Water Pipeline Case Still Undecided

Water Pipeline Case Still Undecided

Judge leaves record open for a week for closing comments.

It appears that the Citizens Against the Pipeline will have to wait a little longer to find out whether the Fairfax County Courts will rule in their favor in their case against the Fairfax County Water Authority.

Last Thursday, Oct. 13, the Fairfax County Circuit Court heard the case of Charles Kernan, et. Al. vs. the Fairfax County Water Authority (FCWA), but no final ruling was made since the judge decided to keep the record open for a week to allow the plaintiff's attorney Brian McCormack to file his closing remarks.

The case stems from FCWA's decision to install a water main along Walker and Arnon Chapel Roads that extends to the Riverside Manor subdivision in Great Falls. Prior to this past March, the residents of Riverside Manor received their water from a well system, and many of these residents were displeased by FCWA's presumption that a transition to public water was amenable to everyone.

"It's been a long-standing policy that public water not be extended North of Georgetown Pike for a variety of reasons," said Jack Bowles, a plaintiff in the case. "It provides an incentive for more intensive development, and there are environmental issues ... it just seemed that all of a sudden historical policy didn't matter anymore."

The FCWA sent a letter to affected residents in the summer of 2004, informing them that a new 12-inch pipeline needed to be installed due to the presence of radon in the water, and because they wanted to provide better fire safety protection. Riverside Manor resident Dr. Harry Miller says that FCWA provided weak reasons for the change, as residents were never provided with evidence of radon in the water, and because the Great Falls Fire Department has never lost a structure as a result of lack of water supply and water pressure. The FCWA also cited their desire to provide better quality water to residents.

"The quality of water has always been the best in the County coming out of that well, so we all felt that was bunch of bogus arguments from Fairfax Water and we challenged them on it," said Miller.

For his part, Bowles says that while he can understand the reasoning provided by the FCWA, there is a larger issue at hand.

"The real issue here is that Fairfax Water decided this as a fait accompli," said Bowles. "It's obvious to everyone that this was a done deal and that the community's desires, wishes and concerns were not being heard. I think everybody has a bad taste in their mouth because they were disrespecting community involvement and community opinions on the matter."

Riverside Manor residents rallied with the rest of the Great Falls community and over 1000 signatures were collected on a statement declaring opposition to the planned pipeline. Subsequently, the so-called Citizens Against the Pipeline (CAP) group was born. A public hearing was held on the matter in January of 2005, but despite opposition from the community, the project went forward shortly after the hearing. Construction of the pipeline was completed in June of this year.

"They had several shifts working at the same time, so they were anxious to get it done ... before anyone could raise a legal fuss," said Miller. "The difficulty is that Fairfax Water doesn't have anyone that they answer to."

MILLER ALONG WITH FOUR OTHER RIVERSIDE MANOR RESIDENTS decided to take legal action against FCWA. Although the pipeline has already been built, the five plaintiffs would like to see the Fairfax County Court declare that FCWA violated state law and the County's Comprehensive Plan by not submitting a proposal for the project to the Fairfax County Planning Commission for review.

"Though Riverside Manor residents are already drinking public water, a win would be more than a moral victory," said Bowles in a press release on last Thursday's hearing. "It would restore government oversight of Fairfax Water decisions and ensure a measure of community involvement. It would require Fairfax Water to follow the Comprehensive Plan and submit projects to the Planning Commission by extension of the Board of Supervisors when they propose to do otherwise."

The results of last Thursday's hearing remain to be seen. Attorneys for the FCWA argued that there was no violation of state law or the Comprehensive Plan because the proposed water main project falls under the County's classification of a "normal service extension."

David Marshall, a Branch Chief with the Fairfax County Department of Planning and Zoning testified that in 1993 he recommended that the Water Facilities Planning Agreement be amended to allow any pipeline under 16 inches to be built without having to go through any sort of approval process. The supervisor of the district where the pipeline is being built simply needs to be notified of the project.

"Basically we were trying to sustain greater efficiency," said Marshall during questioning at last Thursday's hearing.

Brian McCormack, attorney for the plaintiffs, pointed out that under this provision a 12-inch pipeline could be built

regardless of environmental impact or impact on density. During arguments before the judge, McCormack also repeatedly emphasized that the definition of a "normal service extension" is not something that can be determined by the Board of Supervisors.

"I hate to be rude about it but I just don't think it's any of the Board of Supervisors' business to determine in 1993 that for all time forward a pipeline that is 16 inches or less is a regular service extension," said McCormack.

Stuart Raphael, attorney for FCWA, argued that "the County is entrusted with enforcing the land use laws, and this is another way to define it in advance so that you have a clear rule and people know, and that's what they're doing here."