Opinion No. 1996-216

Percy Malone

Attorney General of Arkansas — Opinion
Opinion Delivered August 6, 1996

WINSTON BRYANT, Attorney General

The Honorable Percy Malone State Representative 518 Clay Street Arkadelphia, Arkansas 71923

Dear Representative Malone:

This is in response to your request for an opinion concerning who is responsible for paying for repairs to the sewer system in the streets and easements when a problem occurs. You note that because the citizens are required to pay maintenance fees, it is believed that perhaps this responsibility falls to the city and not the property owner near the street or easement. You have asked that I refer to A.C.A. §§ 14-235-202 to -205, 14-235-215, and 14-235-223 in addressing this question.

I must note that the answer to this question will depend upon a number of factual issues particular to the specific city sewer system at issue, including the exact location of the needed repairs, the provisions of any ordinance governing the expenditure of sewer system revenues and possibly the provisions of any trust indenture supporting the issuance of revenue bonds to build the sewer system. I cannot, therefore, without reference to all of the facts and local laws and regulations, come to a conclusive determination as regards the responsibility for the payment of any particular repairs. I can, however, set out a general discussion of the law pertaining to the operation and repair of municipal sewage systems.

The statutes you have cited grant authority to municipalities to “own, acquire, construct, equip, operate, and maintain . . . a sewerage collection system or a sewage treatment plant, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations, and all other appurtenances necessary or useful and convenient for the collection and treatment, purification, and disposal in a sanitary manner of the liquid and solid waste, sewage, night soil, and industrial waste of the municipality.” A.C.A. § 14-235-203 (1987). Other provisions in the subchapter provide for the creation of a sewer committee to supervise the sewer works and its operation and maintenance (see A.C.A. § 14-235-206); for the issuance of revenue bonds to pay for the cost of constructing or acquiring the sewage treatment system (see A.C.A. § 14-235 215); and for the collection of service rates and charges from citizens to support the system and retire any such revenue bonds issued. See A.C.A. §14-235-223.

A separate subchapter of the Arkansas Code (the subchapter immediately following the subchapter cited above) provides a criminal penalty for a citizen’s failure to connect to a city sewer system within the time frame prescribed by an order of the city board of health. This subchapter also provides that if an owner of property fails to connect to the sewer system, the board of health is authorized to make the connection and charge the expense therefor as a lien against the property.[1]

It is clear from a reading of the first subchapter noted above, that in constructing and operating the sewer system, the city itself does not in any way obligate any of its general revenues to support the sewer system. See A.C.A. §§ 14-235-205(b); 14-235-207(a)(3) and 14-235-215(a). Rather, the expenses of maintenance and operation of the sewer works and repayment of the bonds are to be funded solely from the revenues generated under the subchapter (i.e., from the proceeds of the bond issue and any applicable service charges and rates levied). The subchapter states that these rates “shall be sufficient in each year for the payment of the proper and reasonable expense of operation, repair, replacements, and maintenance of the works and for the payment of the sums required in this subchapter to be paid into the [bond repayment] sinking fund.”

On the other hand, it is clear from a reading of the second subchapter cited above that the property owner is responsible for the cost of connecting his property to the city sewer line. See A.C.A. §§ 14-235-301, -302 and -303. Presumably, because the property owner is responsible for shouldering this cost, he or she is also responsible for maintaining and repairing the line that runs over his property to the point it connects with the city sewer system.

You have not indicated with specificity the exact location of the needed repairs, but note that your question pertains to repairs in the “streets and easements.” A fact question may arise as to whether the repairs are in a section of sewer line necessary to connect the property owner’s property with the city sewer works, or whether they are necessary repairs to the city sewer works as defined in A.C.A. §§ 14-235-201 and -203. In the former situation, the cost of the repairs must in all likelihood be borne by the property owner, and in the latter situation, the cost of the repairs may, depending upon the facts, be the responsibility of the city sewer committee, assuming that adequate funds are available to pay for the repairs. It must be noted that a portion of the available city revenues may be currently pledged to the repayment of bonds and if insufficient revenues are available for the purpose of funding repayment of the bonds and for repairing the system, the sewer committee may be precluded from paying or making necessary repairs without authorized funding. Any relevant local ordinances and rules and regulations of the sewer committee should also be consulted on this point. It must be remembered, however, that the sewer committee, as noted previously, has a duty to ensure that the rates and charges levied are sufficient to maintain the works and to repay any revenue bonds issued.

Because of the various factual issues arising from your question, it is impossible for me to come to any definite conclusions as regards a citizen’s responsibility to pay for necessary sewer repairs. I hope, however, that the foregoing discussion is of help in addressing the issue.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.


WINSTON BRYANT Attorney General


[1] Nothing in the subchapter, however, requires a property owner to connect to a sewer where the distance from the property to the place where a connection can be made to the sewer exceeds three hundred feet.