Cherokee Village Water Works

trout, It's the first I have heard of it. Not quite the point I was trying to make though. It is not whether you are able to pay the water bill, as much as some of the retirees either misplacing the bill or overlooking by accident. The folks that I have talked to that think it is a strange policy. Just another reason to add an extra charge to a group of folks that don't need any extra financial challenges. I guess I'm not talking about the concerns of the same group of folks as you.

Chuck they do the same thing here in Nixa. You have a due date and a late date and they will not send you a notice they just turn the water off. I guess people are going tohave to decide if they want to pay their water bills on time or buy that pack of smokes. (lol)

Hi Paul, The water report was good news for us. I had to comment on their new policy though. Many of the people I have talked to recently think that their new policy is crazy. If a person overlooks their bill for any reason, they face shutoff of service without any further notice. I have never heard of that before. Just wondering what others are thinking about this.

Hi Forum,


We all got our recent Water Quality report from CV Water Works and again it is amazingly good. They also announced new policies about shut-off notices and late fees. Do you feel their new approach is fair? It seems to me with the large number of second-homers it may be a bit to hair-trigger. Nonetheless, they do a great job for us.

Hi Mike,

Your response seems to be based on some personal experiences. It would be great if trout would chime in on this one, also. I've heard the story told both ways. Some outside the Village say that they are not treated with proper respect by those inside, and those inside have heard snide comments about outsiders. The bottom line is that neither affects daily living very much. The issue is more local versus regional political control. I'd rather have it local.

Paul2CV wrote:One thing that is often left out of this discussion is the "feeling" outside of the Village about the Village. Frankly, I don't see much mainstream good will toward us and wouldn't want to be at the whim of those voters.

You are dead on right, Paul. Lots of people outside of CV hate CV for what it is or perceived to be, who often believe CV is not true northern Arkansas "like them" because of who lives here and from what region of the country some of the people that live here moved here from. I think that's a ridiculous concept and have always mocked and made fun of that type of attitude. It's mostly due to ignorance and the fact that some idiots, for whatever reason, still feel a need to cling to the civil war like it actually matters in their daily lives in 2011. Of course it does not and I simply ignore this mentality and laugh at its ignorance and stupidity. If people want to keep themselves down in life socially and financially just to cling to some old vision of what some long dead relative's view of life and politics was 150 years ago, I can't help them and I won't stop them. It doesn't really matter in their daily lives but you can't convince people like that. What I can do is control what I do and to not waste time on ignorance and foolish behavior. I ignore and do not associate with people like that. It's a waste of time because those people with those worn out views are thinking backwards, not forwards, and thankfully that mentality is slowly dying off. The generations that continue to follow care less and less about who is from where etc so it is changing and for the better, even in rural northern Arkansas. We have the population and the voting clout as a group in CV if used wisely and collectively. In my opinion, Cherokee Village will be the only town in this area to move on, sustain and grow a little, and to thrive with what we have in the coming decades. Of course, there needs to be problems fixed and an ER/hospital etc but we will improve. Hardy, for example, is shooting themselves in the foot with their idiot leadership and town infighting, and the other little towns will stay pretty much as they are. CV has the smarts, population, and the amenities to grow. Hardy, I'm afraid, will not be better off a decade from now unless there is a group with a level head on their shoulders strong enough and convincing enough to sort out the trash and bring the town's collective thinking and leadership into this century, and actually do something positive that will attract real visitors with real money. I hope I wasn't too blunt, but sometimes the truth cannot be sugar coated.

I have no ill will towards Water Works. The water in the village is excellent.

Hi trout,

I have been pondering what you have to say. One thing that is often left out of this discussion is the "feeling" outside of the Village about the Village. Frankly, I don't see much mainstream good will toward us and wouldn't want to be at the whim of those voters.

Let's get rid of animal control, the police department, road department and the courts to start with. The SO can provide law enforcement, contract out for any road work, and if we don't have a PD then we don't need a city court. The idea that the city would do better because it could get state funds has not worked out like the "white paper" proclaimed it would. Now we have fees, taxes which we NEVER had before we became a city. All the city has done has created COSTLY problems. As to code enforcement do you really think it is worth all the money that has been spent to "clean up" the village. The village is getting older by theday and I don't forsee any big projects coming here to save us any time soon. Do you think we will really get a NG line here? How about that Hospital? Fred's is openingon the highway yes it is in the village but that does not say much. Just like our "airport" a lotof money has been spent there and for what?

This was suppose to be a quite retirement village, a little golfing, fishing and enjoyment for people who have worked very hard their entire lives and now it has become a place that they left. A very sad commentary. Glad MR Cooper is not here to see what has happened to this village.

Hi trout,

I know that you are concerned about fees and taxes and favor SID. My understanding, however, of the interplay between SID and the City is a division of labor around things that need to be done. What work exactly is the City doing that you think they shouldn't be doing or that SID would do any cheaper? I keep looking for specifics. My hunch is that when folks look into exactly what is being done and how much it costs, they will find out they want it done and the costs are reasonable. The problem right now is revenue. Perhaps there needs to be a greater share of SID fees going to the City.

Paul I would like LESS SERVICES and LESS TAXES AND FEES from this city government and I use the word government very very losely.

Hi Forum,

I love our Water Works. I think everyone pretty much does. It is good service, good water, and a good price. Equally, I have made no secret that I am a supporter of our City Government, and particularly the Code Enforcement Office.

The issue here seems to me to be twofold. Over the years, the Water Department has changed ownership. If you look at the Early History of Cherokee Village section of this Forum, you will find a history of that changing from the original entity to outside private hands to the present ownership. The question of what the Water Department now is would be a legal question and even the State doesn't seem to be able to render a decision or opinion on that at this point according to the article Mike posted.

Meanwhile, the City needs more revenue. The bottom line is that we need to face into supporting our City government properly. They run on a shoestring, no one wants them to provide less services, and they need the revenue from tax payers.

Cherokee Village was a fairly unique legal construct in the first place. It is now the last existing Suburban Improvement District left in the State of Arkansas of its kind. The legal scholars will need to get their best thinking caps on. In the meantime, let's not pit two fundamentally good agencies against each other. We need them both.

Good article on this impasse

"Rose explained to Adams that, under the advice of the association's attorney, they were told not to collect the fee, out of concern it would not stand up in the event the Water Association was sued for collecting the franchise fee."

http://www.areawidenews.com/story/1775355.html

Here is a recent opinion on whether the city may charge a franchise fee to Cherokee Village Water Works, which in turn would be passed on to us, right?

This is interesting info and it is in text form and the link direct to the pdf from www.arkansas.gov

http://ag.arkansas.gov/opinions/docs/2011-109.pdf

Opinion No. 2011-109

October 19, 2011
The Honorable Linda Collins-Smith
State Representative
Post Office Box 90
Pocahontas, Arkansas 72455-0090

Dear Representative Collins-Smith:

You have asked for my opinion on whether a city may charge a franchise fee to a
county public facilities board that operates a waterworks facility. I have
paraphrased your question as follows:

An entity known as “The Cherokee Village Waterworks Facilities
Board of Sharp County” provides water to the City of Cherokee
Village. Arkansas Code Annotated section 14-200-101 permits cities
to charge “public utilities” a franchise fee for the privilege of using
the city’s rights of way. Does this entity qualify as a “public utility,”
as that term is defined in section 14-200-101, such that the City
could charge it a franchise fee?

RESPONSE

Unfortunately, I cannot provide a definitive answer to your question. While there
are good reasons to think that the answer to your question is “yes,” there are also
good reasons to think that the answer is “no.” All I can do is explain those reasons
because, in my view, neither set of reasons is strong enough to clearly outweigh
the other. Legislative clarification is warranted.

DISCUSSION

The scenario you describe appears to be very rare, if not unique. In the early
1980s, Sharp County, Arkansas formed a waterworks facilities board to serve the

The Honorable Linda Collins-Smith
State Representative
Opinion No. 2011-109
Page 2

area that is now incorporated as the City of Cherokee Village.1 Apparently, that
county waterworks facility has continued to serve the area after it incorporated in
the late 1990s and on up to the present. This is an unusual scenario because,
typically, cities are served either by their own municipal water utility or by a
privately owned2 public utility that provides the water.

A “franchise fee”—which is a fee the City wishes to charge—is a fee assessed by
cities against a “public utility” for the privilege of using the city’s streets and other
rights of way.3 In A.C.A. § 14-200-101 (Supp. 2011), the General Assembly gave
cities the authority to charge franchise fees to a “public utility”: “Acting by
ordinance or resolution of its council…every city…shall have jurisdiction
to…determine the terms and conditions upon which a public utility may be
permitted to occupy the streets…or other public places within the municipality,
including…[a] reasonable franchise fee.”4

Your question is whether the county water facilities board (“Board”) counts as a
“public utility” under this statute, so that the City may charge it a franchise fee.
The statute defines “public utility” by giving two general definitions and then
providing three exceptions from those definitions. As for the general definitions,
the statute says, first, that “public utility” means “any electric, gas, sewer, or
telephone company” and, second, that it means “any company providing similar
services.”

For purposes of this opinion, we can make three observations about these general
definitions. First, in order to know whether the Board—or any other entity—
counts as a “public utility,” one needs to know what the statute means by the
undefined term “company.” Did the legislature intend this term to connote
“corporation” or “commercial” or “privately owned”? Or was the term intended to
mean just any kind of association or organization? Second, is water one of the

1 The authority governing such boards is found at A.C.A. §§ 14-137-101 to –123 (Repl. 1998 &
Supp. 2011).
2 I distinguish a “privately-owned” public utility from a “publicly-owned” public utility. By the
latter, I mean one that is owned by a governmental entity.
3 See City of Little Rock v. AT&T Communications of the Southwest, Inc., 318 Ark. 616, 621, 888
S.W.2d 290, 293 (1994).
4 A.C.A. § 14-200-101(b)(1) (Supp. 2011).

The Honorable Linda Collins-Smith
State Representative
Opinion No. 2011-109
Page 3

“similar services” referenced in the definition? This issue arises because the statute
does not enumerate “water” alongside the other kinds of utility (electric, gas,
sewer, etc.) when it enumerates the kinds of services that a “company” must
provide in order to qualify as a “public utility.”

These two observations lead to the third: the following is a necessary (but
insufficient) condition for the Board to count as a “public utility”: the Board must
be a “company” under subsection 14-200-101(a).

So the threshold question is whether there is good reason to think that the Board is
(or is not) a “company” under this statute. While section 14-200-101 does not
define “company,” it is defined in the statutes regulating the Arkansas Public
Service Commission (“PSC”). Indeed, the definition of the wider term “public
utility” is critical to the mission of the PSC. Given the similar subject matter, a
review of the PSC statutes might offer insight into what the legislature intended
with regard to both “public utility” and “company” as those terms appear in
subsection 14-200-101(a).

One PSC statute, A.C.A. § 23-2-302, attempts to define “company” in the context
of the PSC’s jurisdiction over “public utilities” that provide water to
municipalities:
(a) The jurisdiction of the commission shall extend to and include:
(1)(A) All matters pertaining to the regulation and operation of
all:
* * *
(xvi) Water companies furnishing water within municipalities
for municipal, domestic, or industrial use.
* * *
(b) For the purpose of this act…every person, firm, association,
company, partnership, corporation, or other organizations engaged in
the operation of any public utility above indicated shall be deemed
to be a company within the meaning of this act.5
5 A.C.A. § 23-2-302 (Repl. 2002) (emphasis added).

The Honorable Linda Collins-Smith
State Representative
Opinion No. 2011-109
Page 4

Unfortunately, this definition is not entirely helpful because the legislature has
used the word “company” in the definition of that very word, which makes it
difficult to determine legislative intent. Nevertheless, this quasi-definition sets out
the following two-part equation for what constitutes a “company”:
“Company” = (a person, firm, association, company, partnership,
corporation, or other organization) + (operating as a public utility)
The second part of the equation—“operating as a public utility”—does, however,
offer some insight into what the legislature meant by a “company.” This is because
the term “public utility” is defined in great detail. And it is defined in such a way
that no water facilities owned by a city or town count as a “public utility”:
As used in this act, unless the context requires otherwise:
* * *
(9)(A) “Public Utility” includes persons and corporations…owning
or operating in this state equipment or facilities for:
* * *
(ii) Diverting, developing, pumping, impounding, distributing, or
furnishing water to or for the public for compensation. However,
nothing in this subdivision shall be construed to include water
facilities and equipment of cities and towns in the definition of
public utility.

For purposes of its jurisdiction, the PSC appears to interpret this bolded section to
exclude every publicly-owned public utility that provides water from the definition
of a “public utility.”6 Accordingly, for purposes of the PSC, the Board is not
considered a “public utility,” which means that, under the equation given above,
the Board is also not a “company.”

6 The PSC’s website reflects the Commission’s view that it lacks jurisdiction over publicly-owned
public utilities: “The Commission does not regulate municipal utilities of a city, a town, an
improvement district or any other public or quasi-public corporation which is created or
organized under the Constitution or laws of the State of Arkansas.” Arkansas Public Service
Commission, http://www.apscservices.info/g_w.asp (last visited October 5, 2011).

The Honorable Linda Collins-Smith
State Representative
Opinion No. 2011-109
Page 5

The PSC’s interpretation of “public utility” and “company” as excluding all
publicly-owned public utilities is instructive for us when analyzing section 14-
200-101 because the legislature linked these two statutes in subsection 14-200-
101(c). There, the legislature permitted a “public utility” that was assessed a
franchise fee to appeal that assessment to the PSC. Accordingly, because both sets
of statutes relate to a similar subject matter—namely, identifying what entities
count as “public utilities”—we should try to read the two sets of statutes together,
if possible.7

What all this tends to show is (1) that the terms “public utility” and “company,” as
used in the PSC and franchise-fee contexts, are related; and (2) that, given that
relationship, a franchisee fee cannot be assessed against a publicly-owned public
utility.8 If the foregoing were all we had to go on, the answer to your question
would be “No, the City probably cannot charge the Board a franchise fee.”

But there is a different way of reading subsection 14-200-101(a) that yields a
different answer. This reading is grounded in the exceptions to subsection 14-200-
101(a)’s definition of “public utility.” After giving the two general definitions of a
“public utility” for purposes of the franchise fee, subsection 14-200-101(a) lists
three exceptions to the definition: “except a company excluded from the definition
of ‘public utility’ under § 23-1-101(9)(B)(ii), a consolidated utility district under §
14-217-101 et seq., and a water or light commission under § 14-201-101 et seq.” If
the foregoing analysis of the seeming connection between the PSC statutes and the
franchise-fee statute were correct, then there would be no need for these
exceptions. The first exception listed above references an entity that is already
excluded from the definition of a “public utility” in the PSC statutes at subsection
23-1-101(9)(B)(ii). And the second two exceptions are for publicly-owned public
utilities, which means that they would not count as “public utilities” under the PSC

7 This is the statutory canon requiring statutes be read together when they are in pari materia. See,
e.g., Hinjosa v. State, 2009 Ark. 301, 13, 319 S.W.3d 258, 265.
8 One of my predecessors opined that a city could charge a franchise fee to its own publiclyowned
water utility. Op. Att’y Gen. 2003-172. This conclusion was reached because, according to
my predecessor, “water services” are a “similar service” as contemplated by subsection 14-200-
101(a); and, under a dictionary-definition of “company,” a publicly-owned entity is a “company.”
However one might evaluate these two arguments, the conclusion they lead to is, in my view,
dubious. The purpose of the franchise fee is to charge an entity for the privilege of using the city’s
rights of way. It makes little sense to say that a city can charge itself for the privilege of using its
own rights of way.

The Honorable Linda Collins-Smith
State Representative
Opinion No. 2011-109
Page 6

statutes, at least to extent that they provide water services. So the fact that the
legislature specifically excluded these kinds of entities suggests that “public
utility,” as used in the franchise-fee context, is broader than the term when used in
the PSC context.

Under this analysis, the nature of the exceptions give us some reason to think that,
in the franchise-fee context, “public utility” includes publicly-owned public
utilities. If that is the case, then the Board would be included in the term “public
utility” and, therefore, subject to the City’s franchise fee.

In summary, there are two plausible, but opposed, answers to your question. The
two views diverge on the question whether the term “public utility,” as that term is
used in the PSC statutes and in the franchise-fee statutes, is identical. If the terms
are identical, then the Board cannot be charged a fee. If the terms are not
identical—or more specifically, if that term is broader in the franchise-fee
context—then the Board probably can be charged.

In my opinion, the arguments for and against each of these views are fairly evenly
matched. Thus, I cannot conclusively opine on your question. Legislative
clarification is warranted.
Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/RO:cyh

Hi Forum,

We got our Water Quality annual reports in the mail the other day. Once again, we can see that we have very high quality water in the area. It is actually unusual in rural areas to have water so free of fertilizer runoff chemicals. Good job Water Department.

If you go to the Early History of Cherokee Village post you will see an interesting section on the history of the Water Department. It has changed hands a few times. Here's the relevant info from the Early History of Cherokee Village:

CHEROKEE VILLAGE WATER WORKS

By: Steve Rose

In 1960 John A. Cooper Company established Quapaw Water Company with Raccoon Springs being the main source of water for residents of Cherokee Village.

In 1973 Roaring Springs was developed and became the main source of water for Cherokee Village residents.

In 1984 all the water line construction was completed thus making water service available to all areas with paved roads in Cherokee Village.

in 1985 Quapaw Water Company was sold by Cooper Communities (John A. Cooper Co.) to General Water Works of Pennsylvania and was investor owned.

From 1985 to 1988 General Water Works made several needed capital improvements to the water system.

In 1988 several public meetings were held and it was determined by the property owners it would be in the best interest of the Village and its residents to form a water association and purchase the water company from General Water Works. In doing so, the company changed from Quapaw Water Company to Cherokee Village Water Association and earned revenues were turned back into the system which resulted in major improvements to the system.

In 1994 re-organization and refinancing of the existing system was done in order to take advantage of lower interest rates which resulted in a savings to our customers of almost $500,000 over the life of the loan. Thereafter, the company became Cherokee Village Waterworks Facilities Board of Sharp County, Arkansas, a government entity of the county. This enabled the company to sell tax exempt bonds for future expansion or construction as needed, at the best interest rates."