Wake County

Legal challenge to Cary, Apex water rights pushed back to April

Jordan Lake
Jordan Lake cliddy@newsobserver.com

The westward growth of Cary and Apex relies heavily on their ability to inexpensively distribute water and then treat and recycle any wastewater produced by new residents and business.

In March 2015, after several months of public meetings and comments, the towns won permission from the N.C. Department of Environment and Natural Resources to use their new, jointly funded sewage plant in New Hill to take more water out of Jordan Lake and the Cape Fear River Basin.

But now they face a legal challenge from Fayetteville, another city with aspirations of growth. The city has contested the permit that will let Apex and Cary take the water without having to return it back downstream.

A court date had been scheduled for this month but both sides recently requested to continue the hearing until mid-April, giving the involved parties more time for mediation to settle the dispute.

The water had been flowing south to Fayetteville and other towns en route to Wilmington. Last year, farmers, environmental activists, business leaders and elected officials downstream joined forces to protest, saying the loss of water could stunt growth in their towns or leave them more susceptible to drought.

But they failed to sway state officials, who said science didn’t back up those claims. A model that state environmental officials used concluded that the “water supply withdrawals will have no significant impact on the downstream flows.”

The City of Fayetteville and the Fayetteville Public Works Commission filed suit against DENR – which has since changed its name to the Department of Environmental Quality – and the state Environmental Management Commission. They are seeking to contest the water ruling with the N.C. Office of Administrative Hearings.

The Office of Administrative Hearings employs judges who hear appeals to legislative or executive branch actions, like decisions over water rights, as a form of checks and balances.

Even though Apex and Cary weren’t originally named in the filings – they didn’t make the decision – the months-long legal dispute has drawn them in. They benefit from the policy, along with Morrisville – which gets its water from Cary – and the Wake County portion of Research Triangle Park.

The two sides are engaged in $195-an-hour mediation, trying to reach a settlement out of court.

In the May 2015 legal filing, Fayetteville officials argue that the state environmental decision-makers “have exceeded their authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously and/or failed to act as required by law or rule.”

Despite the legal proceedings, Apex and Cary officials say they will continue to pull water from Jordan Lake until ordered not to.

“The certificate of modifications has been issued,” said David Hughes, Apex’s public works director. “I’m not an attorney, but I’m assuming the certificate stands until a court says otherwise.”

Former EMC chairman Benne C. Hutson, a Charlotte lawyer who is representing Apex and Cary, declined to comment. A lawyer and a spokesperson for the state also declined to comment.


The target of the appeal is an interbasin transfer, or IBT, certificate that Apex and Cary requested and won after a series of environmental studies and public hearings.

Across the country, towns take water, treat it, send it to local homes and businesses, collect the wastewater, clean it and put it back into a nearby water basin.

Apex and Cary have long had permission to take millions of gallons of water every day from Jordan Lake – water that normally would have flowed south into the Cape Fear River – and instead transfer it into the Neuse River Basin.

The IBT they received in March lets them increase how much water they can take while also only requiring them to send a small portion back into the Cape Fear River.

That allowed the towns to use the new $290 million plant in New Hill, the Western Wake Regional Water Reclamation Facility, for westward growth without having to spend even more money building additional water pumps in the Cape Fear River Basin.

Before the March 2015 ruling, the towns had permission to take 24 million gallons of water per day out of Jordan Lake and send all of it east, instead of continuing the natural southward flow.

Since then, they have been allowed to take 33 million gallons per day and send 31 million gallons east, into the Neuse River Basin, while sending 2 million gallons back south, into the Cape Fear River.

However, Cary and Apex don’t expect to hit the 33 million gallon mark until 2045, according to DEQ documents. The towns said that in 2015 they anticipated using just less than 20 million gallons a day, with that number rising to 26 million gallons in 2025.

The New Hill plant, which is one of several in the two towns, has a daily capacity of 18 million gallons. It faced its own legal challenge several years ago, with New Hill residents winning $500,000 as part of a settlement for them not to challenge the plant’s construction.

New Hill leaders plan to use that money to build a community center. Plans and additional fundraisers are in the works now.

Doran: 919-460-2604; Twitter: @will_doran