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The Next War Between The States Could Be Over Clean Water



Champion International's paper mill in Canton, N. C., has financed hopes and dreams in the hamlet at the foot of the Smokies for most of this century. Today, some 2,000 workers depend on its $100 million annual payroll. The mill, in turn, relies on the waters of the Pigeon River, which winds through Canton on its way to Tennessee.

But a cloud hangs over the mill. The people of eastern Tennessee, 26 miles downstream, don't like what has happened to their river. With the help of the Environmental Protection Agency, they're fighting Champion International Corp. and North Carolina. They want Champion to clean up its act, to rid the river of what one opponent calls "the stench of rotten eggs," and to restore its color from the present coffee brown.

How to resolve such interstate squabbles will be decided in a case the Supreme Court is scheduled to hear on Dec. 11. That case, involving a Fayetteville (Ark.) waste-water-treatment plant, pits industry against the environmentalists, state against state, and the federal government against the states. The outcome could seal the fate of the Canton mill, which will have to close if Champion has to meet the tough standards. "The real issues revolve around socioeconomic decision-making and who should have the authority to reach the final decisions," says J. Jeffrey McNealey, a lawyer for Champion.

In the Fayetteville case, the city wants to continue to operate a new $40 million water-treatment plant. But the White River of Arkansas can't handle the plant's 6.1 million-gallon daily outflow, so Arkansas has won EPA approval to dump half the waste into the Illinois River, which reaches Oklahoma 39 miles downstream. Sooners, however, want the clear, spring-fed river maintained as a scenic waterway for fishing, canoeing, and wildlife. "It used to be crystal-clear," complains Jim Wilcoxen, general counsel of the Cherokee Nation, a 125,000-member tribe living near the Illinois. "Now, it has a lot of algae."

The U. S. Court of Appeals in Denver upheld Oklahoma's position. The court said that under the Clean Water Act, the EPA must apply higher water-quality standards in such conflicts. The decision will likely set off "a tidal wave of regional warfare between the states," warns David Norrell, a lawyer for Arkansas. It also has triggered a chorus of criticism from rural states and such interests as the timber, farming, mining, and cattle industries. "There is nothing more sacred, vital, and essential than a Western state's right to control its own resources," says the conservative Mountain States Legal Fund in a brief on behalf of numerous business interests. Also voicing concern are cities and counties, which plan to spend more than $100 billion by the end of the decade to comply with Clean Water Act deadlines.

BALANCING ACT. The EPA, meantime, argues that the Clean Water Act makes it the judge in interstate disputes. "Oklahoma may choose to protect its scenic river by barring all discharges," the agency told the high court. "But it is another question whether such a policy may be imposed by Oklahoma on Arkansas" (table).

If upheld, the appeals court ruling could lead to an overhaul of the Clean Water Act. Congress is beginning the long process of renewing the act, and one Senate proposal calls for stricter regulation of interstate waters. "Congress is still not satisfied with the level of protection given pristine waters," says Natural Resources Defense Council lawyer Jessica Landman. But, says Champion attorney McNealey, "there has to be some sort of balancing act."

It's an act the courts often have trouble pulling off. Bob Seay, co-founder of the Dead Pigeon River Council in Tennessee, an environmental group, fears that the balance has already tipped against the river. "It's an industrial sewer," he says. In western North Carolina, the townspeople of Canton fear the economic disaster that awaits them if the mill closes. About the only thing certain about this Supreme Court decision is that the issue is likely to land right back on Congress' doorstep.


-- Should the stricter water-quality standards of a downstream state, in this

case Oklahoma, govern whether an upstream wastewater-treatment plant, in this

case along the Illinois River in Arkansas, be granted an operating permit?

-- Did the federal Environmental Protection Agency give adequate weight to

Oklahoma's interests in issuing the Arkansas plant's operating permit?

DATA: BWTim Smart in Washington

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