A judge ruled Tuesday in favor of Fayetteville and other communities downstream of Jordan Lake who said their water supplies were threatened by a state commission’s decision to allow three Wake towns to divert water from the Cape Fear River Basin.
In March 2015, the state’s Environmental Management Commission allowed Cary, Apex and Morrisville to modify a 2001 agreement, known as an inter-basin transfer, that allowed those towns to return 24 million gallons of Cape Fear River Basin water per day to the Neuse River Basin. Jordan Lake, a major source of drinking water, lies in the Cape Fear River Basin.
The 2015 modification increased that number to 31 million gallons per day, a 38 percent increase that Fayetteville’s Public Works Commission has said endangers the water supply for users downriver, including the City of Fayetteville.
Fayetteville’s Public Works Commission filed a legal challenge in May 2015 against the EMC and the Department of Environmental Quality.
The ruling issued Tuesday by Judge Donald Overby, an administrative law judge, requires the commission to reissue the agreement to require larger volumes of water to be discharged into the Cape Fear basin.
Overby’s ruling orders the modified certificate to require that an average of 6.9 million gallons per day be discharged into the Cape Fear basin by 2020, with an increasing schedule of discharges extending through 2045. It includes a provision allowing the required return to be adjusted depending on the actual needs of the rapidly growing western Wake towns.
“We’re very happy with the decision, obviously,” said Carolyn Justice-Hinson, a spokeswoman for PWC. “The biggest thing was the precedent. We know that those areas are only going to grow and need more water. We don’t expect this to be the last time that type of request will be made. Hopefully, this will establish a precedent that will protect everyone moving forward.”
In the June hearing, PWC’s lawyers said the modification processes had been conducted hastily, without allowing affected people and municipalities enough time to review the changes. They said the resulting decrease in discharges posed a long-term threat to water availability on peak use days as the southeastern portion of North Carolina continues to grow.
The state said it had followed industry-standard measurement practices in awarding the certificate and that its models showed the water supplies of downstream communities would not be threatened as a result. Benne Hutson, the lawyer representing the interests of the EMC, Cary and Apex, also cited the prohibitive cost of modifying the newly built Western Wake Regional Water Reclamation Facility to return more water south and east to the Cape Fear basin.
Overby’s ruling found that the Department of Environmental Quality “did not independently verify any information; it did not check for errors.” He said the EMC had used the wrong legal standard in awarding the certificate – and that it had failed to meet the correct one.
The commission had “mitigated detriments to a ‘reasonable degree,’ ” Overby states. But “the proper grounds upon which to grant an (inter-basin transfer) certificate, or a certificate modification ... requires detriments to downstream users be mitigated to the ‘maximum degree practicable.’ ”
Impacts in western Wake
The towns of Cary and Apex co-own a water utility that draws from Jordan Lake. In 2014, they together opened the Western Wake Regional Water Reclamation Facility at a cost of $290 million, which allowed the towns to return some water to the Cape Fear basin. Previously, they had returned none.
“While we’re just beginning our detailed analysis of this complex ruling, we are happy that the court has upheld the interbasin transfer certificate and, in doing so, solidified our ability to be able to continue providing high-quality drinking water,” said Cary Town Manager Sean Stegall in a statement Wednesday, referring to the fact that the judge ordered the transfer certificate to be adjusted rather than voided.
In the 1990s, Cary and Apex decided that Jordan Lake, which was created in the late 1980s in the Cape Fear basin, should be their chief source of drinking water. They hoped it would allow them to grow autonomously. Much of Cary and Apex lies on the other side of a ridge, roughly followed by N.C. 55, in the Neuse basin.
Steve Brown, Cary’s director of water resources, said the town had sought to increase the amount of water it was allowed to draw from the Cape Fear basin in 2015 to service growth in those areas.
Apex’s Town Council held a closed session at its Tuesday meeting to discuss the ruling. Mayor Lance Olive and Town Manager Drew Havens declined to comment on the case, deferring to Cary, which they described as the “lead agency” in most matters concerning the utility.
The ruling could affect the fortunes of Veridea, a 1,000-acre mixed-use development proposed for southern and western Apex. The project’s developers have requested that the town allow Veridea to send as much as 860,000 gallons of wastewater per day east to the Middle Creek Water Reclamation Facility in the Neuse basin as a temporary measure before they build pump stations to send all of the development’s wastewater west to New Hill in the Cape Fear basin.
The town already was hesitant to allow Veridea to eat into its dwindling capacity in the Neuse basin, and the ruling could complicate that decision.
Gargan: 919-829-4807; @hgargan