Our rivers: The latest corporate giveaway

The US Supreme Court keeps on giving and giving. Last week, the Court tossed yet another bone to corporations and dealt another blow to environmentalists. The issue in PPL Montana LLC v Montana was who owns the riverbed beneath 10 hydroelectric dams sitting on three Montana rivers. This may seem like a snoozer, but given the latest grabs for the public’s water by private corporations, it has huge implications for the American people, and especially the people of North Carolina.

Historically, the titles to riverbeds beneath commercially navigable waterways go to state governments upon statehood. Non-navigable riverbed ownership stays with the federal government.

So Who Owns the Rivers?

The central question in the Supreme Court case was whether or not a river should be viewed as navigable in its entirety, or whether it should be looked at section by section. The case stems from a 2003 lawsuit filed by parents of Montana schoolchildren, tired of seeing continued budget cuts to education. The parents’ lawsuit claimed that the riverbeds under and around privately owned hydroelectric dams is state land, subject to use fees paid into a state trust that could be used to provide tens of millions of dollars in funding for public schools. The State of Montana ultimately began charging back rent and sent a bill to PPL Montana for $40 million for the use of the three rivers over several decades. PPL Montana argued that sections of the river were not navigable and therefore don’t belong to the State negating any rents due.

Montana argued that since the majority of the river was routinely used for commerce at statehood, then the entire river should be treated as a navigable river. Their argument was supported by previous Supreme Court rulings including The Montello ruling in 1874. In that case, the Court found Wisconsin‘s Fox River had been navigable in fact in its natural state even though several rapids and falls obstructed the natural flow of the river, necessitating portages. The Court rejected a lower court’s decision against navigability, which was based chiefly on the ground that there were, before the river was improved, obstructions to an unbroken navigation. The Court acknowledged that these obstructions made navigation difficult, but noted that even with these difficulties commerce was successfully carried on.

Justice Anthony Kennedy said in his opinion for the Court that the State Court should have taken a segment-by-segment approach, rather than looking at the three Montana rivers in their entireties. He pointed to an 1891 U.S. Army Corps of Engineers report, produced by PPL, that said the Clark Fork near Thompson Falls “is a mountain torrential stream, full of rocks, rapids and falls ... utterly unnavigable and incapable of being made navigable, except at enormous cost.” To understand the complexity of this, we could look at the mighty Mississippi River. Unfortunately, to the Army Corps of Engineers, when you have a hammer everything looks like a nail. For example, few would argue that the Mississippi is not, and has not always been, a navigable river. The Mississippi has served as a major river of commerce since as early as 900 AD when Native Americans settled along the river. Yet, the US Army Corps of Engineers conducted a study of the Upper Mississippi in 1829, and concluded that it would be “useable 8 months a year” only if channels were blasted through the Des Moines and Rock Island Rapids. Does this mean that the entire upper Mississippi River is not to be viewed as a navigable river, and is up for grabs?

The Supremes Throw The Case Back to the States To Decide

The Court threw the case back down to the State and asked Montana to determine section-by-section which parts of the rivers were navigable at statehood and which were not and then charge rents accordingly.

On the one hand, the US Supreme Court’s decision allows PPl Montana to continue to contest the state’s claim of ownership of the riverbed under its dams and requests for back rent. On the other hand, the ruling seems to leave to the individual States the tasks of determining which segments are State-owned and which are not. The Montana Governor believes that the State will still be able to collect 85 percent of the rents previously charged – some $34 million.

More disturbing however is a sentence or two that Justice Kennedy included – almost as an afterthought – surmising that since the State of Montana had not previously charged rent to the power companies for decades, it was tantamount to acknowledging that the State did not really own the riverbed. This implies the possibility that all over the country, states that have not previously realized they could have been charging rent for the use of the public’s natural resources may have already inadvertently handed them over to squatters. Some states are already scrambling to inventory their natural resource assets and make sure they have claim to them lest private interests try to seize them. North Carolina should do the same, especially in regards to Alcoa's attempt to gain control of the Yadkin River for another 50 years.

The States Get the Final Word – For Now

So, as it currently stands, state courts around the nation should have the final word in determining the scope and proper interpretation of the ownership of public trusts -- the rivers -- within their borders. And, given the U.S. Supreme Court general hostility to environmental principles and fondness for corporate "persons" in recent years, that’s probably not a bad thing.


Well, that's an interesting interpretation

Well, that's an intersting interpretation (yours, not the Supreme Court's). I guess it's out of the question to think that the court was doing its job, not engaging in corporate giveaway. I wrote something on this on Saturday: Who owns the Yadkin River - revisited. Folks who like to go to the source might wish to look at the decision themselves. For instance, you'll notice the decison stated that the Montello case ruled on navigability in a different context. The Montello case was dealing with federal regulation. The PPL Montana case was dealing with riverbed title. As I mentioned, those two concepts, and a third, public trust use of the waters, are three distinct principles.

I don't understand what's so outrageous about saying that some parts of a river are navigable and others aren't, if that's indeed the case. The Supreme Court's decison centered around the "Great Falls" reach of the Upper Missouri. That section of the river, aptly named, contains five cascade-like waterfalls, with rapids between them. The falls are 87' high, 19' high, 48' high, 7' high, and 26' high. It's not rocket science to figure out that that section of the river is not navigable. In the example you gave, if the Des Moines and Rock Island Rapids in the Upper Missippi are not navigable, that certainly would not mean that the entire upper Mississippi is not navigable. It would mean that those sections are not navigable.

BTW, there is a difference in how Montana and North Carolina handle non-navigable rivers. North Carolina has always (going back to Colonial times) practiced the Riparian system of riverbed ownership, when the river is not navigable. Riverbed ownership goes with adjoining land ownership.

I agree that this has repercussions for North Carolina and the Yadkin River. Since there is abundant evidence that the Yadkin River was not navigable in its natural state at the time of statehood, 1789, riverbed ownership remains with the Riparian owners, where it's always been. I know there were some who were virtually salivating at the thought of the State being able to claim the riverbed, and therefore make a lot of money from it. Some might call that greed. Well, you won't be able to take the land from Alcoa under this pretext. Alcoa bought and paid for the land, owns it, and pays property taxes on it (which isn't bad news for the counties). But I think the Supreme Court only gave the application of its ruling back to the states. They didn't say the states could ignore it. You can scream, kick, cry, call the Supreme Court all sorts of names, but you are not going to get those grapes you wanted. They were probably sour, anyway.

Great Post! Don't believe the corporate sock puppets!

This decision was judicial activism a la Citizen's United!

Nobody gets to see the great and powerful David Walker

No way!

No how!

Pay no attention to the man behind the curtain!

Supreme Court decision not valid?

But they're "Supreme".

It must really bite to be a proponent of the state takeover of Alcoa's property. I suspect the Supreme Court meant what it said. So how much taxpayer funds would it be worth to fight for a different outcome in NC than in Montana?

Thought you were going to stand up for truth

RALEIGH – Officials with the N.C. Division of Water Quality today notified Alcoa Power Generating Inc. of the revocation of the company's 401 water quality certification, issued in May 2009 for APGI's Yadkin Hydroelectric Project in Stanly County.

This action is being taken after DWQ officials learned APGI submitted an incorrect application and supporting materials for the 401 water quality certification, in that the company intentionally withheld information on the project’s ability to meet the state's water quality standards for dissolved oxygen. This intentional omission came to light after company e-mails were recently entered into evidence during a hearing before an administrative law judge involving Stanly Countys challenge to the issuance of the 401 water quality certification.

The Yadkin Hydroelectric Project includes High Rock, Tuckertown, Narrows – also known as Badin – and Falls reservoirs. DWQ officials believed at the time the certification was issued that APGI’s application for the certification and supporting documentation provided adequate assurance that the proposed activities would not result in a violation of state water quality standards and discharge guidelines.

One of the issues addressed in the certification was concern about the dissolved oxygen levels below Narrows/Badin Lake and High Rock Lake. Dissolved oxygen is the form of oxygen that is available for support of fish and other aquatic animals.

As currently constructed, the dams pulls water from deep in the lake where dissolved oxygen levels are low and then discharges that water to the river below. As a result, dissolved oxygen levels in the river were not meeting state standards. To remedy this issue, the 401 water quality certification required that turbines at High Rock, Tuckertown, Narrows/Badin and Falls lake dams be modified to improve dissolved oxygen levels downstream of the dams.

“I was disappointed to learn that APGI intentionally withheld information regarding the critical matter of dissolved oxygen,” said Coleen Sullins, director of the Division of Water Quality. “The process of certification relies on applicants submitting accurate and comprehensive information to the division. When they do not, revocation is warranted.”

Following receipt today of the notice of revocation of the water quality certification, APGI officials have 60 days to either surrender the certification and file a new application to correct the errors in information previously submitted or to appeal the revocation before the Office of Administrative Hearings.


Lucychan, you are right on

Lucychan, you are right on point in terms of North Carolina's required response to the Supreme Court's ruling on the Montana river case. Right now, our state needs to revisit its inventory of public natural resources---starting with our rivers.

Our water is becoming more scarce and more valuable as our population is rapidly growing and severe drought periods are becoming part of the norm. The General Assembly's Environmental Review Commission recently reported the we do not have an adequate water supply over the next 30 years. This stark reality makes a proactive approach to our water assets paramount---we must protect our public water supply from privitization.

For those assets where the State can charge user fees, taxpayers need assurance that such revenues are being collected. Not only is it a fiscal responsibility of our government (and we need the money), but now a necessity to preserve our water assets...thanks to Justice Kennedy's afterthought.