Court Upholds South Carolina Rights to Protect the Catawba and Wateree Rivers

The South Carolina Court of Appeals today ruled in favor of conservation groups and the South Carolina Department of Health and Environmental Control (DHEC) and against Duke Energy Carolinas as it upheld South Carolina’s right to protect the water quality of the Catawba River and the Wateree River.  The Southern Environmental Law Center (SELC) is representing American Rivers and the South Carolina Coastal Conservation League (SCCCL) in the appeal.

“This decision protects South Carolina’s waters and the interests of the people of South Carolina in the water quality of the Catawba River and the Wateree River,” said Frank Holleman, senior attorney for the Southern Environmental Law Center.  “We are thankful that the Court rejected Duke’s argument that South Carolina had lost the right to protect its waters due to a technical snafu.”

On August 8, 2009, in a legal challenge brought by SELC on behalf of the same conservation groups, the DHEC Board ruled that Duke Energy’s proposed license for its Catawba-Wateree hydropower facility would lead to violations of South Carolina’s water quality standards.  Among other things, the conservation groups challenged the low flows of water below several of Duke’s dams, noting that Duke’s proposed operation of its hydroelectric project would cause negative effects on water quality, recreational opportunities, and the fish and other wildlife that live in the River.  The DHEC Board agreed with the conservation groups’ concerns and denied Duke’s application for DHEC’s approval.

Duke challenged the Board’s decision in the South Carolina Administrative Law Court.  Duke convinced the Administrative Law Court that South Carolina had waived its right to protect its waters due to the way DHEC staff calculated the number of days that Duke’s application was pending.  Duke made this argument even though Duke never told the DHEC staff or the DHEC Board that it thought South Carolina and DHEC had waived the right to make a decision.

In the appeal, the South Carolina Court of Appeals agreed with the conservation groups and ruled that South Carolina had not waived its right to protect the Catawba River and the Wateree River.  It thereby rejected Duke’s technical argument and found that DHEC had acted timely.  The ruling means that the DHEC Board decision stands and that Duke’s plans for its Catawba-Wateree hydropower facility cannot proceed.

Gerrit Jobsis, senior director for Regional Conservation for American Rivers, said,  “This is an important decision for protecting and restoring the Catawba-Wateree River.  The Court has upheld South Carolina’s right to protect these important rivers.”

Dana Beach, executive director of the Coastal Conservation League, said, “This is a significant decision for South Carolina and for our natural resources.  It is important that we protect our rivers and specifically that we ensure the necessary flows for the health of the Catawba and the Wateree.”