See you in court

With no common ground found at a last-minute open meeting on June 28, the Asheville/Buncombe water dispute appeared headed to court.

The Asheville City Council and the Buncombe County commissioners spent more than an hour discussing water issues before heading off to separate meetings to pass their respective budgets for the 2005-06 fiscal year (which began July 1). The next day, the N.C. General Assembly approved Sullivan II and III. Among other things, the two laws prohibit Asheville from charging non-city residents more for water and stipulate that Asheville must supply water to county residents if it has excess capacity. As rewritten, the laws also specifically prohibit the city from demanding annexation in exchange for connection to the water system. And on June 30, the 1981 Water Agreement expired.

In effect, these bills negate two of the main advantages Asheville thought it would gain by pulling out of the Water Agreement, while preserving none of the tax-equity advantages the city formerly enjoyed. What’s more, Sullivan III specifically states, “This act applies only to the city of Asheville” — not to any other North Carolina city. The laws also state that Buncombe County must maintain the lines it owns, though what this means appears to be a matter of interpretation.

At the June 28 meeting, the Buncombe County commissioners restated their preference for an independent water authority. But they also indicated their willingness to support a prior proposal by Council member Joe Dunn that would allow the city to retain ownership of the system without a water authority setting policy but would prohibit rate differentials and require Asheville to provide water “to anyone who requests it” without forcing the “user to annex into Asheville” according to the wording of a letter the commissioners sent Mayor Charles Worley on June 23. (The city could, however, use other tools employed by North Carolina municipalities to annex developments adjacent to the city limits, in accordance with state law.)

No other Council member expressed support for Dunn’s plan, however. Instead, they stressed the importance of rate differentials to offset the higher cost of service in lower-density areas outside the city and to provide some relief for city residents, whom various Council members have said pay the highest rates in the state. Vice Mayor Carl Mumpower went so far as to assert that Dunn’s plan amounted to “surrender,” likening it to taking away a homeowner’s right to rent his or her home or have a say in who can enter it.

Council Member Terry Bellamy, meanwhile, wanted the negotiations to address the recreational facilities that were part of the Water Agreement. In particular, she asked if the county would agree to retain responsibility for maintaining facilities such as the WNC Nature Center and Recreation Park, noting, “The public doesn’t understand why the recreational facilities are in [the Water Agreement].” Council member Brownie Newman followed suit, arguing that making some headway on the peripheral issues might illuminate a path toward resolving the central water standoff.

But Commissioner Bill Stanley dismissed the idea. When the city moved to pull out of the Water Agreement a year ago, it knew that it would have to shoulder responsibility for the recreational facilities, he said.

And although several City Council members urged the commissioners to come back later that night or the next day to continue the negotiations, Commissioner David Young argued that the elected officials had other things to do with their time, advising them to leave the nitty-gritty of negotiations to staff. “We’ve got two professional managers,” he said.

Mayor Worley, meanwhile, urged the commissioners to extend the negotiating period by asking state legislators to delay action on the Sullivan acts, which were slated for a vote the next day. And Newman said he would support extending the existing Water Agreement for a year if the Senate held off on passing the bills.

But the commissioners would have none of it. “We can’t say ‘stop the bills,'” said Young. “But they could be repealed.”

At one point, Newman asked the commissioners to clarify how they understood a clause in Sullivan III, which reads, “It shall be the duty of the Board of Commissioners of Buncombe County … to maintain the waterlines owned by the County of Buncombe and such water districts in proper repair in order that there may not be a waste of water by leakage.”

Asheville had been arguing for some time that at this point, the county owns only a small number of the original mains built by the old water districts in the 1920s that have never been replaced. But Newman pressed the commissioners, wanting to know if they interpreted the wording to mean the county would be responsible for maintaining “all the lines outside the city of Asheville.” One and all, the commissioners either responded affirmatively or nodded their heads.

For the city, the county’s interpretation may represent a silver lining of sorts in the cloud posed by the Sullivan acts. Because if Asheville doesn’t have to pay for maintenance, the city could reap major savings — even without rate differentials.

[Jonathan Barnard covers water issues for Xpress.]