Supreme Court justices active in Carolinas water fight

McClatchy NewspapersOctober 13, 2009 

MCT

South Carolina Attorney General Henry McMaster speaks with reporters after attending a hearing at the U.S. Supreme Court regarding the water rights of the Catawba River for North and South Carolina.

CLIFF OWEN / MCT

WASHINGTON -- The nation's most powerful judges Tuesday plowed into a bitter dispute over water use between South Carolina and North Carolina, asking pointed questions of lawyers for both states.

S.C. Attorney General Henry McMaster said after the Supreme Court hearing that he was pleased by the justices' lively questioning in his 2007 lawsuit claiming that North Carolina wants to take too much water from the Catawba River before it reaches South Carolina.

"It would be a disaster if our neighbors to the north were allowed to use the river as if it belonged to them," McMaster told McClatchy. "We know in South Carolina that our path to prosperity is based on our use of water. It is vital to our industry, our business, our recreation -- to everything."

Charlotte City Attorney Mac McCarley said the South Carolina lawsuit threatens to limit water supply to residents and businesses in the Carolinas' largest city.

"If South Carolina won, that could have the impact of reducing water available for the Charlotte region in the future," McCarley said.

The 440-mile-long Catawba follows a southeastern route from its Blue Ridge Mountain headwaters in North Carolina to the Lake Wylie reservoir on the two states' border.

Once in South Carolina, the Catawba becomes the Wateree River and then emerges from Lake Marion as the Santee River before emptying into the Atlantic south of Georgetown.

At issue are 72 million gallons of water per day that North Carolina and various communities and businesses along the Catawba want to divert for use in other watersheds.

The high court hearing wasn't on the broad issues in the Carolinas water war. Instead it focused on the narrower question of whether three smaller entities that draw from the Catawba -- Duke Energy, the city of Charlotte and the Catawba River Water Supply Project -- should be granted status as full-fledged parties in the lawsuit on par with the two states.

South Carolina opposes allowing those entities to intervene in the case. Its stance against intervention was supported by the U.S. solicitor general, which represents the executive branch of the federal government in cases before the Supreme Court.

"If people can intervene, whether they represent big interests or small interests, they can frustrate the progress of the case, unnecessarily complicate the proceedings and increase the cost," McMaster said.

Carter Phillips, who represented Duke Energy at the hearing, said afterward that South Carolina had forced the giant utility into a major role in the lawsuit through voluminous requests for documents.

"The idea that we will have all the (legal) burden and none of the benefits is just fundamentally unfair," Phillips said.

Duke Energy provides hydroelectric power to the Carolinas. It has 11 reservoirs -- six in North Carolina, four in South Carolina and one in both states along their border. The utility releases water from the reservoirs during droughts.

The Catawba River Water Supply Project runs a plant in South Carolina that distributes water to people in Lancaster County, S.C., and Union County, N.C.

McMaster, who is running for governor, didn't argue before the justices, saying it would have been too time-consuming for him to prepare for the case.

McMaster listened inside the courtroom, its Roman marble pillars rising behind the nine justices seated at the front. He conferred with David Frederick, a Washington lawyer who specializes in water-use litigation, as Frederick presented the state's case.

"We are here to get our fair share of the river," Frederick told the justices.

More frequent droughts, which some scientists tie to global warming, have pulled other states into water disputes in recent years. A recent drought led Georgia, Alabama and Florida to battle over rights to the Apalachicola-Chatahoochee-Flint rivers systems. California and Arizona have battled over water from the Colorado River, and southern and northern California have fought over water for decades.

While it's difficult to predict the high court's rulings based on questioning during oral arguments, Chief Justice John Roberts was clearly the most skeptical of the three smaller entities' claims that they should be made full parties to the suit.

Roberts repeatedly asked North Carolina Solicitor General Christopher Browning Jr. why the state couldn't adequately protect the interests of the smaller entities.

"We believe we will represent the city of Charlotte, but we also support their intervention," Browning said. "This is a special attack on the city of Charlotte."

Roberts responded sharply: "If it's an attack on the city of Charlotte, I would expect the state of North Carolina to defend it."

Roberts also asked why Duke Energy is seeking to intervene on behalf of North Carolina when it operates power plants in both states. Assistant U.S. Solicitor General Eric Miller said it was because Duke Energy is headquartered in Charlotte.

Justice Antonin Scalia appeared to be the most sympathetic to the smaller entities' bid to join North Carolina as full-fledged partners in the case.

"These three entities account for a very large percentage of these inter-basin water transfers," Scalia said. "If indeed North Carolina has to cut back, as a practical matter these three entities are going to be out of luck."

(Barbara Barrett of the Washington Bureau contributed.)

McClatchy Newspapers 2009

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