Yesterday, June 3rd, city of Asheville attorneys and state attorneys presented to a panel of three North Carolina appellate court judges in Raleigh.
Carolina Pubic Press’ Kirk Ross reports:
Despite a malfunctioning A/C unit and the high-stakes venue, court arguments over the fate of the Asheville water system appeared to be at their coolest and calmest in years, as both sides made their case over The Water Act, as the bill is known. The law — and the lawsuit that followed — is the latest episode in an almost century-long battle over control and direction of the water system.
[…]
I. Faison Hicks, a special deputy attorney general arguing for the state, asserted that since the water system and the city itself are charted by the state, the water system doesn’t belong just to Asheville and its citizens.
“Municipal public water systems belong to the state,” he said.
He also argued that the city would not be harmed in the utility’s transfer because the system would go on as it is, continuing to serve “exactly the same people in exactly the same way.”
Because the city would not have to replace the system, he said, it can’t claim it is a loss.
“The state does not see that as a loss,” he said, “but rather the achievement of a greater good.”
That brought a strong rebuttal from Asheville’s attorney, Dan Clodfelter, who is now the mayor of Charlotte and who was a state senator when the bill was passed.
Clodfelter called the state’s argument that the city doesn’t actually own its water system a “peculiar contention.”
He said the other local governments represented on the new authority set up under the direction of the Water Act would not necessarily run the system in the way the state asserted. It was clear, he said, that Asheville would lose a valuable asset as a result.
Read the full story from the Carolina Public Press
This legal battle between the State of North Carolina and the city of Asheville over the water system will probably
end up before the N.C. Supreme Court for a final verdict. If one side loses, the other will appeal to the higher court
and vice versa. Eventually, this case will have an outcome. The questions is: —then what?
“then what?”
Chuck McGrady made it clear back in December, what happens if the City wins, and the takeover is found to be unconstitutional. He and Tom Apodaca will go back to the drawing board, and try to find a new way to seize Asheville’s infrastructure.
As the City Council race moves forward, I’ll be looking to see if candidates understand who Chuck really is, and what he’s after.
I was there, representing SaveOurWaterWNC.
http://www.saveourwaterwnc.com
The notion that the State owns all municipal infrastructure, no matter who built it, is a dangerous and radical notion. It was surreal to sit there and listen to the State’s Attorney argue this as if it were commonly known, and that Asheville is just making up some “alleged fundamental right” to continue operating the water system they built and own.
The courtroom was packed. People all over the state are watching this – they know that something crazy is being attempted here.
He also argued that the city would not be harmed in the utility’s transfer
That’s not true. There are a number of tangible ways the City could be harmed. For one, because of the fact that the Water Dept. pays the City something like $2 million a year for support services (attorneys, accountants, HR staff, IT staff, building maintenance, etc. etc.) that they need to operate. The City provides all of that, and it only amounts to around 6 percent of the water system annual revenues. That’s not bad for overhead. It will cost water ratepayers more to get those necessary services elsewhere. The study that MSD spent $200,000 on demonstrated that.
Take that $2 million annually away from the City, and it will be a less efficient govt., which hurts local taxpayers.
Everyone knows this isn’t about efficiency, or fairness, or as Kirk Ross put it in that article, “the latest episode in an almost century-long battle over control and direction of the water system.” This is about setting a statewide precedent for the takeover of public infrastructure by a radical legislature that also happens to be in favor of privatization.
So you mean to tell me that stormwater fee is bogus??? The city is not a good steward of the water system dude. Witness to the fact that the break in the main pipe in front of my house was allowed to leak for over 2 weeks. A high pressure leak I might add that probably shed at least 1000 gallons a day. The city is not a good steward of anything and privatizing the system would probably mean those tax payer funded breweries might think twice before sucking down the water. Or even gasp, those hotels sprouting up that you keep rallying against might actually slow down. When a drought hits this area, we are screwed. Everything is depending on the water system TOO MUCH and is overextending itself without thinking of the consequences of an extended dry spell.
Don’t know what you mean about the stormwater fee.
The City is currently doing a good job managing the system. Everyone knows that for some years maintenance was neglected. Mostly during the hard economic years of the 60s and 70s, when it was all they could do to get out from under the Depression Era debt. But for years after that, it was under joint control with the County, who refused to go along with rate increases for improved maintenance. That’s why the City dissolved the Water Authority in 2004 and took back unilateral control. Since then, they’ve put over $40 million in upgrades and maintenance. But it’s going to take years to replace all the aging sections of pipe. Unless you’d agree to some huge rate increases to pay for faster maintenance?
I guarantee you, the system will stay in the same slow state of recovery under MSD authority, as it is under the City.
As for the rest – hotels, beer, drought… none of those situations would be helped by the system being under an MSD board dominated by people outside the City, or under private control. The City’s management of the water system isn’t always perfect, but like the old saying about Democracy: “It’s the worst form of government – except for all the others.”
The water law, according to former Rep. Moffitt, does not mention privatization of the water system
currently managed by the City of Asheville.
Well then, that clearly means it would never happen.
Actually, that’s not correct. After the initial uproar, they inserted a line saying “No privatization”, but significantly, did not define privatization. That left the huge door open for them to say later, “Oh, the law says nothing about public-private partnerships“. Mr. Moffitt played with that word switcheroo on at least one previous occasion, saying that the bond restrictions prevented transferring ownership of the physical assets of the water system to a private company, and therefor privatization was permanently off the table. That statement pretends that he doesn’t know that most PPP arrangements don’t involve transferring direct ownership to a private company. In one scenario, MSD could retain ownership, while transferring every last operational authority to Aqua America, or whoever. And the bond restrictions would never kick in. And he knew that, but tried to persuade us otherwise.
And other games. How hard would it be for them to come back a year or two after passage and remove that line? We’ve seen this GA pull the exact same tricks on fracking etc.
Mr. Moffitt, as a Board member of ALEC, and Chairman of the House PPP committee, as well as multiple statements advocating privatization, was and is clearly in favor of it. IMO, the fact that he never came out and said publicly that his intention was for the eventual privatization of Asheville’s (and other systems statewide), is just a reflection of the fact that his bill would never have gotten passed and he would lose the very next election after saying it.
The first step would be to get control away from the Democratic-controlled municipalities that own and operate the majority of the large water systems in the State, and which would be a hard to sell to accept privatization.
Regarding concerns over future PRIVATIZATION OF ASHEVILLE’S WATER SYSTEM, an article dated April 1, 2013 in @NC Capitol (WRAL.com) addresses this.
The article is entltled: “House votes to take Asheville’s Water System.” Here is an excerpt from that article: “The state House gave tentative approval
Thursday to remove Asheville’s water system from the city’s authority and put it under the governance of a regional board (House Bill 488).
The proposal would set up a Metropolitan District that would be governed by an appointed board. The board would have the power to issue
bonds, determine tax rates, set utility rates and charges, and have right-of-way and easement authority. Primary sponsor, Rep. Tim Moffitt,
R-Buncombe, says, “THE BILL STRICTLY FORBIDS PRIVATIZATION , ONE OF THE CONCERNS OF THE BILL’S OPPONENTS.”
See above. “strictly forbids” is a joke.
And as we all recall, Tim likes his jokes.
“No, we took the Rec Authority away from you because you sued over the water.” “Oh that? That was just a little joke (which I wouldn’t have made had I known there was a camera in the room)”
“No, that drone bill is more than likely not going anywhere.” “OK, you’re right – the drone bill that I co-sponsored was just snuck into the budget and signed into law. I thought you meant that other drone bill that no one has talked about for over a year.”
“We’re looking at privatized toll lanes for interstate highways.”…“I hope we don’t have to go for privatized toll lanes for interstate highways”…. “I have always been adamantly against privatized toll lanes for interstate highways.”
(all quotes paraphrased)
“Primary sponsor, Rep. Tim Moffitt,
R-Buncombe, says, “THE BILL STRICTLY FORBIDS PRIVATIZATION , ONE OF THE CONCERNS OF THE BILL’S OPPONENTS.””
Oh, well, if Tim Moffitt said so….