N.C. Supreme Court rules taking of Asheville water system unconstitutional

Sustainability expert Doug Bruggeman is proposing an investment strategy to protect multiple watersheds in WNC.
PROTECTING THE SOURCE: A view of Asheville's North Fork Reservoir, which is protected by 15,000 acres of city-owned land in the surrounding watershed. Photo by Tracy Rose

A 60-page decision issued this morning by North Carolina’s highest court reversed an earlier, unanimous Appellate Court ruling and awarded ownership and control of Asheville’s water system to the city. The ruling comes as a conclusion to a three-and-a-half year legal dispute between the city of Asheville and its parent state.

In a statement issued to media, Mayor Esther Manheimer lauded the decision and praised the forethought of her predecessors, “Many years ago, our city leadership made the bold and wise investment in a watershed and water infrastructure that provided the foundation for the robust water system we have today … 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.”

The May 2013, House Bill 488, entitled “An Act to Promote the Provision of Regional Water and Sewer Services by Transferring Ownership and Operation of Certain Public Water and Sewer Systems to a Metropolitan Water and Sewerage District,”  transferred ownership of the municipal water system to the Metropolitan Sewerage District of Buncombe County.

However the Supreme Court’s majority opinion, taking up over 40 pages of the decision, written by Justice Sam Ervin IV points to the constitutional protection of localities’ self-determination in matters of health and sanitation, saying ” In view of our determination that the legislation [dispossessing the city of its water system] constitutes a prohibited ‘[l]ocal . . . act . . . [r]elating to health [and] sanitation’ in violation of Article II, Section 24(1)(a) of the North Carolina Constitution, we reverse the Court of Appeals’ decision.”

The article and section cited in the decision prohibits the General Assembly from enacting any local, private, or special act or resolution relating to any of 14 different prohibited subjects, including health, sanitation and the abatement of nuisances.

The Supreme Court’s final decision reverses an Appellate decision, which had in turn reversed a lower court’s decision that found in favor of Asheville and against the state law. However the reasoning behind decisions changed at each level.

The ruling was not unanimous, the dissenting opinion, penned by Justice Paul M. Newby, which filled out the remainder of the 60 page release from the court, questioned the potential blow this ruling could be toward the state’s plenary power, saying “Now the Court brings uncertainty as to whether there are any lawfully established water or sewer districts in North Carolina.”

In a statement from WNC Save Our Water, local water quality activist Barry Summers lauded the decision, “We hope that this puts to rest the notion that the power of the State should be used in this manner.” But he also urged further action to promote good water systems, “We support and encourage the city of Asheville to reach out to the various political entities of Western North Carolina that have an interest in safe, reliable, locally-controlled drinking water, and [to] find common solutions to whatever areas of friction that may have contributed to this five-year long saga.”

According to a footnote in the court documents, the city’s water system includes: a significant watershed; two impoundments; three water treatment plants; 29 treated water storage reservoirs; 1,661 miles of transmission and distribution lines; at least 40 pump stations; and certain intangible assets, including, but not limited to, approximately 147 trained and certified employees, numerous licenses, wholesale water supply contracts, contracts for the supply of goods and services, and revenue accounts containing more than $2,218,000, “that are held for the purpose of ensuring repayment of outstanding bonded indebtedness.” The system serves 124,ooo customers about a third of whom live outside the city.

The majority opinion notes that while water customers living in Buncombe County are also served by MSD, that organization “has never provided water service to any customer.”

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About Able Allen
Able studied political science and history at Warren Wilson College. He enjoys travel, dance, games, theater, blacksmithing and the great outdoors. Follow me @AbleLAllen

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11 thoughts on “N.C. Supreme Court rules taking of Asheville water system unconstitutional

  1. Huhsure

    Congrats, Barry! And congrats to all who fought to protect our water!

  2. Bob Gunn

    Once again, Barry summers is on the right side, i.e. the people’s side, of an important issue. Thanks for all that you do, Barry.

    • boatrocker

      Wow, between giving H2O back to its rightful ‘owners’, repealing HB2 and showing McCrory the door, maybe it’s not all gloom and doom.
      Ever so slowly, the NCGOP swamp is being drained.

  3. bsummers

    Thank you both. But I’m not really a “water quality advocate”. I’m just a gadfly in these issues. If you want to thank me and our group, thank the real advocates: Clean Water for North Carolina, and Assoc. Director Katie Hicks in particular. We can traipse around in these short-term political fights, but it takes some committed professionals to do the day-to-day work that brings real success. Consider joining or contributing to their work:

    http://www.cwfnc.org

    • luther blissett

      The long-term fight, I suspect, is to establish municipal home rule in the NC constitution, or at very least build upon this precedent to ensure that an anti-city majority in the legislature doesn’t have free rein to rob cities of powers or assets.

  4. NFB

    No time to rest. As I recall Chuck McGrady said some time ago that if the legislature lost in court they would find another way to steal Asheville’s water system. Look for another bill in 2017.

    • luther blissett

      Well, in that case, the campaign to unseat Shady McGrady needs to start today, which includes recruiting a challenger willing to point out how he’s squandered his right to elected office.

  5. The Real World

    This is excellent news. I am all for local control of important resources. NFB is likely right that another swing will be made to wrest control. I will send that organization a check.

  6. ApePeeD

    That was long and bitter. I honestly didn’t think this was going to be ruled in Asheville’s favor.

    • bsummers

      We spent hours Tuesday night drafting a ‘We’ll keep fighting!’ press release, and then wound up not needing it.

      Nobody should forget that two Republicans joined the three Democrats on the bench, to rule this unconstitutional. That 5 – 2 majority should be a caution to anyone who thinks they can just find another way around this.

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