Water War Part 1: A Tale of Two Lawsuits

Falls Church City is at war over water.

Unfortunately, the war is not going well.  The outcome is very much in doubt and the consequences of defeat could be severe.  Was this war necessary?  Could it have been avoided?

As is the case in most wars, there are no simple answers to these questions, especially when a war is still raging.  Passions are at their highest and objectivity is virtually impossible.

In this series the Falls Church Times will present a brief account of the war to date, recognizing that this is only a first draft of history and by no means the final word.

An Ongoing Struggle

Last week the Falls Church News-Press published an interview with City Manager Wyatt Shields in which he discussed the lawsuit filed in December 2008 against the City by the Fairfax County Water Authority (FCWA).  In Mr. Shields’ view, “Fairfax Water’s goal is to take over the service area traditionally served by the City.”  Citing the Authority’s open letter to its customers, the city manager charged that Fairfax Water’s stated mission “is to ‘eliminate’ the other water systems providing water service within the county.”

Actually, the January 12 letter references the Authority’s creation in 1957, when more than 20 public and private water systems served the County.  It does not specifically call for the elimination of Falls Church’s current service to Fairfax residents, stating only that Fairfax Water was created “to try eliminate that patchwork [of 20 systems]. . .”

On April 14, Fairfax Water responded to Mr. Shields inteview with a letter to the News-Press denying any hidden agenda, but few would argue that his charge might have some merit, as in both wars and lawsuits the real objectives may be far removed from the ones stated publicly.

Subjective reports from the war room or the courtroom also tend to omit important context.  For example, neither the News-Press nor Mr. Shields mentioned that the City had sued FCWA over water rights in 2007.

Of course that action was no longer news in April 2009 and it was not in the city manager’s interest to refer to it during the interview.  But the current litigation can only be understood as part of an ongoing struggle, whose roots lie deep in the past and whose outcome may have effects far into the future.

How a Small City “Waters” a Large County

Residents of Falls Church often are surprised to learn that their town of 11,000 provides water to a county of over 1 million.  In fact, the City’s system only serves about one-tenth of the County’s population, but it covers some of the most heavily developed parts of Fairfax, including Tyson’s Corner, Dunn Loring, Merrifield, and McLean.  The area extends over 38 square miles, from the Potomac River to the Vienna and Fairfax City lines.

The water is drawn from the Potomac via the Washington Aqueduct, maintained by the US Army Corps of Engineers.  The Aqueduct, which produces an average of 180 million gallons of water per day, has been providing water to the District since 1859 and to Virginia since 1926.

Today Falls Church’s system serves 120,000 customers, but when it began the number was much lower. Only 75,000 people lived in Fairfax County when the system started providing it with water in 1947.  Just a fraction of the residents were hooked in since much of Fairfax was still rural, but a tradition was established which continued until 1959.  That year Falls Church and Fairfax agreed to establish formal boundaries between the City’s system and that of the newly established Fairfax Water Authority.  The agreement permitted the City to sell its water to the County at cost, not for profit.

The agreement expired in 1989 and neither jurisdiction sought to renew it.  By then both systems were fully built out and both parties apparently assumed that a formal agreement was no longer necessary.  No one expected a “water war” in the coming millennium.

However, much had changed in Northern Virginia between the 1950s and the 1980s especially in the areas of Fairfax served by Falls Church.  The extension of the Orange Line to Vienna would prove a boon to the County, but the development it encouraged eventually would lead to war.

“A Very Hostile Act”

In the current decade the area around the Dunn Loring Metro station has become a magnet for developers.  These parcels are served by Falls Church, but Fairfax water transmission lines run north-south on both sides of the station.

On February 22, 2007, the News-Press reported that Fairfax Water had indicated its intention to encroach on Falls Church’s territory as early as November 2005 and had stopped forwarding developers’ re-zoning requests for arranging water services to Falls Church in November 2006.  In January 2007 FCWA approached Trammel-Crow, a developer intent on building an office complex in Merrifield, and offered to provide water service in a parcel traditionally served by Falls Church.

Faced with this incursion and Fairfax’s earlier decision to cease “cooperative contact,” Falls Church City Council met in closed session and voted to sue FCWA in federal court.  Of the five members currently on the Council, only David Snyder is on record as opposing the action.

The News-Press’ coverage was enthusiastic.  The paper’s lead story on February 28 proclaimed “Mouse Roars: Tiny FC Sues Mighty Fairfax County on Water.” Mayor Robin Gardner was quoted as calling Fairfax’s conduct “A very hostile act.  Their policy change [to stop forwarding re-zoning requests in 2006] came suddenly and we were not notified in advance.”  The mayor further stated that Fairfax County Executive Gerry Connolly had recently confirmed the change to her in a telephone conversation

An accompanying News-Press editorial entitled “Water War” endorsed the decision to sue, concluding that the City had no choice and construing the “move by the county as a taking, as a grab, whether for political or fiscal reasons, or both.”  The editorial warned “. . . if the County gets its way and grabs millions of dollars worth of business away from the Falls Church water system, then that will force the Falls Church system to charge still more for its water to remain solvent.”

Of Dollars and Hook-ups

Falls Church water is expensive.  The City’s rate per 1,000 gallons is double that of Fairfax ($3.03 vs. $1.50 in 2007).  However, its hook-up fees are lower than the County’s.

According to the News-Press, the 2007 hook-up fee per residential unit is $2,200 in Falls Church’s system and $2,800 in Fairfax’s.  Thus a 250 unit condo or rental project’s hook-up would cost $550,000 in the Falls Church system, versus $700,000 in Fairfax.

Hook-up fees for commercial projects also are higher in the County.  The News-Press estimated that a large project in 2007 would cost a developer from $30,400 to $47,950 more, using Fairfax water instead of the City’s.

Such differences in fees, especially when multiplied many times, show that Falls Church offers the developers a better bargain.  However, Fairfax, perhaps because it has much more land available, can charge more, a practice Falls Church officials consider coercive.  Obviously, the County also would stand to profit handsomely by hooking up many new projects in areas traditionally served by the City, which inevitably would result in losses for Falls Church.

Falls Church’s Case

The City chose to file in federal court because its claim involved federal water. Falls Church buys its water from the Army Corps of Engineers, who maintains both the Washington Aqueduct and the Dalcarlia Reservoir in the District of Columbia.

The Corps also is obligated to comply with Environmental Protection Agency mandates to clean up the Potomac River, which is the source of the water.  In order to do so the Corps had to borrow funds from the Treasury, and its customers, including Falls Church, are required to repay the debt.

Citing four federal statues from1859, 1926, 1947, and 1996, the City maintained that Fairfax Water was pre-empted from providing water and water utility distribution service to retail water consumers; in effect, that Falls Church holds an exclusive right to provide water within its traditional service territory.

The 1859 Act established the Washington Aqueduct.  The 1926 Act authorized the Aqueduct, at the discretion of the Secretary of War, to sell water to Arlington County should it so request.

The 1947 Act, which was the first to specifically mention Falls Church, permitted the Secretary of War to provide water from the Aqueduct to the town (it became an independent city the following year) as well as to any other competent State or local authority in the Washington metropolitan area in Virginia.  The 1996 Act authorized the Secretary of the Army to sell the Aqueduct within three years to a non-Federal, public or private entity.

In March 2007 FCWA’s attorneys responded to the City’s action, maintaining that Falls Church had no exclusive right to sell water in certain areas of the County.  Essentially, their view was that Falls Church was not allowing Fairfax to compete for customers

Fairfax Water’s counsel concurrently requested a summary dismissal of the lawsuit.  This was a routine motion and Falls Church City Attorney Roy Thorpe was not impressed, telling the News-Press, “We expected this and look forward to defending our lawsuit.”

US District judge T S Ellis III evidently was equally unmoved as he denied Fairfax’s petition on March 30.  The skirmishes were over.  The first major battle of the Water War was about to begin.

Tommorow: a review of the court proceedings.

(Great Falls Photo by Richard Rut)