June 22, 1995
Mr. John Morris Director, Division of Water Resources Department of Environment, Health and Natural Resources 512 North Salisbury Street Raleigh, North Carolina 27604
RE: Advisory Opinion: Ability to Challenge Decisions of the Environmental Management Commission Concerning Interbasin Transfers of Water; N.C.G.S. 150B-23(a) and N.C.G.S. 143215.22I
Dear Mr. Morris:
You have requested guidance from this office concerning the ability of affected downstream users of water, who reside in another state, to participate in the decision-making process of the Environmental Management Commission, or to otherwise challenge its certificates authorizing interbasin transfers of water under N.C.G.S. 143-215.22I.
Pursuant to the requirements of N.C.G.S. 143-215.22I(d) and (e), the Commission must hold a public hearing on any petition for a certificate authorizing transfers of water, above certain amounts as provided in N.C.G.S. 143-215.22I(a). The ability to provide comments at the public hearing is granted to "anyone wishing to submit comments on the proposed water transfer."
N.C.G.S. 143-215.22I(e). This ability is not restricted by any requirement that a person be a resident of North Carolina.
Once the Environmental Management Commission, or its designee if there is one, determines to grant the requested certificate, in whole or in part, or to deny it, current North Carolina law would allow aggrieved persons to seek a contested case hearing before the agency. The North Carolina Administrative Procedure Act, N.C.G.S. 150B-1 et seq., "confers procedural rights and imposes procedural duties, including the right to commence an administrative hearing to resolve disputes between an agency and a person involving the person’s rights, duties or privileges. "Empire Power Company v. NCDEHNR, 337 NC 569, 583 (1994). Aggrieved persons may file a petition for a contested case under N.C.G.S. 150B-23(a). As with public hearing participation, the ability to request a contested case is not restricted by any requirement that a person be a resident of North Carolina. However, the requesting person does have to meet traditional standing requirements. These are clearly set out in Empire Power as follows:
"’Person aggrieved’ means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment, by an administrative decision." N.C.G.S. Section 150B-2(6). Under the predecessor judicial review statute, which did not define the term, the Court gave it an expansive interpretation:
The expression "person aggrieved" has no technical meaning. What it means depends on the circumstances involved. It has been variously defined: "Adversely or injuriously affected; damnified, having a grievance, having suffered a loss or injury, or injured; also having cause for complaint. More specifically the word(s) may be employed meaning adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights."
In re Assessment of Sales Tax, 259 N.C. at 595, 131 S.E.2d at 446 (quoting 3 C.J.S. Aggrieved, at 509 (1973)). Empire Power at 588.
I hope this is responsive to your questions. If you need further information, please feel free to contact me.
Daniel C. Oakley Senior Deputy Attorney General