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Return to themail, October 27, 2002

October 27, 2002

Reply by Shaun Pharr, The Apartment and Office Building Association, to posting by Debby Hanrahan in themail, October 20, 2002.

While I suppose I should be flattered and just keep quiet when a piece in themail refers to AOBA as "one of the city’s most influential business groups" with its "skilled and ever-present lobbying" (maybe she’s confused us with the Federal City Council? Joke, that’s just a joke, Ken Sparks!!), the inaccuracies and misinformation in Debby Hanrahan’s tome on the groundwater matter can’t be left unchallenged. And, it is such a bogus issue: I’m absolutely incredulous that an organization like the Statehood/Green Party is actually coming to the defense of a screwball program that epitomized the circa 1990 mindset of the Barry Administration and D.C. Council at its worst. It was yet another example of their then-common conspiracy to extract more money from citizens and businesses for substandard or, in this instance, nonexistent services.

I really hope your readers will bear with me while I provide a detailed and verifiable description of this whole non-issue, and correct some of the more egregious errors and misinformation in Ms. Hanrahan’s account.

1. The recently repealed law in question would have required every single (non-Federal) property in the District—single family homes, apartment buildings, condominium buildings, office buildings, churches, schools, day care centers, etc.—to install a meter and be billed for groundwater discharges into the combined and/or sanitary sewer system. It was in no way limited to commercial buildings like those owned by AOBA members.

2. AOBA was merely the lead—hardly the only-- organization opposed to the groundwater scheme. Virtually every other major association: the Hotel Association, the Hospital Association, the DC Chamber of Commerce, the Board of Trade, the Restaurant Association—even the Association of DC Condominium Boards, when it was extant—supported repeal of this ill-advised scheme, because of its dubious nature and adverse impact on citizens and businesses.

3. Unlike the secretive adoption of the groundwater scheme in 1990 (see below), its proposed repeal was the subject of a Council hearing (Committee on Public Works, October 4, 2000).

4. It is disingenuous, at best, to skewer Councilmember David Catania for his good judgment regarding the groundwater scheme: the repeal measure, while initiated by Councilmember Catania, was co-sponsored by Public Works Chairman Carol Schwartz, and was adopted unanimously by the Council, with the support of the Mayor, for ample reasons which are detailed below.

5. The fact is, the final, adopted version of the groundwater repeal provision was drafted by WASA and provided to Councilmember Catania. I don’t know who Ms. Hanrahan spoke to at WASA, but they are uninformed. Needless to say, repeal was, ultimately, supported by WASA— whatever the reasons, this was a reflection of the (eventual) good judgment of WASA’s leadership in regard to this misadventure. The utility’s website has also contained information since October 2001 anticipating repeal by the Council.

6. AOBA took WASA to court in 1998, not the other way around, and we obtained an injunction from D.C. Superior Court in a heartbeat. We did so because of the arbitrary, aggressive and selective manner in which WASA was attempting to implement the program, routinely violating the law and its own regulations in the process. In many instances, property owners were advised that failure to comply would result in termination of water service to the property-- an unlawful threat which could not be ignored. The injunction was never lifted.

7. There has never been "lost revenue" to WASA by repeal of the groundwater authority, because WASA never found a way to legally implement it. Our injunction never prohibited implementation-- it merely required that WASA do so in full compliance with its own law and regulations. WASA managed to get meters installed in only a handful of private properties whose owners were unaware of the legal issues, and in some METRO stations/tunnels (for more on why it is in no D.C. resident’s interest to see METRO subjected to this scheme, see below).

8. Thus, the "1 percent increase on residential water bills" because of the Council’s recent action is an absolute fiction. Despite the prior law, the groundwater program proved impossible to implement, so any alleged "costs" attributable to groundwater—and they are dubious—have always been, and continue to be, spread among all D.C. WASA customers as an infinitesimal part of the current rate. There is no "increase" because of the law’s repeal. Even if the law could have been implemented, WASA has at no time ever pledged to reduce residential rates once it had revenue from groundwater. Finally, the "1 percent" is premised on WASA’s moving-target revenue estimates, which it could never substantiate, anyway, for reasons far beyond "AOBA refusal to pay."

9. Recovering any ostensible "costs" of groundwater through the overall rate actually yields a far greater contribution from Federal properties than the metering and billing scheme would, without shifting an inequitable burden onto D.C. residents and businesses. The Federal government has a pre-Home Rule, Congressionally imposed statutory mandate to pay its D.C. water bills; no such mandate exists regarding the groundwater scheme, which is a creature of the Home Rule government. GSA was in no hurry to volunteer all of its properties with groundwater to WASA’s metering and billing scheme, and WASA had no means to compel it to do so. Yet, every Federal property is covering groundwater "costs," if they exist, by paying their water bills.

A last word on "costs." A WASA official recently acknowledged in a conversation with me the validity of an issue which AOBA has been raising for years, but which his predecessors would never concede: that the introduction of "clean" groundwater into the sewage stream has a beneficial effect, because it dilutes the strength of the sewage effluents before the combined stream reaches Blue Plains. This beneficial aspect of groundwater disposal has never been factored into any consideration of its alleged "costs."

10. There is not, and has never been, an environmental basis for the groundwater program, or an adverse consequence of its repeal. If a property from which groundwater must be removed is lucky enough to be close to one of the city’s separate storm sewers, the groundwater—because it is "clean" and does not require treatment-- goes directly into Rock Creek, the Potomac or Anacostia Rivers. However, because Washington never completed its storm water system, significant parts of the city have no storm sewer-- meaning that the city left property owners in these areas who have groundwater no choice but to channel it into the regular sewer system, where it goes to Blue Plains for treatment it does not need.

At one time, WASA ginned up a rate it hoped to apply to groundwater billing. It arrived at the rate by subtracting out all the chemical costs from the regular sewer rate, explicitly acknowledging that groundwater was "clean."

11. A major question exists, for many properties, about whether the so-called Agroundwater@ which is being captured and pumped away is, in fact, treated water which has escaped from WASA=s municipal distribution system. In the August 29, 1999 Washington Post, it was reported that WASA has the third worst rate of all water utilities in the U.S. regarding Alost@ water-- it could not account for 24.6% of the water which it put into its distribution system. Several property owners advised that they had tested the so-called Agroundwater@ in their buildings and found that it was, in fact, treated water, which presumably migrated through the ground after leaking from WASA distribution pipes.

12. In virtually every other U.S. jurisdiction, things like groundwater "costs" are built into the overall rate because it’s the most equitable way of dealing with things which are, simply, not caused by, and are beyond the control of, the customer. When the Council asked WASA to identify what other U.S. cities required our type of metering and billing system for groundwater, the only one it came up with was Golden Valley, Minnesota—population 21,000 people.

13. The origin of the District’s law is not worthy of defense. Prior to 1990, District law authorizing sewer charges did not address groundwater in any way. The utility belonged to the city back then, and its mis-administration by the Department of Public Works (DPW) was notorious in the 1980s. In 1989-90, the Council was once again trying to legislate the problems away, and it was then that Barry’s DPW came up with the harebrained groundwater scheme, which was nonexistent anywhere else in the country. After a public hearing had been held on a larger water/sewer bill, DPW asked then-Committee on Public Works Chairman Nadine Winter to slip it into that bill. She dutifully went along and put it into the committee print at markup, and the Council subsequently unwittingly adopted it. Savvy readers know what that kind of sleight-of-hand meant: there was never any public awareness of this measure before adoption-- and, obviously, there is no chance to testify on something you don't even know about.

So, the first anyone knew of it was when DPW-- in typical timely fashion-- got around to publishing proposed rules... three years later! To its credit, the Kelly Administration eventually thought better of this approach and did not implement it. Regrettably, no movement was made to come back to the Council and ask it to repeal the groundwater provisions and set the law back the way it was before the 1990 amendment. So there it lay, until the Congress forced D.C. to spin off the utility, and WASA was created. I’m sure your readers recall with fondness that, right out of the gate, WASA ended subsidies for churches and social services organizations and instituted a 43% rate hike. In its relentless hunt for revenue, WASA also seized on the groundwater law it had inherited from D.C.—and immediately started trying to put it into operation.

Councilmember Catania and his colleagues did not believe that the owners and occupants of affected properties should be forced to bear a discriminatory economic burden caused by conditions over which they have had no control: the location of the water table beneath their property, the decision not to complete a storm water system in the District, and the inadequate maintenance of the water supply system. Moreover, the District government also has significant exposure, with 42 million square feet of space, as well as traffic tunnels, many of which have groundwater. Yet none of its agencies has ever budgeted for meter purchase and installation, much less for the annual billing costs. It would also have been responsible, ultimately, for any costs to METRO, since they would have been attributable solely to a D.C. law and METRO recovers such costs from the jurisdiction whose law creates them.

The law the Council repealed was an artifact of those times that none of us ever wants to see again— those times when the D.C. government was continually cooking up new and unique ways to squeeze more money out of its citizens and businesses. It was this Council’s right and its duty to eliminate it, so that citizens and businesses would not be saddled with yet another unique "tax" for choosing to be in the District of Columbia.

I’m beginning to feel like the Unabomber here, so I’ll stop (in true Unabomber fashion, however, I will gladly send an even more detailed manifesto on this subject to any glutton for punishment who would like it).

Best Regards,

Shaun Pharr
Vice President of Government Affairs, DC
The Apartment and Office Building Association of Metropolitan Washington, DC

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