A judge heard opening statements and began reviewing evidence Monday in a hearing to determine the fate of a controversial water discharge arrangement involving western Wake County towns and downstream communities.
In March 2015, the state’s Environmental Management Commission allowed Cary, Apex and Morrisville to modify a 2001 agreement, known as an interbasin transfer, that allowed those towns to return 24 million gallons of water per day to the Neuse River Basin that originally had been drawn from the Cape Fear River basin. Jordan Lake, a major source of drinking water, lies in the Cape Fear River Basin.
The 2015 modification increased that number to 33 million gallons per day, a 38-percent increase that the Fayetteville Public Works Commission has said puts the water supply at risk for users downriver, including the City of Fayetteville. Of that, 31 million gallons per day are now allowed to be returned into the Neuse basin.
The Fayetteville Public Works Commission filed a legal challenge in May 2015 against the Department of Environmental Quality and the EMC, which approved the increase.
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Lawyer Keith Kapp, representing Fayetteville and its water utility, told Judge Donald Overby on Monday that the PWC’s assessment of potential detriments was not consistent with what he said were more stringent standards used to issue the original certificate in 2001.
“The rush to decision without looking at the big picture has been to the great harm of folks south of Cary on the Cape Fear River,” Kapp said.
The Environmental Management Commission, represented by lawyers from the Attorney General’s Office, laid out its argument that the approval does not substantially affect water availability downstream in the southeastern portion of the state.
Lawyer Benne Hutson, speaking on behalf of Cary and Apex, added that the increase was necessary and justified by the need to meet growing demand.
Lawyers for the petitioners called three witnesses Monday, beginning with Mick Noland, chief operations officer of water resources for the Fayetteville PWC. Noland testified that the models used to determine the adequacy of water supply in the case of the modification were not done according to his definition of standard practice, which takes a more conservative approach to assessing supply in drought conditions.
He also said the public hearing held before the approval for the increase, which took place during a three-week period around the Christmas and New Year holidays in late 2014 and early 2015, was conducted too hastily.
“One of our most serious concerns was the state had indicated we would have a Cape Fear basin water availability study completed in conjunction with issuing an IBT certificate,” Noland said. “That water supply plan was not available for review at the time public hearings were held, nor before the close of hearings on the environmental assessments.”
Noland said the cost of an alternative proposal that would have used the newly built $300 million wastewater plant in New Hill to return more water to the Cape Fear basin had been overstated. Many of the infrastructural improvements considered part of that alternative’s higher cost were going to be built and paid for either way, he said. As a result, Noland testified he did not believe the terms of the approved increase mitigated the impacts of the transfer “to the maximum degree practicable,” as state statute requires.
Hutson and Assistant Attorney General Phillip Reynolds attempted to establish through cross-examination that the state had followed the correct public hearing protocols. They also implied that they thought Noland’s objection to the supply model didn’t necessarily prove Fayetteville would be harmed.
Wilmington Mayor Bill Saffo and Don Betz, executive director of the Lower Cape Fear Water and Sewer Authority, also testified in the afternoon session. Both decried the 2015 modification’s lack of a return requirement, which they said set a dangerous precedent should other municipalities ask to draw from the basin.
“If they had said, ‘We’re willing to let you take the water out, but you have to put it back in,’ it would have been fine,” Saffo said. “No one down there would have had a problem with it.”
They said that could threaten the area’s ability to provide water service on peak days as the populations of New Hanover and Brunswick counties continue to grow.
The hearing is expected to last the rest of the week.
Gargan: 919-460-2604; @hgargan