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After five-year legal battle, NC Supreme Court rules Asheville can keep its water system

The North Fork Reservoir is one source of water for the City of Asheville. The state's highest court ruled in favor of the city, allowing it to maintain control of its water system. [1]

The North Fork Reservoir is one source of water for the City of Asheville. The state’s highest court ruled in favor of the city, allowing it to maintain control of its water system. (Photo: City of Asheville)

If it were whiskey, not water, that flowed from the taps in the City of Asheville, then perhaps the state’s highest court would not had to intervene. But whiskey is for drinking, Mark Twain once said, and “water is for fighting over.”

And fight, Asheville did, in a five-year battle against the state legislature that finally ended today. The North Carolina Supreme Court [2]ruled 5-2 that a state-mandated takeover of the Asheville water system is unconstitutional. Justices Paul Newby and Mark Martin dissented.

Asheville v State of NC_ruling [3]

Asheville will not have to involuntarily surrender its water system — and its many assets, such as 40 pumping stations, 1,600 miles of pipes and 124,000 customers, more than a third of them outside the municipal limits — to a newly created regional  water and sewerage district that essentially punished the city for past disagreements. Had the city lost the court case, it would have had to give up the system — yet receive no payment for it.

“This ruling ensures that Asheville can continue to own this great water system and continue to provide safe drinking water for years into the future,” Asheville Mayor Esther Manheimer [4]said in a prepared statement. “Asheville is committed to continuing to work with our regional partners to ensure all water system customers receive the highest quality service from the City of Asheville.”

Although Asheville and its mountain neighbors have a Hatfield-and-McCoy-like history over water, the most recent tempest began in 2013, the Republican-controlled legislature passed House Bill 488 [5], which stripped Asheville of its water system. It became law without Gov. Pat McCrory’s signature.

HB 488 was sponsored primarily by three Republican lawmakers: State Reps. Tim Moffitt of Buncombe County, who is no longer in office; Nathan Ramsey also of Buncombe, who lost his re-election bid and went to work for the state commerce department; and Chuck McGrady, [7]the only remaining lawmaker on the bill.

McGrady called the bill “good public policy.” He said that in this case, water resources should be organized regionally, by basin, rather than by political boundaries. He compared a regional water system to the area’s regional sewer authority. “This is local power,” McGrady said Tuesday afternoon, as he was driving from Hendersonville to Raleigh for the special session. “The entity we set up here is another forum.”

The courts, though, have largely disagreed. After the bill became law, the city of Asheville sued and won a temporary injunction against its enforcement. A Wake County Superior Court Judge then ruled against the state, which appealed. The Court of Appeals sided with the state; Asheville responded by taking its case to the the NC Supreme Court.

The crux of the case balanced on Article II, Section 24 [8]of the state constitution. Although in many circumstances, the General Assembly can pass local acts that target a specific municipality — it’s common, especially to bring perks to a legislative district —  the constitution lays out 14 situations in which lawmakers can’t.

One of those situations deals with local acts governing “health, sanitation and nuisance abatement.” Water is essential for health and sanitation, the city of Asheville had argued, and thus falls under the list  of local acts that are off-limits to the legislature.

The court agreed, and noted that the law also deprived the city of due process and just compensation for its water system.

Writing for the court’s majority, Justice Sam Ervin IV also wrote that foisting control of the water system from Asheville is “not a valid exerecise of sovereign power of legislative branch of government to take or condemn property for a public use.”

“Nothing in the legislation does anything to explain why the benefits that the GA expects to result from the creation of the metropolitan water and sewerage districts should not be made available to customers of every large municipal water system in North Carolina.”

For the dissent, Justice Newby wrote that the General Assembly “shall provide for the organization of government and fixing of boundaries.” Lawmakers can also endow powers and duties to governmental subdivisions as they “may deem advisable.”

Justice Martin also reasoned that if it’s unlawful to modify a district by a local act, then it was unlawful to establish the same district by a local act. “The legislature can create separate corporate agencies to serve a particular governmental purposes,” Martin wrote.

The water disagreements over rates and service in Asheville, Buncombe County and Henderson County go back more than 80 years. [10]  More recently, in 1981, the three jurisdictions [11] formed a water authority, which, in 2004, Asheville terminated and took control of the system. “Asheville has used water as a weapon against its neighbors,” McGrady, who lives in Hendersonville and represents Henderson County.

Although clearly singling out Asheville, the law could have cracked open the door for legislation usurping what little autonomy local governments have in North Carolina. That’s why the City of Wilson and Brunswick County’s water district both filed amicus briefs, siding with Asheville.

The law also could have shaped how municipalities handle sprawl. Suburban and exurban residents and businesses could pressure lawmakers into passing legislation that would extend water lines into the hinterlands. “It would wrench away a city’s ability to control development,” said Barry Summers of Save Our Water WNC. He suggested that this type of legislation could create a hospitable environment for privatizing what are traditionally public goods, such as water.

The law could also have deterred cities and towns from improving their water systems. “There’s a huge need to invest in infrastructure,” said Katie Hicks, associate director of Clean Water for North Carolina, [12] which has an office in Asheville. “But if there’s a possibility the legislature could seize the assets and transfer them to another entity with no compensation, they may not.”

The specter of the ongoing water disaster in Flint, Mich [13]., has shadowed the recent Asheville lawsuit. In Flint, state emergency managers seized control of the city’s water system. To save money, in 2014, state officials, and some city personnel under their jurisdiction, decided to switch the city’s water source from the Detroit River to the Flint River. But the city’s water treatment plant couldn’t deliver safe drinking water from the polluted river, and as a result, thousands of residents drank water contaminated with lead and Legionella bacteria.

Flint came up during oral arguments before the state Supreme Court in May:

http://pulse.ncpolicywatch.org/wp-content/uploads/2016/12/faison2.mp3 [14]

Associate Justice Robin Hudson: “Are you saying the provision of service of water in an area does not relate to health and sanitation?”
Special Deputy Attorney General Faison Hicks: It depends on what the service is, your Honor. When I think of service, I think of things like billing services. Is my billing accurate? Is it timely. I think about adequate hydrologic pressure in the pipes, irrespective of whether the water’s clean. Water in Flint may not be the cleanest in the world, but it’s a totally separate question.”
Hudson: “But they’re being billed for it as far as we know, aren’t they?”
Hicks: “Yes, your Honor.”

Faison’s arguments didn’t sway the court. In the majority opinion, Ervin wrote, “There is a total absence of any justification for singling out the city’s water system.”