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Water Suit Appeal

F.C. Back in Court Vs. Fairfax Water ‘Cherry Picking’

Refusing to take “no” for an answer, City of Falls Church officials filed an appeal in the Fourth Circuit Court of Appeals yesterday to overturn a ruling two weeks ago by a judge to dismiss its suit against Fairfax County’s water system.

The swift response, supported by the Falls Church City Council, was in keeping in both pace and intent with the City’s rapid initial law suit filing in January. That was when it learned Fairfax had reversed 48 years of policy and began violating the service area boundary separating its water system from that of Falls Church.

Having up to a month to respond, Falls Church was back in court in only two weeks.

Falls Church’s system extends deep into Fairfax County and includes Tysons Corner and Merrifield, two areas poised for aggressive growth. While a formal agreement on the boundary between the two water systems, originally created in 1959, expired in 1989, it has remained in practice until this January.

Because of its special relationship to the U.S. federal government, including the City’s purchase and use of water from the Army Corps of Engineers’ Dalcarlia Reservoir in Washington, D.C., Falls Church argued in its original court filing that it is part of a “federal system” that preempts any other use.

But U.S. District Court Judge Claude M. Hilton, in his 15-page ruling dismissing the case, made no reference to court citations made in Falls Church’s suit. Instead, according to sources, he fully adopted Fairfax County’s argument.

“I am confident that upon appeal the ruling will be reversed,” said Falls Church City Attorney Roy Thorpe.

In its new filing, Falls Church reiterated its argument that its system is part of a “federal system” and that there is case law to support the preemption of such a system over free competition. Such relationships have been supported by the courts whether explicit or even merely implied.

The Falls Church system is intertwined with the federal government on a number of levels, including not only the use of its water, but in the maintenance of its infrastructure and in funding required improvements through the use of federal debt mechanisms.

“We are taking action to defend our system and preserve our water service area,” said Falls Church Mayor Robin Gardner. “Fairfax Water is unfairly trying to put us out of business by cherry picking large developers in our service area.”

Gardner added that, were Fairfax to succeed at that, “Fairfax Water will lay new pipe beside our existing pipes to create a duplicative system, and expect their residents to pay for it. That’s a poor use of the public’s money.”

“We have a 75-year track record of providing clean, safe and reliable water to our customers,” she continued. “We built the water system and we should be able to continue to serve our customers as we have for the past 75 years.”

Gardner confirmed to the News-Press yesterday that the court action has the “full support” of the Falls Church City Council, which met behind closed doors to approve it.

According to a statement from the Falls Church City Manager’s office, “For decades, the City of Falls Church has been a good neighbor and sound business partner to Fairfax. The City has undertaken significant capital improvement projects to support its water system over the years to meet the projected growth of many Fairfax County areas served by the City’s water utility.”

While the appeals court may not reverse Judge Hilton’s decision and declare in favor of Falls Church, it is likely it could remand the case back to the District Court with instructions to better respond to the issues as raised and legally documented by Falls Church.