We’ve been covering on the show lately the story of activists on North Carolina’s Cape Fear River. On Thursday, they took a jonboat up a canal that leads to an old Duke Energy power plant. Their mission was to inspect the canal -- a tributary of the Cape Fear River -- for signs of toxic seeps coming from the coal ash pits along the banks.
The riverkeepers were confronted by a deputy from the Chatham County Sheriff’s Department, who checked their IDs and told them to go back downstream.
Peter Harrison, attorney for the Waterkeeper Alliance: Have we done something wrong?Deputy: No, I'm just checking your IDs, man. Y'all coming up here, This is all for the power plant. This is all the power plant's property.Harrison: Including the water that we're boating on?Deputy: I'm pretty sure. I can get Wildlife out here. They'll scratch you a ticket. I'm not going to scratch you a ticket for nothing. I'm just going to check your ID and let y'all go ahead and go down there and tell you not to come back.
Those activists were following up on a discovery they’d made a few days prior, when they flew over the Cape Fear River plant and saw Duke Energy pumping water from the coal ash dumps directly into the canal. After they showed the world what they’d seen, North Carolina regulators went back to the plant and inspected the pumping operation. Yesterday, they issued a notice of violation to Duke Energy, saying the company had pumped as much as 61 million gallons of wastewater from those ponds into the canal since September – an amount the state says “far exceeded what would reasonably be considered routine maintenance.”
Also yesterday afternoon, the state announced that Duke Energy had reported the appearance of a crack in an earthen dam that holds the coal ash impoundment in place.
Given what North Carolina and Virginia have seen recently along the Dan River, the prospect of another coal ash pit running away downstream is unsettling. It’s the kind of warning sign that riverkeepers are looking for, and part of why they argued for the right to travel along that canal.
After they were turned back by the sheriff’s deputy, a friend of the Waterkeeper Alliance, attorney Bob Epting, wrote to the sheriff and told him that in his reading of the law, the canal is a public waterway. He said the question might best be settled by the courts:
In the meantime, please understand that, with all due respect, you and your deputies have no authority to order citizens to leave and not to return to use, enjoy, or navigate the waters of the State. It is the business of Judges to resolve such issues, after proceedings affording all the parties due process of law, to enter appropriate findings, conclusions and Orders.Neither Deputies of the Sheriff’s Department, nor even the Sheriff himself, are vested with judicial authority, and you all should take care to refrain from and avoid being used by powerful corporate interests to enforce prohibitions that fly in the face of the law of this State and Nation.(Consider what Aunt Bea would say, upon learning at the dinner table that Opie’s science project investigating a fish kill, had been terminated because a deputy threatened to arrest him for trespassing if he came back again to look for the source of the stuff he had actually seen the day before running into their favorite fishing hole. Ask yourself, “WWAD?”)
What Sheriff Richard Webster apparently did was to ask his county attorney for an opinion. He replied to the group:
The deputy dealt with several issues including, “are occupants in a boat, on canal waters, on private property, trespassing”?My deputy having limited information at hand – made a decision that in his opinion harmed neither side and kept the peace.Since then we consulted with Jep Rose – the County Attorney about conflicting interpretations of property rights and water rights.At this point in time with the information currently available, Mr. Rose has advised us to consider the canal waters to be a publicly navigable waterway. Again, thank you for meeting with me this afternoon and I appreciate your friendship and working relationship.
That means the riverkeepers should be free to continue the kind of inspections that have preceded action by North Carolina regulators, this week and in years past. Attorney Epting then drafted a letter thanking Sheriff Webster for his “very prompt action” and “splendid service to the people of Chatham County." Epting told Sheriff Webster he would ask to have that letter distributed as widely as his original complaint.
We've got a call in to Sheriff Webster. If we hear back from him, we'll let you know.