Reflections on drought law and politics
Let’s start with a confession. I am a recovering lawyer. As much as I try to deny it, like an addiction, I can’t get away from it.
In 2000 and 2002, during droughts in Maryland and Virginia, the Mid-Atlantic Carwash Association played important roles representing car wash operators. I’d like to share a couple of things we learned the hard way from that time.
When faced with a major public issue like drought, you need to hang together or, as Ben Franklin said, you will surely hang separately. Sometimes facts are not nearly as important as perception, although if you are credible, you can use the facts to sober the lynch mob. While it is difficult to get a fair audience during the crisis, you need to stay calm and make a reasoned and rational argument for fair treatment.
Facts you need to know
- Politicians care first about getting re-elected. They don’t like getting calls from soccer moms complaining, “How can you let that car wash waste all that water?”
A water crisis is a very scary time for a politician; an easy time to panic. Government is supposed to provide basic public services. More often than not, the failure of government to build sufficient water capacity to supply the development that it allowed goes back many administrations. The anger that you sense from the Mayor is probably misdirected at you, and intended for his predecessors in office. To be effective, you need to understand his situation and the extent of panic and frustration.
- Carwashes are not intrinsically appealing from a political standpoint. It is very easy to say the car wash is “not an essential service” and should therefore be closed.
- Your water authority probably has no idea how much water is used to wash cars. They don’t keep records of their commercial customers by the type of business. The water authority is in business to sell water. It is not until the drought hits that they become conservation minded. So, when the drought emergency is declared, the Mayor wants to know how to reduce water consumption, and who is using too much water, and how can they stop those awful water wasters. The water authority usually doesn’t have a clue. That leaves the Mayor relying on common knowledge — what everybody knows and seems obvious to everyone. Common knowledge is based on perceptions, often misconceptions, not real facts. Preconceived notions are very hard to unravel during the crisis.
- Carwash operators are an independent and sometimes ornery lot. We like to be left alone to run our little businesses and don’t like being told what to do.
- The drought crisis season is typically July to September. These are usually average to below average months for car washes since we are busiest in the winter and the spring pollen season. For example, my sales in August, 2000, were 22% less than May and 38% less than February. August was 10% less than my average for the year.
When the Mayor wants an immediate 10 or 20% reduction in water use, what do they mean? Compared to our annual average, compared to the same period last year? Answer: they don’t know either; just reduce the strain on the reservoir right now. It’s government in panic mode. Don’t expect reasonableness.
- If government bans home car washing, won’t professional carwashes have a huge spike in water use? Not really. During a crisis, we find we do get new customers who washed at home. But, our regular customers come less often They understand the situation. It ends up being a wash.
- Mayors of small towns are not very impressed with the water efficiency of our operations. When they want all commercial users to cut back 20%, they don’t care how you do it.
What is further confounding is they don’t care that we learned how to achieve significant water savings in the last drought. Once our members learned how to wash cars using less water, they stayed with the program even when restrictions were lifted. Now, further reductions are very difficult.
- Carwashes use about one-half of 1 percent of the municipal demand for water. Even if all are closed, it’s not really going to help the problem in the reservoir.
- There are major players in your community which consume a lot more water than car washes, but they have made themselves seem to be essential. After all, what can be more essential than the public’s thirst for bottled sugar and diet beverages? The water comes from the same reservoir and gets shipped all over the region.
- When we are concerned about the level of the watershed it refers to the water level in the reservoir, the river, and the groundwater. It’s all the same body of water with a thin layer of dirt that floats on top. We live on that thin layer of dirt. Water wells, whether private or municipal, take water from the watershed which has the same effect on the river as if it were drawn directly from the river. Very deep wells pull from different levels of acquifers, but don’t kid yourselves, the plumbing is all connected underground.
- The most significant way to reduce water consumption in a region is to reduce or ban residential lawn sprinkling — an immediate 20 percent savings.
- If you see a lot of growth springing up around you, ask where the water is coming from to supply these new homes and businesses.
For a time during a drought, the city will impose building moratoriums, yet when it rains, the building ban is lifted. Unless the city invests in water infrastructure, such as dredging the old reservoir, digging a new one or buying additional water, the next drought only exacerbates the problem.
Legally, it’s not easy to define your rights.
You have an occupancy permit to operate. You paid a connection fee, impact fee or a system development charge, ranging from tens of thousand to hundreds of thousands of dollars, for the right to buy water.
You have a mortgage obligation which does not have a drought relief clause. Your employees depend on the carwash to meet their own debts and obligations.
You also pay property taxes and personal property taxes. If you live in the same jurisdiction, you are a registered voter.
Unless you bring your own violin, don’t talk to the mayor about how this is your life savings invested and that your retirement depends on the success of the carwash.
Do you have an unqualified right to draw water? Probably not. Shouldn’t you have the same rights as all other commercial users? You should.
The argument that seems to have the most success with water regulators is this: carwash operators are in business legally; we really don’t use very much water, per car and per month; we should be treated the same as every other business.
If the crisis reaches the point where mandatory restrictions are imposed on commercial water users, then the same rules should apply to carwashes.
The government risks a messy argument when it tries to distinguish essential from non-essential businesses. What is essential? Pharmacies and grocery stores? That much is easy.
After that, it’s every man for himself.
Fast food restaurants – no, but fine restaurants? Ah, why? Is it “essential” that we be able to eat out?
Mayors realize they cannot force major disruptions in the workforce. In 2002, we found that the 17 car washes closed in Charlottesville, VA employed about the same number of workers as the water and soda bottling plant.
No one thought about it that way. Everybody’s job is essential — for them.
Do’s and don’ts
- Do select a spokesperson.
When you meet with the water authority or mayor, let one person do the talking on behalf of all carwashes in the area. Bring in an officer of your regional association. If he or she lives somewhere else, all the better. Time and again, we have seen the local operators lose resolve when face-to-face with their mayor. You have to live with these officials. Let someone who can be objective be your advocate.
- Don’t try to save the day by yourself.
If you lose your composure and yell at the Mayor, we are all seen as unreasonable. Dealing with the administration is that much more difficult from that point forward.
- Don’t be afraid to ask for fair treatment.
When the mayor says, “What about the children?” You have to resist the bait and just say you hope to be treated fairly, like every other business.
- Do get their attention.
When the water authority refuses to meet with you, do something to get their attention. Make it in their political interest to talk with you.
In Charlottesville, the MCA ran radio ads on the fairness issue. In about two weeks it started to rain a little, we got a meeting and they lifted the closing. What caused the change in attitude? We don’t know. They were clearly embarrassed. It seemed as though they welcomed the rain as an opportunity to talk to us.
- Don’t go off on your own. Stick together.
The saddest lesson we learned came from the U.S. District Court in Charlottesville. Courts are reluctant to second-guess municipal authorities, especially when it concerns an emergency situation like a drought. The Court held that the City’s actions were rationally related to a legitimate government interest.
The court found that the City could have believed that prohibiting vehicle washing was rationally related to the conservation of water. “It is rational for a community to decide that precious water resources should not be diverted to the washing of cars during a declared state of emergency,” the court wrote
In this case, an operator was trying to make a case that carwashes should be treated fairly.
Unfortunately, the facts of the case did not lead to a sympathetic review. When the City imposed Phase II restrictions and prohibited all vehicle washing, a number of operators went to great lengths to stay open.
They rented tankers and brought in water from other parts of the state not affected by the drought. They stayed open, without relying on the municipal water authority.
This was not a good case to bring to federal court and resulted in a very unfavorable decision which will haunt car wash operators for a long time. The ICA and the MCA had felt that this was not the time to sue the City, but to no avail.
When you are invited to participate in a state or local drought advisory panel or water use panel, go. The only way to be treated fairly is to be visible. Keep in mind that you are there representing other operators. We need to be seen as reasonable people who care about the larger picture.
David DuGoff is the owner of College Park Car Wash, Inc. He is a past-president of the Mid-Atlantic Carwash Association, and continues to serve on its Board of Directors. David participated in the Governor’s Drought Commissions for both Maryland in 2001 and Virginia in 2003.