2-15-16 Reg. Meeting - Laserfiche WebLink

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BK: 00028 PG: 0108 Public Purpose Limitation Due to the general regulatory umbrella governing drinking water in the State of North Carolina, and the confusion from DEQ and DHHS with regard to whether there exists a recommended health screening level (or MCL) for hexavalent chromium, there are limited options the Board may legally pursue to assist citizens affected with the described water issues. In general, private property and the fixtures on private property are the responsibility of the property owner. Governments generally lack authority to conduct any activities on or provide funding for an individual's private property. This is due, in part, to the public purpose limitation in Section 2(1) of the North Carolina Constitution which states, in part, that the "power of taxation" must "be exercised in a just and equitable manner, for public purposes only." This limitation requires that local governments spend taxpayer funds not for the benefit of specific individuals or interests, but for the benefit of citizens of the jurisdiction as a whole. What is deemed a "public purpose" under the Constitution, as determined and further defined by the North Carolina Supreme Court, hinges on whether the activity has a "reasonable connection with the convenience and necessity" of the local government and if it benefits the general public, rather than just a particular interest or person. Under a basic reading of the public purpose limitation, a local government lacks authority to financially improve or maintain a citizen's private water well. Construction of Water Lines — Use of Taxpayer Funds Under state law, local governments are authorized to operate water systems, and this Board has operated such a system in the past. The public purpose limitation likely does not automatically defeat the running of water lines to only a specific area of the county. However, there are additional constitutional concerns to consider if water lines are constructed using taxpayer money. It will be necessary to research the impact of the Equal Protection Clause on such tax -funded construction, insofar as protected classes are concerned now and may or may not be concerned in the future. Moreover, should a similar situation arise in the future, perhaps from a different cause altogether, the Board will want to consider any precedent it has set in the past, particularly if taxpayer funds are used, including an evaluation of whether any protected classes are not benefitted to the detriment of another class. Construction of Water Lines — Grant Funding Though the use of taxpayer funds requires careful consideration and may prove problematic in application, the Board may be eligible for limited grant funding to assist in the construction of water lines. One such grant, the Bernard Allen Emergency Drinking Water Fund, is administered by the NC DEQ Division of Waste Management. Unfortunately, many grants, including the Bernard Allen grant, require levels of constituents that surpass the MCL set by the federal government or the state - mandated health screening level. As I indicated earlier, there exists no federal MCL concerning hexavalent chromium and vanadium. Thus, the determination of whether the water is contaminated, thereby making the County eligible for grant funding, will fall to whether the water exceeds state regulations. Arguably, at least with respect to hexavalent chromium and vanadium, there may or may not be a state regulation with respect to these constituents. DHHS is no longer instructing citizens with hexavalent chromium levels of .07 ug/L or greater to not drink or cook with their water, even though it still recommends that levels not exceed .07 ug/L. In addition, Dr. Williams, the State Health Director, has indicated that DEQ is evaluating hexavalent chromium and may recommend to DHHS to modify their recommended health screening level.