Mayor David McCauley reads a statement saying the city plans to defend its utility territory at Thursday's council meeting.

BUCKHANNON – The City of Buckhannon and Upshur County Commission could be headed for a legal battle over the county’s recent decision to give the Tennerton PSD utility service access to Route 33 West.

City council unanimously approved a motion to support the city’s utility boards as they take “anticipated actions … to protect their respective utility territory rights along Route 33 West and to challenge this decision by the county commission.”

“These actions could very well involve both litigation involving local entities and administrative action before the West Virginia Public Service Commission,” mayor David McCauley told council members at their meeting Thursday.

According to the mayor, the current situation began when a local company approached the city about a large potential development on Route 33 toward Weston.

“About two years ago, our city officials were contacted about a proposed development on the south side of Route 33 West out near the J.F. Allen property,” McCauley said. “J.F. Allen was proposing a huge development with scores of buildings, and of course they required utilities.”

The city began drawing up plans and figuring out how to finance the project, initially coming up with two alternatives: annexation (as occurred with Lowe’s) or a financial partnership (where businesses contribute to the project, as happened along Brushy Fork Road), McCauley said.

According to McCauley, the project manager at J.F. Allen later left the company, and the project stalled until this summer, when the city attempted to “jump-start” discussions. About the same time, McCauley claimed county commissioner Terry Cutright met with Terry Gould, the manager of Tennerton and Hodgesville PSDs, about their potential involvement in the project.

“In September, city officials were stunned to learn that a meeting before the county commission to discuss removing utility territory of Buckhannon was scheduled,” McCauley said.

The city eventually devised a third payment option — a surcharge for new customers — but after a series of meetings, the commission ultimately voted to begin the process of assigning the territory to the Tennerton PSD, as detailed in previous coverage.

McCauley criticized the commission’s decision on several levels, noting that:

  • The Tennerton and Hodgesville PSDs remain delinquent in payments even though the city forgave “tens of thousands of dollars in interest and late fees” when told the PSDs might otherwise declare bankruptcy.
  • The Tennerton PSD proposal would require a substantial rate increase for all 891 PSD customers, while the city proposal would leave rates unchanged for current customers.

“Both PSDs currently have substantial financial and performance challenges,” the mayor noted. “The city for years has been vigilant in insisting that [inflow and infiltration issues] needed to be addressed in the Tennerton’s decades-old system. Similarly, the Hodgesville PSD experienced immense water loss in a decrepit system where for every gallon of water delivered, a half-gallon ends up leaking into the ground.”

McCauley’s statement says city officials were and still are “dismayed and outraged” at the commission’s decision.

“During the past 25 years, our city utility boards have undertaken 14 projects in this territory collectively valued at millions of dollars of improvements,” it reads. “To be kind, the action of the commission is incredulous and defies rational explanation. To be blunt, it’s a slap in our city’s face.”

Read McCauley’s full statement to council here.

Council unanimously supported the mayor’s statement and his request to back the utility boards in any upcoming actions they might take to “protect and preserve” their utility territory.

“Excellent narrative, David,” councilman David Thomas told McCauley. “It really puts out the information that’s needed by our community… I support you 100 percent.”

City recorder Randy Sanders said he’d attended the commission’s Oct. 31 meeting.

“At that meeting, I was appalled and surprised to learn that the action was about to be taken without – as far as I know – any consideration of the current utility customers of the Tennerton PSD,” Sanders said. “I mean, they’re going to be surprised, and I just hope that if it comes to the point where there is a public meeting about this, every customer is notified and given an opportunity to express their opinion as to whether or not they want to help finance this project largely for commercial developers.”

(A representative for The Thrasher Group previously confirmed that with the Tennerton PSD’s plan, a 25 percent rate increase for all Tennerton PSD customers was necessary to support the expansion into the Route 33 West area.)

Councilman Robbie Skinner also supported McCauley’s statement.

“After reading this along with you, I think it’s excellent, and if it’s a motion you’re looking for to bring this into fruition, I’ll be happy to do it,” Skinner said.

McCauley emphasized he wanted a motion to “stand by our sanitary and water boards and to take all action necessary legal and administrative actions to protect our city’s utility territorial rights.”

Thomas seconded Skinner’s motion, which passed unanimously via a roll call vote.

Councilman CJ Rylands said the Tennerton PSD hasn’t demonstrated that it is capable of operating efficiently.

“If we have Public Service Districts that don’t share information – financial or otherwise – and they haven’t shown the capacity to manage or maintain their system, and yet we’re going to invest – or the federal government’s going to invest – $5 million through a grant to expand something that isn’t working already … that doesn’t make a lot of sense to me,” he said.

County commission president Sam Nolte on Friday said the county hadn’t voted to take utility service access away from the city, nor could it.

“The county is not taking away territory; we’re enabling the PSD to serve a currently unserved area of Upshur County,” Nolte said. “The county commission does not determine which entity provides the service; that’s the role of the PSC (West Virginia Public Service Commission).”

“The expansion of Tennerton PSD does not change any authority the city has to provide service to that area,” Nolte added. “They’re allowed, by statute, to extend utilities 20 miles outside of the city limits. They still have the right to serve the area in question, and now, so will the (Tennerton) PSD. Ultimately the county commission does not determine which utility provides service – that’s the role of the PSC.”

Commissioner Terry Cutright echoed those statements, saying “it’s wrong” to say the commission “is taking anything away from anybody.”

“All we’re doing is giving them another option to have a system put in,” he said. “In order for the PSC to make a ruling on it, we have to extend their boundary. We don’t want to take anything away from anybody, and in fact, we can’t take anything away from anybody.”

Cutright said he’d “just been looking for information” when he had discussions with PSDs about servicing the Route 33 West area.

“I would go to anybody or any PSD that serves or has capability to serve the area,” he said. “I want to make sure I’m doing things right… I wasn’t brokering any deals, I wanted to know what could be done.”

“It’s all about offering options,” he added.

Late Friday afternoon, Tennerton PSD manager Terry Gould disputed parts of McCauley’s statement.

“Terry Cutright asked us to look at [putting sanitary sewer service] out there, and the city took offense to that,” Gould said. “We’re not in competition with the City of Buckhannon, even though the City of Buckhannon seems to think so.”

Gould also insisted the PSD “was not in dire financial straits.”

“We’re not in financial trouble,” he said. “We do owe the City of Buckhannon’s Sanitary Board three months in arrears, and we are paying current bills, no matter what they tell you.”

Gould said the PSD wasn’t attempting to take the municipality’s utility territory; they were just trying to serve areas that weren’t being served.

McCauley, however, said he stands by the assertion that the city’s utility territory is being reassigned and customers would have no choice among competing utilities.

“They (the county commission) have the statutory authority, and there can be no overlap,” he said. “It’s prohibited by law. It’s a monopolistic kind of a thing, and if they assign any part of that territory to Tennerton, they’re assigning all of it to Tennerton. They may not fully understand the import of what they have done.”

At the commission’s Oct. 31 meeting, its attorney, Bob Rodecker, of Kay, Casto & Chaney said after an engineer draws up the new boundaries of Tennerton PSD, that would be included in a proposed order the commission would vote on. If it passes on first reading, then a public hearing on the matter and second reading would take place 20-40 days later.

Should the order pass on second reading, a copy of the order would be submitted to the state Public Service Commission, which must approve the boundary redrawing. Finally, if the boundary redrawing is contested, the PSC may hold its own hearing, which would likely take place in Upshur County, Rodecker said.