January 16, 2007
HUDSON--Now that the North Carolina Environmental Management Commission (EMC) has “awarded” Concord and Kannapolis a 10-million-gallons-per-day Inter-Basin Transfer (IBT) from the Catawba River—over the objections of a coalition of local governments and citizens from the upper Catawba basin—what’s next in this “water war?”
Caldwell Soil & Water Conservation District supervisor Dennis A. Benfield, who has been active in the water fight, has suggested "that IBT opponents respond aggressively and attack the transfer on three specific fronts: in court, in the General Assembly and in the political “appointments process.”
First, the coalition has more than $1 million in a litigation fund and has hired Raleigh attorney Charles Case, who is well-known and well-versed in court battles over water. Case was one of the attorneys involved in an interstate battle lasting more than a decade as Tidewater Virginia communities sought to transfer water from Kerr Lake/Lake Gaston, which straddles the border.
"Unfortunately, I don’t see an immediately effective alternative better than going forward with litigation to stop the actual Concord-Kannapolis water grab. Interestingly, the South Carolina attorney general’s office—representing thirsty communities south of Cabarrus and Mecklenburg counties—has threatened to sue immediately if not included in a 'multi-state regional compact' to handle future water distribution decisions," Benfield said.
"One question also might be whether the upper Catawba coalition could actually pool resources with the South Carolina folks to battle the water transfer on common grounds. Finding those 'common grounds' could prove to be the difficult part, but it would be an interesting meeting," he added.
"Number two, the current IBT statute of 1993 is a cumbersome law with many ambiguities, and leaders from Cabarrus County along with members of the EMC—none of whom anticipated the firestorm of opposition from the upper Catawba—kept saying they were 'only following the law.' Concord mayor Scott Padgett was particularly effective, whining that his community had spent over six years and $500,000 on the plan, blah-bl-blah-bl-blah…," Benfield said.
"From what I can see, lawyer Case is very well respected among both North Carolina state legislators and environmental agency managers for his 'water law' expertise. He has already put forth dozens of specific changes for legislators to consider, and even the EMC chairman agrees changes must be made. I noticed in December that legislators Sen. Austin Allran (R-Catawba), Sen. Jim Jacumin (R-Burke/Caldwell) and Rep. Phil Frye (R-Avery/Caldwell) were paying close attention to Case’s presentation."
If ever there was an issue that legislators from North Carolina’s western, piedmont and eastern sections, both Democrat and Republican, can coalesce around, it would be distribution of water from the state’s major river basins. Politically, it’s a fact that there are many more small and medium-sized communities in North Carolina than there are big cities. It’s another fact that the big cities will almost always be the “takers” and the rest of us, the “givers.”
Attorney Case is the key player now. He’s the one in the best position to push the buttons on litigation and to direct legislative changes in IBT law, Benfield observed.
"A third attack should focus on the makeup of the EMC itself, the group that voted 12-1 on Wednesday to grant Concord and Kannapolis the IBT. I couldn’t help but notice that only three members live in western North Carolina, two from Asheville and one from Shelby. Ten had home addresses from Chapel Hill, Raleigh and points east. For residents of the upper Catawba basin, that’s like trying to play 3-on-10 football! With odds like that, they’ll never get a fair hearing!" he said.
He asked rhetorical questions: "What needs to be done, politically, to change the makeup of that commission? Who appoints those people, and why is representation on such a critical body so geographically one-sided? It’s time for Republicans and Democrats to set aside partisan differences, and focus on something that’s really important for our common future."
"In general," Benfield concluded, "we need to realize that this 'war' isn’t over yet, unless we just surrender. We’ve only lost one battle."
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