THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Thursday, October 27, 1994 TAG: 9410270485
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY BETTY MITCHELL GRAY, STAFF WRITER
DATELINE: RALEIGH LENGTH: Medium: 94 lines
Lawyers for the feuding Friends of Hatteras Island and the Cape Hatteras Water Association appeared before the state Court of Appeals on Wednesday in the latest skirmish of a five-year battle over the future of drinking water on Hatteras Island and protection of the state's largest remaining maritime forest.
At stake is a Division of Coastal Management permit that would allow the association to dig nine groundwater wells in the Buxton Woods Coastal Reserve, one of the most well-preserved sections of the Buxton Woods forest.
But lawyers for both sides said in interviews after the hearing that the case has ramifications for other coastal areas as well.
Last fall, Superior Court Judge William K. Griffin rescinded the permit, ruling that the water association's proposed groundwater wells were not a public use of the resource and were not among the appropriate uses for coastal reserves designated in state laws.
The water association appealed that ruling to the Court of Appeals, and the state joined in that appeal.
This is the first test before the state Court of Appeals of laws protecting coastal reserves - state-owned natural areas that also include land in Currituck County north of Corolla and an island off of Beaufort in Carteret County, according to lawyers for the Friends of Hatteras Island.
``It's an extremely important decision and not only for Buxton Woods,'' said Lark Hayes, lawyer with the Southern Environmental Law Center of Chapel Hill. ``That's why we're fighting as hard and as long as we are.''
A decision allowing construction of the wells could ``open the door to all manner of activities'' on reserve lands, she said.
But a decision to uphold Griffin's order could effectively halt most new construction on Hatteras Island, according to lawyers for the water association.
Such a decision would mean ``that we will not produce any more water than we are already producing,'' said lawyer Bobby Outland. ``It will mean there will not be enough water to serve the population of Hatteras Island.''
A unanimous ruling from the court could be decisive. Only in the event of a split decision from the three-judge panel would the loser in the case be granted an automatic appeal before the state Supreme Court.
At issue in the arguments before the appeals court is whether Griffin erred in overturning the Division of Coastal Management permit. Griffin ruled that although the water association is a nonprofit group, the drilling of groundwater wells is prohibited in the area under regulations that restrict activities on coastal reserve property.
``The primary issue is the interpretation of the coastal reserve statute,'' said Robin Smith, a lawyer with the attorney general's office who represents the Division of Coastal Management. ``It has been the state's position throughout the process that the installation of public water supply wells is an appropriate use.''
Griffin's decision, she said, was ``ridiculous and defines legislative will.''Hayes, lawyer for the Friends of Hatteras, disagreed.
``At issue is what sort of management did the legislature intend to be used for coastal reserves,'' she said. That legislation restricts development in these areas and includes ``a carefully crafted exception for education and research projects,'' she said.
Her remarks prompted a question from Judge Clifton E. Johnson.
``Is it the contention of the Friends of Hatteras Island that wells cannot be drilled?'' he asked.
``Under no circumstances,'' said Hayes.
Lawyers for the water association and the state also argued that a Wake County Superior Court judge acted incorrectly when referring the case to Dare County Superior Court. Smith told the Court of Appeals that the case was improperly filed in Wake County and should have been dismissed.
Hayes disagreed with that contention. ``That has no meaning,'' she said.
Environmentalists fear that drilling the nine wells and building roads to service those wells will destroy the environmental integrity of the forest, while members of the water association say the wells are needed to allow the communities on the island to grow.
Residents of Hatteras Island have traditionally received their water from groundwater wells that tap the shallow aquifer beneath Buxton Woods.
The Cape Hatteras Water Association has supplied drinking water to four communities on the southern end of Hatteras Island - Hatteras, Frisco, Buxton and Avon - for about 25 years.
The association currently pumps, on average, 700,000 gallons of water per day to about 3,000 customers. The water is drawn from about 44 groundwater wells that tap the aquifer.
In 1990, the association began rationing the right to tap into the water supply. The battle over Buxton Woods is just one of the battles raging in the region over drinking water for a thirsty coast.
In southeastern Virginia, Virginia Beach is involved in an extended fight with North Carolina over plans to build a pipeline from Lake Gaston, which straddles the North Carolina and Virginia border to provide drinking water to its residents. But people living along the Roanoke River, which flows from Lake Gaston, say the water withdrawals will have severe environmental and economic consequences for communities downstream. by CNB