Little Pink Houses, Part III: New sewer technology fuels feuds in state

Behind the scenes, the growing use of onsite wastewater treatment systems in Tennessee has ignited a turf war across the state between cities and public utility districts that spans the realms of governmental philosophy and political gamesmanship.
Some municipal officials have charged the systems not only stimulate residential sprawl but impose on urban growth boundaries established under state law.
At the heart of the quiet war are major players in state politics, each with their own interests in seeing onsite wastewater treatment propagated or held in check.
A paper trail of government documents, official correspondence and court records spread out across Tennessee show a feud typified by charges of conflicts of interest and special interests over smart governance.

The Wilson Water War

Lebanon Mayor Don Fox is a leader in municipal government in Tennessee. He is also a leader in opposing the spread on onsite or decentralized sewer systems.
The man in line to one day become president of the Tennessee Municipal League maintains state laws originally enacted to better control residential growth also granted municipalities the exclusive right to provide utilities – namely sewer service – to areas likely to be annexed in the future.
Known as Public Act 1101, the legislation was sponsored by former State Sen. Robert Rochelle, who also served during his senate tenure and continues to serve as the attorney for the Water and Wastewater Authority of Wilson County.
According to Fox, Public Act 1101 required cities to formulate a 20-year-growth plan indicating how it planned to grow and develop as time progressed and identifying a means of providing public utilities to those areas.
"The purpose of that was to slow down, minimize and, if possible, eliminate sprawl, which is spreading the growth out over the countryside instead of making the growth compact," Fox said. "Smart growth is compact growth … (Public Act 1101) is a smart law. It is something that put Tennessee ahead of the curve nationally."
In recent years, however, the installation of decentralized sewer systems overseen by the county water authority in areas within the boundaries Fox described has rapidly deteriorated the relationship between Lebanon and the authority.
In 1995, Rochelle, in his capacity as the authority's attorney, issued a cease and desist letter to the City of Lebanon that charged the city was illegally constructing "water and/or sewer facilities inside the territory" of the authority.
"The Authority Management is beginning an immediate review of all other lines which may have been extended unlawfully into Authority territory, including the South Perimeter Park area and the Leeville Pike (Eastgate) area," Rochelle wrote in his letter to city officials dated Nov. 2, 1995, and obtained by The Lebanon Democrat. "Demand is hereby made that the city convey all such facilities to the water authority at the proper value. We will be glad to work with the city in insuring a prompt and orderly transfer of the customers on these lines."
Fox responded four days later with a letter addressed to Rochelle's Legislative office, harshly criticizing Rochelle and the authority for using "a strong arm tactic" and suggesting the authority's demands would place a sewer moratorium on Lebanon.
In his reply, Fox contended Rochelle's affiliation with state government and local authority represented a "very serious conflict of interest" in the matter and charged the authority was overstepping its bounds by providing wastewater treatment services.
"You would better serve the purpose and intent of water authorities by directing your efforts towards serving those county residents who have no way to get access to transmitted treated water and leave the citizens of the City of Lebanon to be served by their own city water plant," Fox said. "The City of Lebanon and Wilson County have worked very diligently together in developing a commercial and industrial base for the betterment of our citizens while you (the authority), as evidenced by your correspondence, are willing to jeopardize the successful growth of the city and county's tax base in an effort to become something you were never intended to be."
In April 2004, such territorial disputes finally made their way to Legislative Plaza – two years after a similar clash between the Chattanooga suburb of Collegedale and the Hamilton County Water and Wastewater Treatment Authority (HCWWTA) had moved all the way to the Tennessee Court of Appeals.

East Tennessee Trouble

The sewer facilities at the center of the City of Collegedale, Tennessee, ET AL v. Hamilton County Water and Wastewater Treatment Authority were located in the northern Hamilton County community of Ooltewah.
Sewer facilities in the community were built and maintained by the HCWWTA after its establishment in 1993, but when Collegedale attempted to annex the area in April 2000, the question as to which entity held the authority to provide such services ultimately landed in the courts.
An Anderson County Circuit Court judge ruled in favor of Collegedale, requiring the authority to submit to arbitration and maintaining the HCWWTA did not have the right to reacquire the facilities via eminent domain.
The authority appealed the ruling, and in February 2002 the Tennessee Court of Appeals upheld the ruling that the city was entitled to arbitration in its dispute with the authority. However, the state court of appeals vacated the lower court's order that the authority would not be able to condemn the disputed service area.
State Sen. Jeff Miller (R-Cleveland), who represents the nearby counties of Bradley, McMinn, Meigs and Polk, saw a future littered with similar legal battles, as the line between authority and municipal boundaries grew increasingly clouded. In an attempt to address the issue, he drafted Senate Bill 3327 and carried it to the floor of the Senate's State and Local Government Committee in April of this year.
"There were similar issues to the one in Wilson County arising in areas near my district," Miller told The Democrat. "It came to light that there was a conflict in state law that needed to be resolved."
The legislation sought to grant city governments and their sewer operations the "exclusive right" to provide utilities and other services in annexed areas. Fox, flanked by Lebanon City Attorney Andy Wright and city officials from Mt. Juliet, addressed the state committee on behalf of municipal governments. He maintained cities were initially granted such authority under Public Act 1101.
Wright added Miller's legislation would make state law "more fluid" in regard to which entity has the right to provide sewer service in the planned growth area. Without altering state law, he continued, the judicial system would begin dictating the development of cities.
"We're going to have the courts dictating urban growth, and that's not what we want," Wright said.
Speaking on behalf of the Water and Wastewater Authority of Wilson County, a partner with Pickney Bros. – the company which oversees the construction and maintenance of decentralized systems in Wilson County – argued cities often encounter difficulties in providing expedient sewer service inside planned growth boundaries.
"The city won't provide the service today, but the authority will," Pickney Bros. engineer and partner Robert Pickney said. " … With a decentralized system, we can provide that service quicker whereas a city can't … to me, it comes down to who can more quickly provide the service."
By a 4-2-1 vote, the proposed legislation failed to receive the five votes needed to move forward in state government, but Miller hinted the issue would be brought to the forefront again during the upcoming session of the 104th General Assembly.
Fox also indicated the fight was far from over and attributed the failure of Senate Bill 3327 to the muscle of private industry.
"The spokesman for the Wilson Water Authority was not their attorney. It was not their secretary. It was not their director. It was the owner of the Pickney Bros. STEP systems," Fox said of the committee hearing. "The only person that spoke in favor of (decentralized) systems, even though all of your Wilson Water Authority people were there in the Senate room, was a special interest person …
"(Decentralized) systems are special interest driven. Period."
State records indicate the Water and Wastewater Authority of Wilson County likely foresaw the pending legislative battle prior to the introduction of Miller's bill. In 2004, the local authority was the only entity of its kind to secure the services of two registered lobbyists at Legislative Plaza. At the time, at least one of the lobbyists worked for Bone McCallester Norton PLLC – a Nashville legal firm with ties to Rochelle's private practice in Lebanon.
With a final audit still pending, the Water and Wastewater Authority's budget for the 2003-2004 fiscal year was not available, however, the estimated budget for the year indicated as much as $25,000 may have been spent on the lobbying effort.
After leaving his post in the State Senate, Rochelle explained, he was contacted by an attorney for the HCWWTA who, already familiar with the Collegedale case, recommended the Wilson County authority secure the services of a registered lobbyist.
"The attorney for the Hamilton County authority suggested that it would be wise for us to have somebody in Nashville looking to see what was going on and whether that might affect water and wastewater authorities … they felt comfortable that I knew what was happening in the Legislature and that I wasn't going to be there anymore. There was a concern what might happen," Rochelle said.
He added lobbyists from Bone McCallester Norton PLLC were used due to his firm's affiliation with the group, which allowed him to work in a "closer relationship" with them.

More Little Pink Houses

Although he speculated the turf war between the City of Lebanon and the Water and Wastewater Authority of Wilson County would again move to the state level in the near future, Fox said his concerns over the rise of decentralized sewer were not limited to that particular debate.
"If you take STEP systems, you'll go out here and you'll have (State Route) 840 development. You'll go down to the next interchange and see development. (At) the next interchange, you'll see development out in the middle of the countryside. You'll lose your green area," he said. "Actually, you're going to lose the flavor of Tennessee … we are a rural state, a place where you'd want to live."
But, while Fox tabbed decentralized sewer as the reason behind the rampant rural housing boom, onsite proponents countered that notion by arguing the new residential development trend has emerged because of the local job market and not new wastewater treatment technologies.
"There's nothing anyone can do to stop it, nor should they try to," Rochelle said of rural development. "It's coming and we're going to face that in all areas of Wilson County … in order to continue to be able to attract industry, you've got to have affordable housing for the work force.
"So, if we're going to expect industry to continue to come here and the development of retail, then you've got to provide adequate, affordable housing in a variety of income levels."
Water and Wastewater Authority of Wilson County Director Eddie Harris added rural subdivisions built around onsite technology do just that – serving homes ranging in prices from $100,000 to $500,000.
"The reason all these people are coming here is not because they love Lebanon or Wilson County. It's because they can find a job here, a good job. Either that or they work in Nashville, and they have easy access from here … if there wasn't a demand for it, it wouldn't be happening," Harris said.

Staff Writer Brian Harville can be reached at 444-3952 ext. 16 or by e-mail at brian.harville@lebanondemocrat.com.