City Officials Ponder Next Steps for Water System After Corps Reversal
By STEPHEN SIEGEL
Falls Church Times Staff
May 25, 2012
City officials scrambled on Friday to decide on their next move after the Army Corps of Engineers at least temporarily ended their plan to sell the city’s water system to the highest bidder.
The Corps did that via a legal opinion issued May 17 and affirmed on Thursday arguing that the Washington Aqueduct, which supplies Falls Church’s system with water, is not authorized to sell that water to an investor-owned utility but only a governmental body.
That reversed a legal opinion issued by the Corps March 8, which the City had relied on, stating that the Aqueduct could sell water to an investor-owned utility.
The flurry of events and the dead end that the City appears to have found itself in may cause reevaluation of the decision to sell the system. But that is unclear at this point. As of Friday morning, City officials still hadn’t even seen a copy of the legal opinion, and it isn’t clear if the legal opinion is the last word on the subject.
Also unanswered is why the Corps released a legal opinion two months ago that allowed not only City officials, but officials of the 10 interested parties to go ahead and submit bids for the system, only to step in at the 11th hour and change its mind.
Asked about this strange turn of events, Christopher Augsburger, a spokesman for the Corps, said he would provide some answers by the end of Friday. The Times also asked for a copy of the legal opinion and why the earlier opinion was released publicly if it wasn’t final.
Mr. Augsburger ultimately referred the Times’ request to another spokesman, Gene Pawlik, who said he was authorized to release only
this statement: “The Chief Counsel for the U.S. Army Corps of Engineers on 17 May issued a final opinion concerning the authority of USACE to potentially deliver water from the Washington Aqueduct to an investment-owned utility. Based upon a review of the applicable statutes and consistent with a 1963 opinion issued by the USACE Baltimore District counsel, the Chief Counsel found that USACE's authority to deliver water is only to governmental authorities and does not extend to delivery to non-public entities. The final opinion reverses – after additional research into the issue – an initial preliminary opinion that indicated USACE might be authorized to deliver water to a non-governmental agency.”
While some may fault the City for relying on the earlier legal opinion, at least one Northern Virginia government official not connected to Falls Church City said privately that the reversal made the Corps look bad, suggesting they have “egg on their faces.”
In addition to the Corps’ refusal to explain why the earlier decision was released publicly, the statement provided by Mr. Pawlik appears to inaccurately quote that earlier decision.
The statement says the “initial preliminary opinion” indicated the Corps “might” be authorized to deliver water to an investor-owned utility, but the March decision, from senior counsel Susan Greenwood, instead is much stronger.
Ms. Greenwood wrote: “I believe that the statute governing the provision of water from the Washington Aqueduct to the City would permit the provision of water to an IOU [investor-owned utility] or governmental water authority for the purpose of providing water for the use of the City of Falls Church.”
By Stephen Siegel
May 25, 2012