A federal Clean Water Act lawsuit filed by the Southern Environmental Law Center on behalf of local conservation groups will proceed to trial following a June 9 ruling by U.S. District Court Judge Louise W. Flanagan.
The federal lawsuit accompanies a state lawsuit brought against Duke Energy by Cape Fear River Watch, Sierra Club and Waterkeeper Alliance. The organizations claim that coal ash wastewater contaminating Sutton Lake, a state maintained fishery, violates the Clean Water Act.
“If [Sutton Lake] is a water of the state then they are responsible for polluting a water of the state. That’s what we have maintained all along, and they have fought that very hard. This is a big deal because it confirms what we’ve always said, which is, if you dam a creek and a make a lake and then encourage the public to fish there by spending pubic money building boat ramps and fishing piers and stocking it with fish … then it’s a water of the state and you’ve got to take care of it,” said Cape Fear Riverkeeper Kemp Burdette during a June 10 phone interview.
Duke challenged the groups’ suit, arguing a state enforcement action filed by the N.C. Department of Environment and Natural Resources precluded the case from consideration in federal courts.
Flanagan’s ruling allows the case to move forward since the two cases consider different claims, adding that the federal lawsuit should continue considering the U.S. Department of Justice investigation into a possibly improper relationship between the state environmental agency and Duke.
“The court determined Sutton Lake is a public lake, as we know it is because people have been fishing in it ever since it was created. … And yet for years, DENR has not protected that lake from Duke’s coal ash pollution. Now the citizens will take up that cause and go to court and protect the lake,” said Frank Holleman, senior attorney at the law center, during a June 10 phone interview.
DENR Communications Director Drew Elliot confirmed that the agency has historically regulated Sutton Lake as part of Duke’s treatment facility.
The lake was formed in 1972 by Carolina Power & Lights, later acquired by Progress Energy, then Duke Energy, as a source of water to cool the adjacent Sutton Plant’s boilers. Since warm water is discharged back into the lake, temperatures are high enough year-round to sustain largemouth bass fishing during the winter.
The N.C. Wildlife Resources Commission maintains the lake as a public fishery.
Although DENR is not directly involved in the lawsuit, Elliot said the agency is following the case as it considers cleanup needs at the Sutton site.
“We recognize there are some serious problems there, [that] there have been historically and that actions needs to be taken. … It can certainly affect how we regulate and how we address issues at the facility going forward,” Elliot said during a June 13 phone interview.
The district court ruling allows the law center to subpoena Duke documents and question its executives under oath as the case moves forward.
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