Joel Burgess

jburgess@citizen-times.com

Asheville will maintain control of Western North Carolina's biggest water system following a state Supreme Court ruling handed down Wednesday.

In the 5-2 ruling the court sided with the city against the state General Assembly and its 2013 law to strip Asheville of the water system. The decision overturned a Court of Appeals ruling favoring the legislature.

Reacting Wednesday, Mayor Esther Manheimer praised the ruling, saying it allows the city to maintain "robust" water services.

"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," Manheimer said.

High water quality has been cited by industries, particularly beer makers, in deciding to locate in the Asheville area.

A member of the GOP-majority General Assembly, Rep. Chuck McGrady, meanwhile, said the court decision may not be the final word and there may be other ways to loosen the city's control.

"As I’ve said in the past, there are more than one way to skin a cat," said McGrady, a Henderson County Republican.

Timeline: Water — a fighting word in Asheville

Judicial arguments focused on technical details of whether the 2013 legislation was a local law relating to "health and sanitation," something prohibited by the state constitution.

The decision cut across political lines, favoring Asheville, governed by Democrats, over the GOP-dominated legislature. While officially nonpartisan, the current court has four Republican members and three Democrats.

There were other political undercurrents in the three-year fight. Some, including the sponsor of the 2013 bill, former representative Tim Moffitt, have speculated over the years that Asheville might try to charge noncity customers higher rates. But city officials say customers won't see any changes after the decision. Manheimer said the idea of higher outside rates isn't on the table and couldn't be enacted because of legal restrictions. "Differential" rates are common in many places but are prohibited here by another set of state laws aimed specifically at the Asheville system.

Also part of the drama is general rancor between the liberal city and conservative General Assembly, which has played out in a list of state laws aimed at reducing the power of Asheville and other cities.

Background to a water war

The system's tangled history started in the 1920s with the emergence of water districts outside the city, paid for by district residents. The districts went broke in the Great Depression and Buncombe County government took over debt left from water line construction. Asheville took on some of that debt after eventually annexing most of the districts.

In 1933 the General Assembly passed the Sullivan Act, guaranteeing the same water rates for city and noncity customers. More than 30 years later, Asheville started charging higher outside rates but was stopped by a 1958 Supreme Court decision.

In 1981 Asheville and the county created a limited water authority, with the city running operations. Both local governments siphoned off some water revenues. Henderson County joined in 1995, but in 2005 Asheville dissolved the authority and took sole control.

The same year, the then-Democratic majority General Assembly passed Sullivan Acts II and III, reinforcing the same-rate structure. The laws also required the city to extend water service to new noncity customers when asked and mandated all water revenue stay in the system. Asheville sued over the legislation but lost in a 2007 Superior Court ruling upheld by appellate courts.

By the time the legislature moved to take the system in 2013, Asheville's water resources department had about 124,000 customers, including approximately 48,000 outside city limits.

The now-nullified law said control would go to the Buncombe County Metropolitan Sewerage Authority with representatives from Asheville as well as other local governments. That would give customers outside Asheville, including in northern Henderson County, a say over how the system is run, backers of the law said.

But city leaders said that would have been unfair, given the central role Asheville played in establishing the system. It would also harm Asheville residents and taxpayers financially by reducing the overall size and efficiency of city government, they said.

Asheville sued and got a court order to temporarily block the transfer. The city won a 2014 Superior Court decision but lost in a 2015 ruling by the Court of Appeals. The fight then landed with the state's highest court.

State can't pick on city

Arguments in the court case centered around whether the legislation was a local law dealing with health, sanitation and "the abatement of nuisances," something constitutionally forbidden. Local laws, which are those aimed at one or a handful of local governments instead of being statewide, are legal if they don't deal with certain topics.

The 2013 law doesn't specifically name Asheville, but Wake County Superior Court Judge Howard E. Manning said the bill tried to get around the prohibition through clever wording. It “was specifically drafted and amended to apply only to Asheville and the Asheville Water System,” he said. Supreme Court Justice Sam Ervin IV noted Manning's decision in writing the majority opinion.

"In view of our determination that the legislation in question constitutes a prohibited local act relating to health and sanitation ... we reverse the Appeals Court decision," Ervin said.

In his dissent, Justice Paul Newby said the majority's interpretation was too strict since the General Assembly passes local acts creating water and sewer districts and those aren't prohibited for being related to health and sanitation.

"The court brings uncertainty as to whether there are any lawfully established water or sewer districts," Newby said.

Final word?

Another attempt by lawmakers to take the system would be tough, Manhiemer said, since the ruling says any new law would have to affect a large area.

"It would have to apply to the entire state, and I hope they would not consider that as an option — for the sake of other municipalities, as well as ours," the mayor said.

Republicans, though, may have options, McGrady said. The Henderson County legislator declined to go into specifics but said he wanted to study the ruling and hinted there might be a way to negotiate a change.

"I also want to talk to the local government leaders, including Mayor Manheimer and her council," he said.