Surface Water Issues In Land Use

State of North Carolina Files Lawsuit Over Its Ownership of River Beds

In early August, the State of North Carolina, in behalf of the North Carolina Department of Administration, filed suit against Alcoa Power Generating, Inc. claiming the State’s ownership of  “certain lands submerged beneath the waters of [North Carolina’s] Yadkin River along an approximately 38-mile stretch of that River ….”

The lawsuit, viewable here, is filed in state court.  The State’s release about the lawsuit is viewable here

The history tale is interesting, and is recounted to some degree in the complaint. 

The “present” fight between the State and Alcoa has continued since 2008, when Alcoa applied to the State for a new 50-year license to operate the Yadkin River Project and its dams. That application is on hold, pending Alcoa receiving a water quality certificate from the State. Alcoa initially received the certificate in May 2009, but the certificate was later revoked in 2010 after the Division of Water Resources (then, the “Division of Water Quality”) said Alcoa submitted inaccurate data.

The State denied Alcoa’s second attempt at the water quality certificate because of the “ownership dispute” now at the center of the lawsuit.  

Alcoa has indicated it will seek to remove the lawsuit to federal court, with an Alcoa spokesperson reported as stating, “Ownership of submerged lands is a question of federal law.”

If the State has its way, the sign will read “Not Owned, but certainly Operated by …” 

We will follow this lawsuit.

Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw and “like” us on Facebook here.

1 reply »

  1. Navigability for title purposes is a federal question…however the State ruling on the navigability on this river is very good for Alcoa. In 1859 the NC Supreme court noted “it is certain that the Yadkin river is capable of private ownership and that some parts of the riverbed have been granted to private individuals.” State v. Glen 52 N.C. 321( 1956). The court determined that the owners of the dam across the Yadkin could not have his property taken without just compensation.

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