Is county water infrastructure fee valid? Missouri Supreme Court will decide | St. Louis Public Radio

Is county water infrastructure fee valid? Missouri Supreme Court will decide

Nov 1, 2016

Updated Nov. 1 with court arguments – The Missouri Supreme Court is weighing whether state law still allows Missouri American Water to charge its St. Louis County customers an infrastructure surcharge.

The Public Service Commission agreed to allow Missouri American to charge the $3 a month fee, even though St. Louis County's population dropped below 1 million during the 2010 U.S. census. But the western district court of appeals overturned that decision in March.

Some laws, such as this one, are written with general language — a county with population over 1 million people, for instance — to pass constitutional muster and only affect certain jurisdictions.

Tim Opitz with the office of public counsel agrees with the appeals court ruling.

"The population requirement contained in the ISRS (Infrastructure System Replacement Surcharge) statute must be presumed to have some meaning," Opitz argued before the High Court. "If it didn't have a meaning, why would the legislature have put in this 1 million population requirement? And so if a political subdivision does not meet that population requirement, they are not privy to the privileges or obligations under that statute."

Attorney Jennifer Heintz, representing the Public Service Commission, argued that the office of public counsel is misinterpreting the law.

"To read the statute the way that public counsel is suggesting, suggests that the legislature would create complicated schemes," she said, "(and) would be OK with the fact that they could create a taxicab commission in 2001, and it would go out of existence in 2011 because of the census, and maybe it would come back into existence in 2021 when we get a new census. ... I would argue that the legislature did not intend such a strange and absurd result, and the court should not read the statute that way."

Heintz also said the surcharge is sorely needed.

"Some of this infrastructure is more than a hundred years old," she said. "We've got all of this water infrastructure, it's very old, it's failing – we had a failure last week in University City – we need to figure out a way to speed up that replacement."

She told the seven Supreme Court judges that the Public Service Commission has also approved a "small" 0.7 percent increase in the fee amount, to allow Missouri American to keep up with rising costs. Opitz called it irrelevant.

"It was mentioned that this is just a small amount over … well, that small amount over is unlawful, and that money does not belong to the company and it's not the commission's to give away," he argued. "That money belongs to the people of St. Louis County."

As to the question regarding fluctuating populations, Opitz said the law in question doesn't allow for any wiggle room.

"We have to look at the plain language of the statute; it says 1 million people," he said. "It doesn't say about 1 million people, give or take, it says 1 million very clearly."

Attorney Erwin Switzer, representing Missouri American, argued that a lot more than his client's income is at stake.

"The whole state is watching this case," he said. "There's an Uber case pending in St. Louis County right now, where the challenge by Uber is that it can do whatever it wants -- "there is no St. Louis Taxicab commission" -- the St. Louis County circuit judge has stayed (that) case (while) waiting for this case."

The Missouri Supreme Court will issue a ruling at a later date.

Original July 5 story – The Missouri Supreme Court has agreed to decide whether Missouri American Water can keep charging its St. Louis County customers an infrastructure fee, despite a drop in the county's population.

Since 2002, the utility's 340,000 customers in the county have paid an additional $3-a-month infrastructure replacement surcharge, which allows Missouri American to replace old water mains before they break. But in March, a state appeals court ruled that the utility could no longer collect that surcharge because St. Louis County's population had dropped below the required 1 million people.

"We're thrilled that the Supreme Court has decided to hear the case," said Brian Russell, the external affairs manager for Missouri American. "Beyond just being a Missouri American Water issue, this is an issue that's going to affect a number of different pieces of legislation. A lot of school district fees and fire district fees are in jeopardy because now if their populations change, they may fall out and suddenly these fees that they’re counting on are no longer applicable."

Some laws are written with general language — a county with population over 1 million people, for instance — to pass constitutional muster and only affect the counties with the most people.

Russell said the company hopes the judges rule that a fee can be charged as long as the governmental body met the target population when the law was written. If the judges decide against Missouri American, Russell said the utility will ask the Missouri General Assembly to change the law.

Follow Rachel Lippmann on Twitter: @rlippmann