Peoples Water Board concerned about possibility that Cox decision opens door to water privatization

December 1, 2011

DETROIT -- Despite a long history of legal decisions to the contrary, specific language handed down in the November 4 federal consent decree by Federal Circuit Judge Sean Cox could lead to the eventual privatization of all the assets of the Detroit Water and Sewage Department (DWSD) according to members of the Detroit Peoples Water Board Coalition. 

On page eight of Cox’s ruling, the following sentence that is found on the root cause committee letter adopted by Judge Cox. 

“As a by-product of this decision, it is also clear that DWSD cannot be expected to fully comply with the Charter provisions related to Privatization (Charter Section 6-307)."

“That is very scary. That is unconstitutional. That destroys the Home Rule Charter Provision. It also effectively renders the voice of the people null and void,” said Peoples Water Board Commissioner at large Charity Hicks. “He’s effectively taken the door off the hinges to privatization the Detroit Water and Sewage Department’s Municipal Agency.”

The DWSD Home Rule Charter has very clear and direct language that says that the assets of the municipal authority of the peoples of the city of Detroit shall not be sold or transferred without the people’s consent directly. The charter also states that the DWSD, which provides water at discounted rates to much of the greater Detroit metropolitan area,  must operate on a non-profit basis. Since the early part of the last century, special interests outside of the city have unsuccessfully sought to wrest control of the water system from the city. 

Cox’s decision appears to be a clear departure from existing case law. 

“What he’s effectively doing is creating a pathway to strike off and sale pieces of the system or the whole system in tact to private industry,” Hicks said. “What he’s doing is vacating the charter and that provision of the charter that says you can’t transfer or dispose of the people’s assets without the people’s permission.”

Cox’s decision was based off recommendations made by a root cause committee set up to look into the city’s compliance with a federal consent decree handed down in 1977 over the city’s violations of the Clean Water Act. PWB members say that instead of addressing pollution concerns, the judge along with city council members Charles Pugh and Gary Brown, who comprised the root cause committee, rendered a letter undermining the charter and attacking public unions.

Members of the Detroit Peoples Water Board
protest earlier this year
This is nothing but a back room deal between Mayor (Dave) Bing and two City Councilpersons [Charles Pugh and Gary Brown], approved in secret by a Federal Judge,” AFSCME Local 207’s attorney, George Washington told the Michigan Citizen. “It has nothing to do with ending pollution and everything to do with busting unions under the authority of a Federal Court order.”

Hicks agreed. 

“The City of Detroit’s Water and Sewage Department  has been under a federal consent decree since 1977. That’s over 30 years of federal over sight. On Friday the fourth of November, the federal judge who is over seeing the case gave an opinion based upon a committee that he selected,” Hicks said. “Who’s on it is Chris Brown representing the mayor. The president of the Detroit City council, Charles Pugh. The president pro tem Gary Brown and James Fausone, representing Wayne County on the Board of Water Commissioners. Those four people met over a 60 to 90 day period and crafted together this memo supposedly underlying the root causes of the federal consent decree.

“The Detroit Waste Water Treatment Plant was violating the Clean Water Act. That’s how we entered into the federal consent decree that’s lasted over 30 years. But what happens is rather than talking about the abatement of pollution, they went straight for the jugular of the waste water treatment plant and the water system itself by talking governance, control and authority.”

In addition, the ruling literally destroyed all the collective bargaining agreements of all the employees of the water board by saying they will have to separately negotiate with the administrator according to Local 207 Secretary Treasurer Michael Mulholland

“They didn’t mention pollution at all,” Hicks said. “They didn’t mention any strategies to come into
 compliance with the Clean Water Act. They didn’t mention green or gray infrastructure. They didn’t mention any plan afoot to help strengthen the water department’s ability to buffer run off and comply with the Clean Water Act. It was all about blame the charter. Blame collective bargaining, as if that was the cause of the pollution.

“Those things have nothing to do with the pollution. We are polluting because we are not doing the system’s work to stop the pollution. But rather than deal with how we operate and look at why we are polluting, they just are out to destroy the city’s governance.

Hicks said the Peoples Water Board is seeking community support from all of Southeast Michigan to oppose any privatization of the city’s water system. 

“We would like the community to help us keep the municipal enterprise agency that serves 120 communities,” she said. “Two to three million people receive their tap water from this source which is held in the commons and free from privatization.

“We want the water system that impacts our lives. We brush our teeth. We wash clothes. We all inhabit this region and the water should be held in the public trust. It should be free from privatization. That’s just point blank. Private concerns are private concerns, but because the water is a public concern, it should be publicly held. Nobody has the right to privatize such an important resource as water. Nobody.”
“What’s really interesting is we are are gearing up for a battle to maintain DWSD as the municipal enterprise agency that is run for the benefit of the public and not for the benefit of private interests. The Peoples Water Board is still working on access and affordability. We are still working on pollution and conservation, but right here the battle is about water being held in the public trust. There is this belief being propagated by private interest that the public is inefficient. There’s this belief that the public is corrupt. There’s this belief that the public is inept. All of that is false. Just because because a municipal authority that is not for profit controls an asset does not make it inefficient, corrupt or inept. Some things should be held in the public trust.”