F.C. Mulls Next Step as Lawsuit Vs. Fairfax Water is Dismissed

Mayor: Cost of Fairfax Designs Will Be Steep

City of Falls Church Mayor Robin Gardner, while saying she was “disappointed” by a federal judge’s decision last week to dismiss the City’s lawsuit against Fairfax County’s water system, confirmed that the City’s options are far from exhausted.

The City, on behalf of its water system that serves 120,000 customers in the Tysons Corner, Dunn Loring, McLean and Langley regions of Fairfax County, sued earlier this year to compel Fairfax County from stop its new policy of trying to sell its own water to customers in the region historically delineated as Falls Church’s.

Fairfax continues to approach potential customers in the Falls Church area, Gardner said in an exclusive interview with the News-Press at City Hall Tuesday that included City Manager Wyatt Shields.

Concerning the dismissal by Judge Claude M. Hilton at the U.S. District Court in Alexandria, she reiterated, “We are disappointed. The City Council is as well. We felt we had a good case and that the outcome could have been different.”

The City has 30 days to appeal the judge’s ruling, spelled out in a 15-page opinion. The City argued that the boundaries set out in a 1959 agreement with the county have remained unaltered, with a positive and cooperative working relationship between the City and the county, until last fall. Even though the formal agreement lapsed in 1989, it was maintained as a practical matter by both parties, and therefore should, in a manner akin to a common law marriage, be maintained if necessary by the force of law.

The City also argued that because it buys its water from the U.S. Army Corps of Engineers, the federal government has an interest in maintaining the current arrangement that has existed for so many years. Falls Church officials filed the lawsuit when they learned in January that Fairfax Water had approached Trammel Crow offering to sell water for a proposed office complex in Merrifield.

But despite the judge’s ruling and continued efforts by the county to woo Falls Church customers, the News-Press has learned that the county has yet to successfully close a deal with anyone in the F.C. area.

Falls Church officials became alarmed when it learned in January that Fairfax Water had approached Trammel Crow offering to sell water for a proposed office complex in Merrifield. They moved swiftly to file the lawsuit at that time.

But the minute they did, Mayor Gardner pointed out, that would set in motion a process that would necessarily result in a significant rise in water costs to all customers, those of both the Fairfax and Falls Church systems.

“The county would have to dig up the ground and put in its own water line, probably right next to ours already there, and that won’t be cheap,” Gardner noted, adding that it would also pose an unnecessary construction inconvenience to the area.

County officials claim they have changed the years’-long collaboration between the county and Falls Church because “they can,” on the one hand, and because many county residents complain they’re required to pay more for Falls Church water than Fairfax charges.

They contend the situation has worsened since Falls Church began to draw an annual “return on investment” from its water fund every year to help with its annual operating budget. But, Falls Church officials argue that this policy is entirely in conformity with the way water systems are normally run and was introduced only after hiring industry consultants for a thorough review that included comparative practices all over the U.S.

Moreover, F.C. officials attribute the cost of its water more to the added security and environmental demands that derive from the fact it buys its water from the U.S. Army Corps of Engineers.

On the other hand, Mayor Gardner pointed out, there are no guarantees that Fairfax will continue to offer its customers its current lower rate. She said that if the county begins to cope with the cost of building new lines parallel to Falls Church’s as it encroaches onto Falls Church turf, those costs could rise very quickly.

At stake is millions of dollars that will come from hook up fees and service provided to the development explosion planned for Tysons Corner in the coming years.

In Judge Hilton’s ruling, he stated, “The City (of Falls Church-ed.) cannot point to any facts to show Congress wanted to displace Virginia law by granting the City an exclusive federal franchise to sell water in Fairfax County.”

Mayor Gardner said that over the last six months since the suit was filed, there has been no substantial contact with Fairfax County officials on the matter. “The outstanding issues here do need to be resolved,” she said.