Drawn into the Water Dispute – Again

May 27, 2013 Asheville , City - County Gov. , Leslee Kulba , News Stories 918 Views
Drawn into the Water Dispute – Again

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By Leslee Kulba –

Water rights is becoming a hotter topic, as water becomes increasingly scarce. According to Fredrik Segerfeldt, who performed a study on water privatization for the Swedish think tank Timbro, “Every year, more than a billion people contract water-related diseases. At any given time, close to half of the urban population of Africa, Asia, and Latin America are suffering from one or more of the main diseases associated with inadequate water and sanitation provision.” Some places are so impoverished, women and children spend up to six hours a day fetching water.

These people would justifiably laugh or cry when they looked at green Asheville, with its plenteous water, and the lengths to which governing bodies will go to get the water trophy. This article was inspired by well-intended falsehoods partisans in high places continue to repeat. The first is that HB 488 will not cause the City of Asheville to forfeit any hard assets. It has long been claimed that the bulk of the system’s 1660 feet of water lines were laid by developers, but for some reason, contrary to practices of water utilities run in all other places of the country, the developers failed to dedicate the improvements to the city. Even if that were the case, it is hard to believe the city does not own the three water treatment plants and forty pump stations it operates or the 20,000 acres of pristine watershed up at the North Fork reservoir, real estate so precious it was chosen for the filming of the “Hunger Games.”

Oddly, a decade ago, people now opposed to the state-mandated MSD control were claiming the city did not own the water system because water was essential to life, and therefore was owned by the people. Whereas rights are normally thought of as being endowed by the Creator and rather self-evident; water rights in the United States can be complex, and they vary from region to region. In North Carolina, water ownership is defined much as it is in other eastern states. Under the doctrine of riparian rights, property owners are allowed to make reasonable use of streams on their property so long as they preserve natural flow.

There are a number of laws regulating water rights, but even if the water were owned in commons, the city owns the infrastructure. According to the city’s claim filed against HB 488, “Asheville has complete legal ownership and control of all watershed lands, reservoirs, water treatment plants, storage facilities, and the various transmission and distribution lines comprising the physical assets of the Asheville Water System.”

What’s more, the water system is like a business. According to the claim, the system “includes approximately 147 trained and certified employees, numerous licenses and permits required by state and federal law, wholesale water supply contracts with other municipal entities, operating contracts for the supply of goods and services, and revenue accounts of more than $2,218,000 held for the benefit of outstanding public bonds.” According to Water Resources Director Stephen R. Shoaf, “HB 488 does not provide for the transfer of personnel from the city to MSD, or otherwise make provision for the operation of the water system. As a public enterprise operated pursuant to [law], the Asheville water system is a fully-integrated operation, dependent on its employees, real and personal property and facilities, finances, and administration for efficient operation and delivery of a service . . . .”

In its request for a preliminary injunction and temporary restraining order, the City of Asheville argued HB 488 “is a constitutionally prohibited local or special enactment and otherwise violates certain provisions of the North Carolina and United States constitutions by depriving Asheville alone of its property for a purpose other than a constitutionally-permitted purpose, and by impairing Asheville’s contracts with the holders of outstanding bonds secured by the revenues of its water supply and distribution system.”

The city’s public information officer, Dawa Hitch, confirmed, “Both the watershed and the infrastructure of the water utility are on the city’s books as assets.” This is consistent with arguments leveled when the city elected to dissolve the Regional Water Authority over ten years ago. At the time, the city and county disputed the value of the water system and how it should be assessed. Fair market value, it was said, was useless, because there were no comparables, by far. The city used replacement cost, a practice often used in valuing public utilities, which determines how much it would cost to build the system from scratch. The county, which opposed the city’s takeover at the time, argued such a valuation would grossly overestimate fair compensation for a system of run-down leaky pipes.

It is important to note that the run-down, leaky pipes rotted under the Regional Water Authority established under the 1981 Interlocal Agreement, a group so diverse ungainly it had a reputation of never being able to come to an agreement about repairs and refurbishment. In fact, the City of Asheville claimed as one of the most important reasons for getting out of the agreement a need to make the hard decisions, put up the money, and start fixing the leaks.

Another point of interest is the routine summer droughts Asheville water system users experienced. Raterpayers were told to refrain from washing cars and watering lawns while visitors from California gawked at the resplendent verdure of the terrain. Those water shortage days ended as soon as Asheville took the reins. Another indication of prior mismanagement was the Great Flush, when the whole city had to do without water because hydrants were not being opened on a regular, unobtrusive basis.

Nonetheless, in casual conversations, Asheville continues to be berated for leaving its water lines to leak. It is embarrassing to debunk the misattribution so many times, but once again, upon gaining unilateral decision-making control for the water system, the city promptly floated bonds to not only repair leaky pipes, but to find them in the first place.

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