Whisky’s for Drinkin and Water’s for Fightin: The Environmentalist Perspective Rick Gaskins Executive Director Catawba Riverkeeper Foundation

Overview Summary Who or what is Catawba Riverkeeper? A few basic facts. Why should we care about IBTs? What is the problem with IBTs? What is the solution? What are the significant aspects the settlements in the Concord-Kannapolis cases?

Summary In the East, we have always assumed that there is plenty of water, and this is built into our laws and infrastructure. – Eastern water law is based around the problem of having too much water. – Land development and agricultural practices reflect the abundance of water. – There is virtually no cost for water taken from a river or aquifer.

Summary (continued) Our current practices are stretching water resources to the limits. IBTs are one part of the problem. Need to create a system that: – Makes the best use of water – Keeps the eco-system healthy, by, among other things, maintaining minimum ecological flows.

Catawba Riverkeeper Foundation The Catawba Riverkeeper Foundation advocates for the health, protection and enjoyment of the Catawba River watershed. Our Vision: That the waters of the entire Catawba River basin will always be of high quality and abundant quantity to sustain and enhance the lives of all the humans, the wildlife and the ecosystems that depend on it.

Catawba Riverkeeper 501(c)(3) non-profit Not a land trust Not Catawba Lands Conservancy Three primary tools: – Education – Prevention – Advocacy Party in the Concord-Kannapolis IBT litigation.

Who “Owns” the Water in North and South Carolina? Under Public Trust Doctrine, the Sovereign in both states holds title to land underlying freshwater navigable streams below the high water mark in trust for the public benefit, e.g., fishing, swimming, and other beneficial uses. Public Trust Doctrine codified in Pandects of Justinian. Public Trust Doctrine affirmed in SC Constitution, Art. XIV, Section 4, and SC Code Ann. Section , and State v. Columbia Water Power Co., 82 S.C. 181, 193, 63 S.E. 884, 890 (1908). However, entities that create water impoundments argue that they own the water behind their dam.

Eastern (Riparian) Common Law To constitute a reasonable use, the use must not cause harm to downstream users via unreasonable pollution or unreasonably decreased flow. Off-tract-uses per se unreasonable under common law. Prohibition routinely ignored by municipalities and other public water suppliers, e.g. City of Columbia.

Riparian law does not prioritize the water right. New water users compete on an equal footing with older water users. Can lead to a “tragedy of the commons” that potentially depletes the common resource because there are no quantifiable limits on use nor incentives to conserve. Allocation of water through judicial decisions: – Is slow – Is expensive – Is retrospective rather than prospective and – Fails to consider the common good regarding water use.

Rocky Mount’s water reservoir September 2007 Lake Michie, Durham County October 2007 Falls Lake December 2007 Little River, Durham County October 2007 Fact 1: We are running out of water Unless precipitation increases (unlikely) and/or storage increases (hard), and increased evaporative loss is insignificant (worrisome given climate trends), we face more of this in the future, and more frequently.

Belmont public water supply intake The Catawba River supplies water to more than 50 cities, counties and industries. They depend on adequate water levels in the river and its lakes in order to provide drinking water and process water for manufacturing. Lake Wylie - Belmont, NC

Rainfall Amounts Fact 2: Relatively, there is plenty of rain, but …

Annual Use as Percent of Rainfall Charlotte Area Fact 3: We use over 100% of the rainfall in this area.

Water consumption in the Southeast grew 15% from 1990 to 2000, compared with 2% nationwide. The population rose by 20% from 1990 to 2000 vs.13% in the rest of the country. By 2030, daily water use in NC will increase by 35%. Projected growth in the Southeast from 1990 to the near future. US EPA Fact 4: Growth and water consumption in the Southeast are expected to continue to increase.

Fact 5: Most of our growth in in the Southeast is in areas lacking water storage A huge percentage of the South’s population, growth and economic prospects lies in the piedmont a region with good average precipitation, but small streams and low yields from groundwater. Result: low resilience; high susceptibility to drought; almost certain escalation in conflict over water unless growth stops.

Concord Kannapolis Fact 6: TheYadkin-Pee Dee basin has almost twice the natural surface water supply per person as the Catawba.

Charlotte Mooresville Statesville Fact 7: Many large cities in this area straddle two basins and thus transfer water from one basin to the other.

Goose Creek Six Mile Creek Carolina heelsplitter: Endangered Species of Freshwater Mussel Yadkin Catawba

? Fact 8: Conflict will increase. Water consumption in NC

Recent conflict over water quantity in NC Va Beach transfer from Roanoke Central coastal plain CUA Cone of depression in lower Cape Fear Eno voluntary CUA Land use issues around proposed Little River reservoir Litigation over IBT to Concord/Kannapolis Litigation over releases from Randleman Lake Fight over new Boone intake Intake and allocation disputes at Lake Jordan Fight over Alcoa dams on Yadkin Concern about Atlanta’s water needs Disagreements over Kerr water supply Concern about inflows and intakes around Falls Lake 401 cert. litigation on Yadkin/Pee Dee Progress dams TVA lake level issues

Fact 9: IBTs are only one part of the problem Net Use of Water in the Catawba Basin Power plant Cooling 48% Industrial 2% Public Water Supply 32% Agricultural 18% 2007 Data from Duke Power

The Catawba and Wateree Rivers

Facts about the Catawba 1.The Catawba River is a source of drinking water for about 1.7 million people. 2.The Catawba River and its tributaries are used for recreation by hundreds of thousands of people. 3.The health of the Catawba is critical to the ecology and economy of the area. 4.Many businesses depend on water from the Catawba. 5.Most religions believe that there is a moral imperative to be good stewards of God’s creation. 6.It makes economic sense to protect our water.

… but the Catawba River is threatened: 1.The Catawba River was designated as the most endangered river in the U.S. in 2008 and it was designated as one of the 10 most endangered places in the South in acres per day was developed in the region from 1998 to Four out of the top 44 highest hazard coal ash ponds in the U.S. are on the Catawba River. 4.Many sections of the watershed, including “pristine” sections, are impaired. There are more impaired waters than in the past. 5.There are fish advisories for PCBs and mercury in NC and SC.

Why should we care about IBTs? Aggravates Drought Conditions. Favors growth in the receiving basin at the expense of the source basin. Fuels sprawl. Threatens environment, including numerous aquatic species.

Why should we care about IBTs? Decrease in quantity increases concentrations of pollutants discharged to the source water. Increased reliance on one source (e.g., Mtn. Island Lake) increases susceptibility to disruptions to supply

Why should we care about IBTs? Can lead to saltwater intrusion problems and other unintended consequences downstream.

What is the solution? Better Science – Establish baseline ecological flows. – Determine how much water is currently being used, where it is taken out, where it is returned, and how much is returned. – Develop better models. Price incentives for conservation and wise water use. Legal system that treats water as a scarce resource. All water uses need to be on the table. No use should be exempt.

What are the significant aspects the settlements in the Concord-Kannapolis cases? Limits on withdrawals from the Catawba. Must get water from the Yadkin basin first. In times of drought, must take greater cuts. Must implement water conservation incentives and practices. Independent verification and oversight. Settlement between NC & SC – Increases role to Bi-State Commission. – Limits ability of states to roll-back prior IBT and water management legislation.