Fairfax County Water Ordinance Spurs Herndon Council Into Action

A Fairfax County water ordinance has spurred the Town of Herndon into action.

Tuesday night, the Herndon Town Council unanimously voted to pass an ordinance establishing the town’s position in regards to a Fairfax County ordinance that attempts to regulate the town’s water rates for its 41 customers that live outside the town limits.

In , even if they’re serviced by another provider, such as the Town of Herndon. Those providers have to “justify any higher rate” than the county wants to set.

Customers impacted include the Stuart Pointe Lane Townhouse development, a home on the very north end of Monroe Street, Temple Baptist Church and Herndon High School.

The Town of Herndon purchases wholesale water from the Fairfax County Water Authority, then resells the water to customers. Herndon’s average quarterly billing, based on 18,000 gallons per household, is $52, while the Fairfax County Water Authority’s is $37. That means the town would need approval from Fairfax County to continue to charge its higher rate.

Town Attorney Richard Kaufman said because the county’s ordinance isn’t dedicated to a countywide purpose, it doesn’t apply in or to the town. Additionally, municipalities cannot delegate legislative power, such as setting water rates, to a non-elected staff member, which would include the county, which serves another government.

Kaufman said the county’s ordinance was set to help protect customers against rates set by a governing body that doesn’t represent them.

The council voted on an ordinance that invites Fairfax County’s board of supervisors to discuss the water rate ordinance with them, could possibly annex the Town of Herndon’s outside water service area to the town, or transfer the customers to the Fairfax County Water Authority.

The town’s ordinance also asserts that the county’s ordinance doesn’t address a countywide purpose, because it doesn’t apply in the Town of Vienna or the Town of Herndon, or other areas the FCWA isn’t able to serve, so the ordinance should not apply to the town and its customers.

The ordinance also amends a section of Herndon Town Code (Section 74-341, Schedule of Rates), repealing it as unused. That portion of the town code requires a 33.3 percent surcharge to the out-of-town water customers, however the town has never charged the rate, and all the town’s water customers have been charged the same rate.

The Fairfax County ordinance came about because Falls Church was charging much higher rates to its residents who they were serving that lived outside the city’s limits than the residents who were receiving water service from the county. Kaufman said the issue has spawned several lawsuits. He said the county ordinance was never aimed at Herndon.

During discussion, Vice Mayor Lisa Merkel said the Town of Vienna is seeking the opinion of the attorney general, as well as seeking litigation. She asked if resulting litigation would apply to the town. Kaufman said it would.

Herndon resident Dave Webster spoke during public comment in support of adopting the ordinance. He said doing nothing is terrible, though litigation is terrible and expensive.

Webster said when Fairfax passed the ordinance . He said if Fairfax County buys the Falls Church water system then the problem disappears and they could perhaps repeal the ordinance.