Opinion: Settle the Water Litigation Now

The Falls Church City Council will meet with City Attorney John Foster in closed session Tuesday May 5 to discuss Fairfax County’s lawsuit against the City regarding  the City’s delivery of water in areas of Fairfax County.   At that meeting, the Council should carefully consider the admonition Falls Church resident George Pavelis made to them last week:  there are dividends to be earned from resolving the matter.

It is easy to understand the desire Falls Church City leaders had in 2007 to preserve the City’s exclusive water service area.  As our colleague George Bromley described in his recent series on The Water Wars, the City had made an investment in water infrastructure going back to the 1940s, and the revenue from that investment provides an important revenue stream to the City.  In addition to serving City residents, the water system serves thousands of Fairfax County residents, a customer base built under a 30-year agreement with Fairfax County which allowed Falls Church City the exclusive right to provide water in certain areas of the County.

When the agreement ended in 1989 and Fairfax County subsequently began offering its own water services to areas of the County previously served exclusively by the Falls Church City system, one can imagine the dismay of City leaders.  One can understand why they felt they had to do something to stop the encroachment.

Unfortunately, the thing they did was to file suit in federal court.  Even more unfortunate was their reliance on an extremely aggressive legal theory that ultimately proved unpersuasive.  The theory, in summary, was that even after expiration of the services agreement between the City and the County, the City still held the exclusive right to provide water in the areas of the County constituting the City’s historic service area.  Thus, the City was arguing that Fairfax County was legally precluded from providing water to people in . . . Fairfax County.

Making the case that any municipality is precluded from offering services to its own residents is never an easy thing to do.  Not surprisingly, we failed to do it.  In fact, we failed to do it twice.  The Federal District Court rejected our arguments, then the Appeals Court did the same.  And importantly, Fairfax County officials were not amused.  One long-time Falls Church resident recently recounted a conversation with a Fairfax County official in which the latter made clear that “they planned to get us back.”

Now the shoe is on the other foot.  The Fairfax County Water Authority is suing us in state court, claiming the City’s refusal to move a water line at the request of a Fairfax developer and at the developer’s expense constitutes anti-competitive behavior. The reason the City refuses to move the lines, the County says, is because the developer will not promise to hook up to the Falls Church water system.  Therefore, the City is impeding development of the property in violation of state anti-trust laws.  Falls Church claims that it is the County which is being heavy-handed to the developer, using the County’s construction approval process to force the developer to connect to the Fairfax water system.

Falls Church’s pleadings in the case are something of déjà vu all over again.  For the third time, we try to justify an exclusive service area in parts of Fairfax County.  In response, the County says nice try, been there, done that, you can’t re-litigate arguments you already lost in Federal court. The merit of other arguments argued in the current case are as yet undetermined, but as to that one, it would seem that the County has a point.

With this in mind,  here is a suggestion to our City leaders:  please try to settle this case.

It seems extremely unlikely the City will prevail on the argument that we have an exclusive service area in Fairfax County, having lost the argument twice before in other fora.

As to who is right and wrong regarding the Fairfax developer, who knows?  Fairfax County has a point that the refusal to move utility lines at developer expense clearly impedes development and clearly is being used to force connection to the Falls Church system.  Falls Church has a good point that Fairfax County is being heavy handed in conditioning building approval on the developer connecting to the Fairfax system.

But here’s the deal.  Even if we win this case, we lose.

By all reports, the Fairfax County Board of Supervisors was incensed when we sued them in Federal Court to keep them from delivering water to their own residents several years after the water services agreement between the two jurisdictions had expired.  And then they were even more incensed when we dragged them through the appeals process on a legal theory wholly rejected at the district court level.

So Fairfax County is mad at us to start with.  Is this a retaliatory action?  Maybe.  But guess what — they can do it.  They are huge, we are tiny.  They have a big litigation budget, we have a small litigation budget.  They want to punish us, they’re going to punish us.

Now, think of all the ways they might do that.  Three of our four Falls Church City schools lie in Fairfax County.  Is it possible they might make new school construction difficult?  What about transportation?  Is it possible they could oppose us on something we want in the Northern Virginia Transportation Commission?  Same for . . . you name it.  We interact with them hundreds of ways.  Pick your topic.

What’s the solution?  Cut the deal now.  It is not in their best interest to compete with us for water services. Sure, they could strangle our water network over time, but it will take years and it will take money.  It does not make sense for them to build and operate a parallel network.  Offer them a share of revenues from our water sales to their residents.  That way, both jurisdictions get something out of it.

And what do we have to lose by talking?  If they say no, they say no.  Then we can decide to keep litigating or not.  If they say yes, we settle the case and preserve some level of return on our investment in water infrastructure.  The only dumb decision is to keep litigating without trying to come to an agreement.  From every public statement we have seen from Falls Church leaders, it would appear we are not really trying.

C’mon.  These are our neighbors.  Pick up the phone and call them.  Let’s try to get this thing behind us.

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Read the Falls Church Times 4-part series on the Water War Between Falls Church and Fairfax County below:

Part 1: A Tale of Two Lawsuits

Part 2: How City Lost Suit Against Fairfax County

Part 3: An Appeal Denied

Part 4: The Authority Strikes Back