The city of Fayetteville and its Public Works Commission have won an important public water rights victory. Superior Court Judge Richard Doughton approved an agreement Jan. 17 that settled an ongoing inter-river-basin water transfer dispute that had its origin in 2001. It came to a head in 2015 when the towns of Cary, Apex, Morrisville and Research Triangle Park, along with the southern portion of Wake County, were granted a revised interbasin transfer certificate from the North Carolina Environmental Management Commission.
The certificate allows them to transfer up to 31 million gallons of water a day from the Haw River Basin to the Neuse River Basin and 2 million gallons of water per day from the Cape Fear River Basin to the Neuse. The 2015 decision was a significant modification of the 17-year-old certificate of understanding issued to the same municipalities. The late state Sen. Lura S. Talley, D-Cumberland, helped craft the 2001 agreement requiring the return of water to the Cape Fear and Haw River Basins. The 2015 state certificate authorized an increase in the amount of water the municipalities could take from the Cape Fear and Haw Rivers, but it did not require the towns to return the water as the original agreement had.
To ensure Fayetteville and other downriver users would have adequate water supply to meet the needs of their citizens, PWC and the city of Fayetteville filed suit in May 2015, challenging the decision by the EMC to issue the 2015 certificate without a required return flow condition. The Lower Cape Fear Water and Sewer Authority and the town of Eastover later joined the suit as co-plaintiffs.
“One of the Commission’s most important roles is ensuring a safe and plentiful water supply for our customers and the citizens of our community,” said PWC Chairman Wade Fowler.
A year ago, the court ruled that the North Carolina Department of Environment and Natural Resource and the North Carolina EMC substantially deprived downriver users and exceeded their authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily and capriciously and failed to act as required by law or rule upon issuing the 2015 inter-basin transfer certificate. Fayetteville PWC, led by chief operating officer Mick Noland, and other municipalities along the Cape Fear River Basin, overwhelmingly prevailed. The losing parties appealed the court’s decision to Cumberland County Superior Court March 9, 2017.
Since then, representatives of the involved parties were able to successfully negotiate the approved agreement, which settled the case. This month, the plaintiffs reached an accord with the towns of Cary and Apex, along with the North Carolina EMC and the state Department of Environmental Quality. The EMC now mandates a return flow requirement in the revised inter-basin transfer contract.
“I’m proud PWC could help secure our region’s future water supply,” said District Court Judge Lou Olivera, a former PWC commissioner.
The towns of Cary and Apex are required to submit compliance and monitoring plans to the Division of Water Resources to ensure the required amount of water is being returned.
“I would like to commend PWC, the city of Fayetteville and the other plaintiffs for their commitment to the protection of our most important asset – clean drinking water,” said Fayetteville Mayor Mitch Colvin.