Cherry Hill's ban on large-scale data centers gained legal reinforcement this summer when a state appeals court upheld stricter protections for the underground water source that serves much of South Jersey.
A three-judge panel of the New Jersey Appellate Division ruled July 15 that the Pinelands Commission has the authority to impose tighter limits on pumping from the Kirkwood-Cohansey aquifer. The aquifer holds roughly 17 trillion gallons of fresh water and supplies drinking water to about a million people across the region, according to the conservation group Save the Source.
The ruling matters for Cherry Hill because the township council unanimously banned large-scale data centers July 28, citing their enormous water demands. A medium-sized data center consumes about 110 million gallons of water per year for cooling, equivalent to 1,000 households, according to a report Cherry Hill commissioned from planner Christopher N. Dochney of Artheon's Camden office.
What the court decided
Clayton Sand Company filed its appeal Feb. 26, 2024, arguing the Commission overstepped its authority, acted arbitrarily and violated procedural requirements. Winslow Township joined the challenge as a friend of the court. The Pinelands Alliance, an environmental advocacy group, backed the Commission.
The court rejected all three arguments. Pinelands Alliance Policy Director Heidi Yeh wrote in South Jersey Media that judges found the Pinelands Protection Act gives the Commission clear statutory authority over the region's water, that the Commission genuinely engaged with industry comments and that the public had ample opportunity to weigh in.
What the rules change
The Commission unanimously adopted the new standards in December 2023. They tighten water-diversion oversight in several ways, according to the Pinelands Alliance:
- The permitting threshold drops from 100,000 gallons per day to 50,000. Any diversion above that level requires detailed hydrological analysis.
- Groundwater withdrawals are capped at 20% of minimum ecological flow, stricter than the state Department of Environmental Protection's (DEP) 25% standard.
- Water transfers between the aquifer's two major drainage basins are prohibited.
- Regulators must account for all existing withdrawals in a given watershed when reviewing new applications.
The standards cap a decades-long effort. The Commission first set a Kirkwood-Cohansey threshold in 1994. In 2001, lawmakers directed the Commission, the DEP, Rutgers University and federal agencies to study the aquifer, backing the work with $5.5 million. Staff began drafting the current rules in 2019.
Cherry Hill connection
Yeh wrote that Commission staff have effectively ruled out data centers on the western side of the Pinelands because of the aquifer protections. The Pinelands Alliance has called for a statewide three-year moratorium on new data center development.
"This case was never really about one company's diversion permit," Yeh wrote in her Sept. 22 essay. "It was a test of whether the Pinelands Commission's water management authority would hold up under a direct legal challenge. It held."
Cherry Hill Mayor David Fleisher, when the council passed its data center ban July 28, told the Philadelphia Inquirer the township did not want to be "a guinea pig" for the evolving technology.
No further appeal to the New Jersey Supreme Court has been reported.
