meeting was expected to be posted on a state web site.

Legal spokesmen for the top state attorneys in North and South Carolina say they could be close to an agreement that would end the three-year battle over the Catawba River, which runs through both states.

Attorneys general in both states, who sometimes have been sharp-tongued on the issue, said that an agreement probably was no more than weeks away.

South Carolina Attorney General Henry McMaster and Duke Energy South Carolina President Catherine Heigel on May 7 announced an agreement over details of the company’s 401 Water Quality Certification.

The agreement states that Duke agrees to provide improved water quality and water flow through its dam system “in settlement of all issues raised by the Attorney General in this 401 Certification proceeding.” Attorney General McMaster, in turn, has withdrawn from the 401 Water Quality Certification case.

As a result of the settlement, Duke will undertake the following water quality (dissolved oxygen) and water quantity (flow) enhancements at its lake Wylie Hydroelectric Development facility:

1. Minimum Flow Improvement – To approximate the new flow release requirements under the Comprehensive Relicensing Agreement (CRA), without the delays allowed in the proposed water quality certification decision of May 15, 2009 for the construction and other requirements that allow for “continuous flow” from the Wylie Dam, Duke will rapid-pulse an existing unit thereby running it 1 hr on, 2 hrs off, during periods when at least 1 unit is not running continuously (effectively giving a “continuous flow” through Wylie Dam where now Duke is not required to provide continuous flow) and Duke is not operating under the CRA’s Low Inflow Protocol or Maintenance and Emergency Protocol; and

2. Dissolved Oxygen (DO) Improvement – From May 15 through October 31 (i.e., the low DO (drought) season prescribed in S.C. Regs. 6l-68.C-D), Duke will operate one or more existing units that have dissolved oxygen enhancement capability, which will improve the DO levels in the flow discharging from the system.

“Duke Energy’s actions today will bring immediate benefit to South Carolinians and the Catawba River,” said McMaster. “This agreement is a major step forward for business, recreation, and the health of our state.”

“Duke Energy is pleased to reach this settlement with the South Carolina Attorney General,” said Duke Energy Carolinas – South Carolina President Catherine Heigel. “We hope this settlement will expedite the resolution of the SC water quality certification – putting us one step closer to delivering all the benefits that are included in the Comprehensive Re-licensing Agreement.”

“This resolution is due to the efforts of Attorney General Henry McMaster working with industry,” said Senator Wes Hayes. “Duke agreeing to increased oxygenation and a continuous flow will be beneficial to generations of South Carolinians. This agreement will have a positive impact on jobs and recreation in the Catawba River Basin for years to come.”

On January 20, the U.S. Supreme Court issued a decision allowing Duke Energy and Catawba River Water Supply Project, but not the city of Charlotte, to intervene in the case filed by South Carolina against North Carolina in the United States Supreme Court.

The opinion was written by Justice Alito and supported by Justices Stevens, Scalia, Kennedy and Breyer. Groups with bi-state interests (Duke Energy and the Catawba River Water Supply Project) were allowed to intervene. The City of Charlotte was not allowed to intervene because, the Court felt that Charlotte’s interests should be adequately represented by the State of North Carolina.

An opinion in partial support and partial dissent was delivered by Chief Justice Roberts and supported by Justices Thomas, Ginsburg, and Sotomayor. [from the Catawba Riverkeeper, January 20]

The court has yet to act on the substance of the case.

Concord and Kannapolis have backed off.

Those two North Carolina cities have sought to draw a massive amount of water from the Catawba and Yadkin rivers, and a state board in 2007 said they could divert as much as 10 million gallons daily. That prompted a massive dispute not only in the state, but also in South Carolina, into which the Catawba/Yadkin flows.

Now it has prompted a regional settlement on the withdrawal.

The cities still will draw from the river, but no more than six million gallons ordinarily, up to nine under specific circumstances. Officials around the area decided to take the deal. [see Charlotte (NC) Observer, January 20]

The Catawba Riverkeeper, a key participant in the activity around the withdrawal, had this statement:

The main points of the agreement hinged on Concord and Kannapolis modifying their ability, contained in their IBT certificate, to withdraw 10 million gallons of water per day (MGD) from the Catawba River at all times by significantly limiting withdrawals during times of drought. The agreement limits withdrawals to 6 MGD during times of most severe drought, or “exceptional” drought; 7 MGD during “extreme” drought; 8.5 MGD during “severe” drought; and 9 MGD during “moderate” drought. Further, the agreement restricts Concord and Kannapolis from withdrawing more than 3 MGD from the Catawba until July 1, 2015, and after they first are withdrawing 5 MGD from the Yadkin River.

“When we first started this process, we identified several objectives of our efforts to protect the Catawba River. With this agreement and some key legislation regarding water transfers that resulted from our efforts, we have accomplished most of our objectives,” said Hickory Mayor Rudy Wright, speaking for the Coalition. “We can now redirect our resources, time and money to economic development and other initiatives to improve the quality of life for our residents. We remain committed to protecting the Catawba River and have been pleased with the cooperation within this Basin. We have laid the groundwork for future actions to collectively promote the interests of Catawba Valley residents.”

To put the agreement’s drought restrictions into perspective, the Catawba River basin was in “extreme” drought conditions (also referred to as Stage 3) for approximately 500 days during the most recent drought. Had Concord and Kannapolis already begun withdrawing the 10 MGD during that time, no limitations would have been placed upon that withdrawal while basin residents were forced to restrict water usage. Now, under the terms of the settlement, that same withdrawal would have been limited to the transfer of 7 MGD for the 500 day period.

North Carolina Governor Bev Perdue has filed papers in opposition to re-licensed of Yadkin River dams which have been operated for the last half-century by ALCOA Power. The licensure is a key development in water rights arguments on the river.

From a September 21 statement from Stanly County, in support of the governor’s action:

The Stanly County Board of Commissioners (www.co.stanly.nc.us) is commending Gov. Bev Perdue for filing evidence on September 18, 2009 with the Federal Energy Regulatory Commission (FERC) in opposition to a 50-year licensing renewal request by Alcoa Power Generating, Inc. (“Alcoa”) for the Yadkin Hydroelectric Project. Gov. Perdue believes the multinational firm is failing to address the economic, recreational, water quality and other environmental needs of North Carolina’s citizens. Her filing is the latest action she has taken demonstrating how Alcoa has failed to show its concern for the health, safety and welfare of the general public as it attempts to maintain a monopoly on water rights and hydroelectric power generated by the Project, which includes dams and powerhouses along a 38-mile stretch of the Yadkin River at High Rock, Tuckertown, Narrows and Falls Reservoirs in Davidson, Rowan, Montgomery and Stanly counties. Continue Reading »

Henry McMaster

The South Carolina-North Carolina battle over the Catawba River continues – this time in the form of an opinion article from South’s attorney general.

SC Attorney General Henry McMaster had some sharp words for North Carolina, and a caution that a loss there could lead to problems defending water rights against another state – Georgia.

Here’s the text (from McMaster’s web site):

As recently reported, North Carolina is taking actions which could leave parts of South Carolina high and dry, and Charlotte-based Duke Energy is helping them.

Their actions would cut off a significant portion of South Carolina’s water supply and we are engaged in an unprecedented legal battle to stop them.

This fight is over our water, our jobs, and our economic future.

North Carolina’s actions, if unchecked, could cripple the economy of a large part of South Carolina and cause hardships for businesses and individuals throughout the region.

Further, their actions would give a green light to Atlanta and other Georgia cities to begin taking water from the Savannah River, from the upstate to the lowcountry, all to our detriment. Continue Reading »

The battle between North and South – Carolina, that is – over the use of the Catawba River continues.

Blan Holman of the Southern Environmental Law Center has set out the case for a water permitting system, a substantial change in law from the riparian approach South Carolina has long used: Continue Reading »

There’s some view in South Carolina that time has come to get definitive answers about the rivers along the state’s borders: Who has the right to water from them, how much and for what?

So far, the South Carolina Legislature, hard-strapped this year for money like its counterparts elsewhere, has decided against spending $2.2 million to fund a legal case, with North Carolina as the defendant, over water withdrawals from the Catawba River.

From the Beaufort (SC) Gazette, in an editorial: “A U.S. Supreme Court decision could provide much needed guidance on South Carolina’s right to use other rivers shared with North Carolina and Georgia. That includes the Savannah River, a critical water supply for the Lowcountry. Lawmakers should make sure McMaster has the resources his office needs to see this litigation through to a successful conclusion. The lawsuit, which the Supreme Court has agreed to decide directly rather than on appeal, was prompted by North Carolina regulators’ decision to allow 10 million gallons of water a day to be diverted before it reaches South Carolina. That was on top of the 72 million gallons a day already taken from the river in North Carolina. South Carolina had no input on the decision. S.C. Attorney General Henry McMaster has asked for another $2.2 million to pay for legal and technical help in the case. Unfortunately, state budget writers said no. It’s particularly unfortunate because McMaster has made good progress in the case.” [Beaufort 9SC) Gazette, March 9]

The attorney general of North Carolina, Roy Cooper, has issued a statement suggesting some cooling off on the state’s running back with South Carolina on the Catawba River, and urging that the Catawba-Wateree River Basin Advisory Commission, which was set up in 2004, deal with it.

The battle over the river was launched two years ago by South Carolina’s AG, Henry McMaster, that North Carolina was taking too much water out of the river. The battle has evolved into a legal case apparently headed to the Supreme Court. [WIS-TV, March 3]