North Carolina Old Law Limits Water Options

For centuries, a North Carolina law with roots in medieval England guaranteed property owners, from gristmillers to truck farmers, the right to use water that crossed their land

The system, based on common law defined by judges over the years, worked well enough across Eastern states laced with rivers and streams. Disputes over what constituted “reasonable use” of water, the standard set out in the law, were settled in court.

Times changed as cities and industries grew and demanded more water. But the water law, called riparian rights (from the Latin riparius, “of a river bank”), didn’t change.

“Right now, we’re in a system where anybody takes anything they want, and the folks downstream are out of luck if they run out of water,” said Charlotte Mayor Dan Clodfelter, a former state legislator who pushed for reform.

The result: Industries that legally draw so much water they leave those downstream unable to operate. Or large farms that pump so much groundwater that neighbors’ wells go dry.

North Carolina is one of just two states in the Southeast – Alabama is the other – that cling to classic riparian rights.

Riparian rights have been tested in courts for decades, most recently in a Greensboro case that found that individual property owners can pull rank on public water systems serving thousands.

Raleigh and at least 10 other public water systems are on the hunt for new sources or storage. Many other systems rely on rivers or wells that can be unreliable.

The Greensboro case arose from 3,000-acre Randleman Lake, which a regional water authority built a decade ago to supply six communities.

As it filled, owners of five small hydroelectric dams downstream on the Deep River sued, claiming the reservoir robbed them of water.

The state Court of Appeals agreed. The judges cited case law in saying water diverted for a public water supply is not a riparian use. Downstream users who claim they are harmed have to be compensated, they said.

The water authority settled last year for $2.3 million.

The case had a chilling effect on other cities that would like to invest in new reservoirs or treatment plants. Without legal rights to their water, those cities risk losing court challenges after spending millions.

The case “reaffirmed the fact that we who supply water … are not riparian users and thus at the very bottom of the pile in access to water resources,” said Dan McLawhorn, an associate city attorney in Raleigh.

Cities ask for help

This summer, cities including Raleigh began asking environmental rulemakers for legal protection of their water.

The cities proposed legislation that would, for the first time, require permits for large water withdrawals. Permits would convey legal rights to water, including for non-riparian users, and avoid spats such as the Greensboro lawsuit.

Withdrawals of more than 100,000 gallons a day now only have to be registered with the state. North Carolina requires permits only in 15 coastal counties, called a capacity-use area, where groundwater levels had dropped sharply from overuse.

Greenville, which is within that zone, asked the state to approve a new water treatment plant that would let it pull more water from the Tar River.

Ten years later, the city is still waiting for approval, Greenville officials complained to the state Environmental Management Commission last week.

The city supports withdrawal permits and expansion of capacity-use areas to ease demands on overtaxed rivers and lakes. The measures would offer reassurance that the $1.7 million Greenville has spent on its project wasn’t wasted.

A permit system “would help a lot of people. But it would also create a lot of battles,” said David Springer, a water resources engineer for the utility. “Uncertainty, that translates to money on our side.”

Resistance to permits

Most states require withdrawal permits. Carolinas legislators explored them after a record 2007-2008 drought, and South Carolina adopted a permit system in 2011.

In North Carolina, Clodfelter and others sponsored legislation that would phase in permits after a period of data collection on water use. The bill, sponsored largely by Democrats, never got out of committee when Republicans took over control of the General Assembly in 2011.

It was a wasted opportunity, said Bill Holman, a former state environment secretary. Holman, now state director of the nonprofit Conservation Fund, co-authored a water-allocation study in 2008 that recommended permits.

“The most positive thing since my study is that the state has embraced science-based hydrologic models to try to identify where water scarcity is going to be an issue, like Charlotte and the Triangle,” he said. “But the political will to act on that information doesn’t currently exist.”

Tom Reeder, assistant secretary of the Department of Environmental Quality and a former water resources chief, said North Carolina is still functioning well under the old riparian rights system.

“From what I see, we just haven’t come to a point yet where we need it,” Reeder said. “I would not be enthusiastic about proposing another regulatory requirement that we don’t really need.”

For years, there never was a compelling reason for the state to figure out how to share its water, said McLawhorn, the Raleigh attorney who is a former general counsel of the state’s environmental agency.

“We were a water-rich state,” he said, “and we’re finally becoming one that’s not.”

Source: The Charlotte Observer

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