As Asheville continues to grapple with Helene-related damage to its water system, some political observers recall that the General Assembly tried to take water system issues out of the city’s hands a decade ago.
That effort ended with a 5-2 state Supreme Court ruling in December 2016.
Asheville officials have estimated that they will need weeks to restore the city-run water system after Helene. Asheville and many other western North Carolina communities are facing record levels of damage and destruction tied to the storm.
But water outages are nothing new for western North Carolina’s largest city. Carolina Journal reported in January 2023 that Asheville City Council had appointed an independent review committee after a December 2022 water system failure that “left much of the service area without potable water during the holiday season.”
Former state Rep. Chuck McGrady, a Republican from Henderson County, discussed with CJ water-related concerns that dated back two decades.
“Back in 2003 there was an authority to deal with water between Buncombe County and the city of Asheville and that resulted in them being allowed to take some of the water revenues and distribute them either to the county or the city, meaning those revenues weren’t being consistently put back to fund repair of infrastructures or replacement of infrastructures,” McGrady said last year. “That’s a real problem. You have to maintain these systems. It’s not just about pulling the revenue in. You need to pull the revenue in and bank some of it because you know you’re going to need to replace those pipes; you’re going to need to replace that plant.”
McGrady said the city wasn’t doing enough to repair and improve its system. He also noted that a significant portion of those served by Asheville’s system live outside the city.
“Around 40% of the users of the Asheville system do not live within the City of Asheville,” McGrady said. “Therefore, if they have water problems, they really don’t have anywhere to go. These municipal systems are not regulated in the same way that a private water company would be, so they don’t have the option of voting out the mayor and council if they’re not providing good water or enough water. Forty percent of those utility customers really have no recourse here when there are problems. I think that’s a serious issue.”
The General Assembly addressed the issue in 2013 with House Bill 488, approved 76-40 in the state House and 31-16 in the Senate. The law would have created a new independent authority to oversee water service in Asheville and surrounding communities.
“The goal was to repurpose it to be an independent authority and ensure that money was used wisely in terms of making investments in infrastructure,” McGrady told CJ.
A Wake County Superior Court judge issued an injunction in 2014 blocking the law from taking effect. The state Court of Appeals reversed that decision and upheld the law.
The state Supreme Court killed the law with a 5-2 decision in December 2016.
“The total absence of any justification for singling out the City’s water system from other large municipally owned systems and the steps taken during the drafting process to ensure that the involuntary transfer provisions of the legislation did not apply to any municipality except the City demonstrate that the involuntary transfer provisions were never intended to apply to any municipal water system except that owned by the City,” wrote Justice Sam “Jimmy” Ervin IV for the majority. “As a result, given the absence of any reasonable relationship between the stated justification underlying the legislation and the classification adopted by the General Assembly for the purpose of achieving its stated goal, the legislation is, without doubt, a local rather than a general law.”
Once judged to be a local law, House Bill 488 ran afoul of the state constitution’s ban in Article II, Section 24 against local acts “relating to health, sanitation, and abatement of nuisances.”
Republicans held a 4-3 majority on the state Supreme Court in December 2016. Republican Justices Robert Edmunds and Barbara Jackson joined Ervin and fellow Democratic Justices Cheri Beasley and Robin Hudson to form the majority in City of Asheville v. State.
Chief Justice Mark Martin and Justice Paul Newby, both Republicans, dissented.
“Throughout our history, when communities needed a governmental provision of water and sewer services, the General Assembly, by local act, would grant a local government unit the authority to act. Here the majority’s holding ignores this historic constitutional understanding of the plenary authority of the General Assembly to oversee local government subdivisions and create new ones when necessary,” Newby wrote.
“Our history and our constitution recognize this plenary authority is necessary because the General Assembly is uniquely situated to oversee local government and address changing needs,” the dissent continued. “Now the Court brings uncertainty as to whether there are any lawfully established water or sewer districts in North Carolina.”
“Even assuming the legislation at issue is a local act, the legislature first gave the City of Asheville, and countless other municipalities across our State, its water district by local act,” Newby wrote. “If it is unlawful to modify that district by local act, then it was unlawful to establish it by local act initially.”
“The majority’s complicated analysis casts this Court in the ill-suited role of legislating which local governmental authorities shall govern various water and sewer services. Because the General Assembly exercises its plenary authority in creating a water and sewer district, its action is constitutional,” Newby added.
The dissent highlighted longstanding disagreements between Asheville and water system customers living outside city limits.
“The General Assembly is the only body politic with the oversight and authority to create and organize local political subdivisions in its discretion. It alone has the ability to resolve local governance disputes such as those undergirding the litigious past of the water system at issue,” Newby wrote.
“Spanning almost a century, legislation and litigation chronicle the strained relationship between the City of Asheville’s water system and its County water customers,” the dissent added. Newby highlighted legislation dating back to 1933.
“After several amendments and reinstatements of the joint agreement between the City and the County that was first established in 1981, that agreement ended in 2004, ultimately leaving the City with ownership and control of the water system. Again, it seems the parties soon after resorted to the legislature and the courts,” he wrote.
“The plenary power of the General allows it, not the courts, to craft a resolution of this matter,” Newby added.
“The majority’s holding that a new political subdivision addressing regional problems with the water system violates Article II, Section 24 simply because the legislation involves a water system erases the General Assembly’s historic authority to establish convenient local governmental units acknowledged by the first clause of Article VII, Section 1,” the dissent concluded. “The General Assembly’s creating a new local governmental subdivision does not offend the state constitution. This Court should not weigh the wisdom or expediency of a legislative act.”
The post Asheville’s water struggles after Helene prompt some to recall 2016 court ruling first appeared on Carolina Journal.