Interbasin Transfer Agreement Reached

Thursday, January 18, 2018
Fayetteville Prevails in Quest to Protect Future Water Supply; Agreement Reached in Interbasin Transfer Decision

After two-and-a-half years of litigation, PWC and the City of Fayetteville have prevailed in securing Fayetteville and other downstream users of the Cape Fear River Basin a guaranteed return of water to the Basin from upstream municipalities who use the water.

On Thursday afternoon, Superior Court Judge Richard Doughton approved an agreement that settled the on-going Interbasin Transfer case that began in 2015. The parties involved-PWC, the City of Fayetteville and other downstream users of the Cape Fear River over the past few months successfully reached an agreement with the Towns of Cary and Apex and with the North Carolina Environmental Management Commission (EMC) and the North Carolina Department of Environmental Quality (DEQ).

Through the agreement, the EMC  would re-insert a return flow requirement into the 2015 interbasin transfer certificate, and the Towns of Cary and Apex would submit compliance and monitoring plans to the Division of Water Resources  (DWR) to ensure the required amount of water was being returned.

With the decision, residents within the Cape Fear River Basin downstream of the Towns of Cary and Apex are guaranteed water for residential use and economic growth.

“I would like to commend PWC, City of Fayetteville and the other plaintiffs for their commitment to the protection of our most valuable asset, clean drinking water,” said Mitch Colvin, Mayor of the City of Fayetteville.  “This issue has a significant impact our community’s future and I am glad we were able to work out an amicable solution that ensures the needs of our City and our citizens are met for years to come.”

The interbasin transfer dispute began in March 2015,  when the Towns of Cary and Apex, Morrisville and Research Triangle Park South portion of Wake County received an interbasin transfer certificate from the EMC,  a division of the NC DEQ.  The certificate  allowed them to transfer up to 31 million gallons of water per day from the Haw River Basin to the Neuse River Basin and 2 million gallons of water per day from the Haw River Basin to the Cape Fear River Basin.  The 2015 certificate was a modification to a 2001 interbasin transfer certificate issued to the same municipalities.  However, the 2001 certificate contained a required return of water to the Haw and Cape Fear River Basins.  Not only did the 2015 certificate increase the amount of water the municipalities could transfer for their own use, but it neglected to include any return of water to the Haw or Cape Fear River Basins.

As a result of this oversight and  and to ensure Fayetteville and other downstream users would have an 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 joined with Fayetteville and the PWC in December of 2015.

The lawsuit was heard by Administrative Law Judge Donald Overby from June 13-21, 2016.  In  February 2017, he ruled in favor of the PWC, City of Fayetteville, Lower Cape Fear Water and Sewer Authority and the Town of Eastover.  The Court ruled that the NC DEQ and EMC substantially prejudiced the rights of downstream 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 interbasin transfer certificate. The Court also required the 2015 interbasin transfer certificate to be re-issued with a return flow requirement (as was contained in the 2001 certificate), to ensure water is returned to the Cape Fear River Basin.  Fayetteville PWC, led by Chief Operating Officer Mick Noland, and other downstream users of the Cape Fear River Basin, overwhelmingly prevailed.

“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 Wade Fowler, PWC Chairman.  “The Commission and our staff have been diligent in this commitment and will continue to work hard to ensure Fayetteville’s interests are always considered in such important  decisions.”

The losing parties appealed the Court’s ruling to Cumberland County Superior Court on March 9, 2017.  Superior Court Judge Richard Doughton was scheduled to hear the parties’ arguments on appeal on January 17 and 18, 2018.  However,  representatives for the involved parties were able to successfully negotiate the approved agreement which settled the case.

NC Representative Elmer Floyd and Cumberland County Commissioner Glenn Adams were among the  local officials present Thursday as the agreement was approved.

Floyd stated he was very pleased with the settlement.  “It was a longtime coming,” said Floyd.

“I would like to thank PWC and especially Mick Noland, for all their efforts in this critical case,” said Adams.  “With water issues on the forefront in the region and our state, we have to be forever vigilant to protect our Cape Fear River.”

Former PWC Commissioner and current District Court Judge Lou Olivera echoed the sentiments.  “I’m proud PWC could help secure our region’s future water supply,”  said Olivera.  “This is not only a local issue but could have a national impact as well as we provide water to our Ft. Bragg neighbors.

IBT Settlement- Consent Judgement