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  • Jennifer Heywood

Interstate Water – South Carolina v. North Carolina

In 2007 South Carolina filed a motion with the United States Supreme Court seeking leave to file a complaint to apportion the Catawba River. The interstate Catawba River is a relatively small river that originates in the mountains of North Carolina and flows in South Carolina where it flows into the Wateree River. South Carolina became concerns that too much of the river’s water was being diverted for municipal and industrial uses in North Carolina and took the extraordinary step to apportion the river. Only a few month later, the Supreme Court granted leave and both states prepared for what appeared to be a long interstate battle. Shortly thereafter three entities filed motions to intervene: (1) Duke Energy which uses Catawba River water to produce hydropower; (2) Catawba River Water Supply Project (“CRWSP”), which provides water to users in both States; and (3) The City of Charlotte, North Carolina which relies heavily on Catawba River water for its municipal and industrial needs. The appointed Special Master surprise some water attorneys by granting all three motions. Exceptions to the Special Master’s ruling then ensued and a full argument was had before the Supreme Court.

The Supreme Court upheld the Special Master’s ruling with respect to Duke Energy and CRWSP principally because both served interstate customers and neither was a political subdivision of either state. The Court, however, reversed the Special Master’s grant of intervention to the City of Charlotte. Relying heavily on its prior ruling in New Jersey v. New York, 345 U.S. 369, the Court concluded that because the interests of the City were adequately represented by North Carolina, its parens patriae, intervention was not warranted. The case was then remanded to the Special Master for further proceedings.

In a surprising move, the parties settled the case shortly after its remand and moved for its dismissal. Unlike other settlements of interstate water litigation, no apportionment of the river resulted. Rather the settlement appears to be more of a working agreement among the parties. Commentators have suggested that budget constraints on South Carolina caused it to abandon its claims. Whatever the reasons, the short duration and odd conclusion make this interstate river litigation one of the strangest in US history.

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