January 13, 2006
RE: Authority of County Relative to Rural Self-Contained Wastewater Systems
Dear Superintendent of Water and Wastewater:
You have asked what authority your County has relative to self-contained wastewater systems located in the county but outside your City and other incorporated municipalities. The county legislative body passed a resolution requiring that these facilities be deeded to the County Board of Public Utilities upon completion (Resolution 05-11-06). Under the law that I think applies, the answer depends upon where the wastewater system is located. If it is within five (5) miles of the city, the county should give the city the opportunity to own it. If not, then I think that provision of the resolution is legal.
I believe the County Board of Public Utilities was created under the Urban Type Public Facilities Law (Tennessee Code Annotated Section 5-16-101 and the following sections). I checked the County private acts and found nothing creating the CBPU, and you indicated in our phone conversation that it is not a wastewater authority. That leaves only the Urban Type Public Facilities Law. The name " Board of Public Utilities" also indicates this is the governing law because that is the wording there. So I will assume that this law is applicable.
T.C.A. Section 5-16-101 authorizes counties to " acquire, operate and maintain public facilities in any area or areas within their borders ...." The words " public facilities" include sanitary sewers. (T.C.A. '5-16-101(a)(2). T.C.A. '5-16-111, however, provides:
A county may not extend any public facilities, as provided for in this chapter, within five (5) miles of any part of the boundary of an incorporated city or town unless such incorporated city or town has failed to take appropriate action to provide a specified public facility or facilities in a specified area or areas for a period of ninety (90) days after having been petitioned to do so by resolution of the county legislative body or other governing body.
The words " extend any public facilities" in the above quotation are modified by the words " as
provided for in this chapter." Under section 5-16-101, one of the ways of extending public facilities is to acquire them, as from a developer. Therefore, if a self-contained wastewater system is within five (5) miles of the city' s boundary, the county in my opinion should follow the requirements of Section 5-16-111 and give the city the opportunity to acquire the system.
If the self-contained system is outside the five-mile limit, the city would have little recourse other than an agreement that may be entered between the city and county under T.C.A. '5-16-107. This appears to be so even if the city' s sewer lines extend beyond five (5) miles from the corporate limits. I know of no state law that provides protection for the " service area" of a city' s sewer utility other than those cited here and similar ones that apply in other situations. If the city later annexes the area of the self-contained system, then T.C.A. '5-16-110 comes into play. This gives the city priority in providing sewer services within its corporate boundaries. The county is required to sell the system to the city under agreement or arbitration if agreement cannot be reached. A significant snag that could happen in this situation is if for some reason the county utility system had a rural development loan and was protected from takeover under 7 United States Code Annotated, '1926(b). But I will leave that discussion for another day.
I hope this has been somewhat helpful. If you have further questions, please contact us.