ConstitutionWater
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U.S. Constitution
The U.S. Constitution is important in regard to water allocation policy in two respects: the extent of the power it gives the federal government through the Commerce Clause, Art. 1, Sec. 8, clause 3, to regulate interstate commerce, including navigation, and the extent of the power it gives the federal government through the Tax and Spending Clause, Art. 1, Sec. 8, clause 1, to raise and spend funds for the general welfare of the country.
In Gibbons v. Ogden (1824), Chief Justice John Marshall ruled that the power to regulate interstate commerce also included the power to regulate interstate navigation. Since then an important and complex body of law on what is "navigable" for federal purposes has evolved. The Commerce Clause is also the basis for the federal government's regulation of threatened and endangered species and wetlands, and these regulatory regimes play an important role in the governance of water.
The Tax and Spending Clause has been important not only with respect to the many massive water projects that the federal government has funded, but also because courts have often (not always) upheld the ability of the federal government to condition spending on the willingness of states and other recipients to enact certain policies (such as environmental protection).
North Carolina Constitution
The North Carolina Constitution has more direct attention to water. Article XIV, section 5 of the North Carolina Constitution provides:
It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open lands, and places of beauty.[1]
The Supreme Court handed down a dramatic decision in the summer of 1998 that in essence declared this section to give direct power to local units of government “to regulate our waters.” Smith Chapel Baptist Church v. City of Durham, 348 N.C. 632, 502 S.E.2d 364, 367 (1998) (Smith Chapel I) (superseded on rehearing). On rehearing, however, a divided N.C. Supreme Court superseded its earlier opinion and struck down the stormwater ordinance in question on different grounds. The final opinion gave no interpretation of art. XIV. Smith Chapel Baptist Church v. Durham, 350 N.C. 822 (1999) (superseding 348 N.C. 632). The legislature got in the final word (perhaps) in the 2000 session by passing a bill that retroactively allowed the stormwater financing mechanism that led to the lawsuits.
Prior to the Smith Chapel case, the only published decision construing art. XIV, sec. 5 was Rohrer v. Credle, 322 N.C. 522 (1988). Credle involved ownership of submerged lands and relied on the constitutional provision just to bolster its argument for public trust rights in those lands. This constitutional provision was also cited in support of the public nature of and county’s authority to charge special assessments for relocation of a coastal inlet, in Parker v. New Hanover County, 619 S.E.2d 868 (2005).
The ultimate meaning and importance of Article XIV, section 5 remain unclear. Is it a direct constitutional authorization of North Carolina local government action to protect the environment? Until an appellate court determines whether this constitutional language directly authorizes North Carolina local governments to conserve natural resources and protect the environment, local jurisdictions will be left in the environmental arena, as in other areas of their work, needing to find legislative authority for any environmental efforts.
Notes
- ↑ N.C. Const. art. XIV, § 5 (emphasis added).
