MS 2022-11-L-Childress-October-31-2022-Municipal-Authority-to-Terminate-Water-for-Nonpaymen October 31, 2022

Can a Mississippi town shut off water service from another utility to collect on its own sewer bill?

Short answer: No. Under Miss. Code Ann. § 21-27-23(e), a Mississippi municipality can discontinue services for nonpayment, but only services the municipality itself provides. The Town of Flora does not own the water service, so it has no authority to terminate it for unpaid sewer charges.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The Town of Flora supplied sewer service to the Churchill Park Subdivision, which sits outside Flora's municipal limits. The water came from a separate utility, the West Madison Utility District. Flora wanted to know whether it could turn off Churchill Park residents' water (water it did not own) to collect unpaid sewer bills.

The AG: no. § 21-27-23(e) lets a municipality "discontinue any or all of the services upon any failure to promptly pay the charges fixed for the services." The 2009 Greenlee opinion read that authority as "specific to the unpaid service provided." Flora supplies sewer; Flora can shut off sewer for nonpayment of sewer. Flora does not supply the water; another district does. Flora has no authority to reach into the other district's service to enforce its own bill.

The AG noted two more constructive points. The Mississippi Department of Environmental Quality may have raised its own concerns about shutting off sewer service without simultaneously shutting off water (sewer-only termination can create health and safety problems with on-site septic, plumbing, and disposal). A direct conversation with MDEQ may yield workable solutions, including reconnecting some homes to septic tanks, as Flora's predecessor mayor noted in a 2004 AG request. An interlocal agreement with the utility district to enforce sewer payment, mentioned in the 2012 Jacks opinion, would not be unusual.

The opinion is short and tightly drawn. It does not address whether the town could terminate sewer service alone (which raises MDEQ concerns) or what an interlocal agreement should look like. Those are next steps for the town.

What this means for you

If you are a Mississippi mayor or city council member dealing with delinquent extraterritorial sewer customers

Under the opinion, you cannot terminate water service another utility supplies, because § 21-27-23(e)'s authority to discontinue services for nonpayment is limited to services the municipality itself provides. The opinion points to two alternatives it raised: a direct conversation with MDEQ about enforcing payment while keeping appropriate health and safety standards (it notes some Subdivision residents were previously on septic tanks and could be reconnected, per the 2004 Richardson request), and an interlocal agreement with the Utility District to enforce payment for sewer service, which the opinion says "would not be atypical" (citing Jacks).

If you are a Mississippi utility district manager

Your district owns the water service. Under the opinion, a neighboring municipality has no authority to terminate the water service you provide to enforce its own sewer bill. The opinion notes an interlocal agreement allowing the Town to enforce payment for sewer services "would not be atypical," citing the Jacks opinion.

If you live in an extraterritorial subdivision

Under the opinion, where your sewer comes from one entity (here, the Town) and your water from another (the Utility District), the entity that does not provide a service has no authority to disconnect it. The Town has no agreement with the Utility District to terminate water for nonpayment of sewer.

If you are a city attorney advising on collection mechanisms

The opinion identifies an interlocal agreement with the water utility to enforce sewer payment as a route that "would not be atypical," citing the Jacks opinion. It does not lay out the terms such an agreement should contain.

If you work with MDEQ

The opinion notes that the mayor's understanding of MDEQ's concerns about shutting off sewer without simultaneously shutting off water was not based on her own discussions with MDEQ, and suggests a direct conversation with MDEQ "may offer alternative options for enforcing payment for services while ensuring appropriate health and safety standards" for the residents.

Common questions

Q: What does § 21-27-23(e) actually let a municipality do?
A: Establish, maintain, and collect rates for the facilities and services it offers, and discontinue "any or all of the services upon any failure to promptly pay the charges fixed for the services." The authority is service-specific. The municipality cannot reach beyond what it provides.

Q: Can a Mississippi municipality shut off the service it does provide for nonpayment?
A: Under § 21-27-23(e) as the opinion reads it, a municipality may discontinue "any or all of the services upon any failure to promptly pay the charges fixed for the services," limited to the services it provides. The opinion's caution is that MDEQ raised concerns about shutting off sewer without simultaneously shutting off water, which is why it points to a direct conversation with MDEQ.

Q: What is the interlocal agreement the opinion mentions?
A: The opinion says an interlocal agreement with the Utility District that would let the Town enforce payment for sewer service "would not be atypical," citing the Jacks opinion. It does not detail the agreement's terms or cite a specific interlocal-cooperation statute.

Q: What if the home was originally on septic?
A: The opinion notes that, per the 2004 Richardson request, some Subdivision residents were previously on septic tanks and could be reconnected, which it raises as a possible alternative to consider with MDEQ.

Background and statutory framework

Mississippi cities have utility authority under Title 21, Chapter 27. § 21-27-11(b) defines what a "utility system" is. § 21-27-23(e) is the operational authority on rates and service termination. § 21-27-39 lets municipalities provide utility services up to five miles outside corporate limits.

The structural fact in this opinion is that Flora's sewer authority extends beyond the city limits (under § 21-27-39), but its termination authority does not extend to services it does not provide. The opinion reads Greenlee for the point that termination authority is "specific to the unpaid service provided."

For the practical fix, the opinion points to an interlocal agreement with the Utility District, which it says "would not be atypical," citing the Jacks opinion.

Citations

Miss. Code Ann. § 21-27-11(b) (utility system definition)
Miss. Code Ann. § 21-27-23(e) (rates and service termination)
Miss. Code Ann. § 21-27-39 (extraterritorial service up to five miles)
MS AG Op., Greenlee (Apr. 3, 2009) (termination authority specific to unpaid service)
MS AG Op., Richardson (Feb. 2, 2004) (Flora's prior request; option to reconnect homes to septic)
MS AG Op., Jacks (Mar. 30, 2012) (interlocal agreement for sewer-payment enforcement is normal)

Source

Original opinion text

October 31, 2022
The Honorable Leslie Childress
Mayor, Town of Flora
Post Office Box 218
Flora, Mississippi 39071
Re:

Municipal Authority to Terminate Water for Nonpayment of Municipal
Sewer Service

Dear Mayor Childress:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the Town of Flora ("Town") provides sewer service to the residents of
the Churchill Park Subdivision ("Subdivision"), which is located outside the Town's municipal
limits. The water service for the Subdivision is provided by a separate entity, the West Madison
Utility District ("Utility District"). The Town has no agreement with the Utility District to
terminate a resident's water service due to nonpayment of sewer service.
Question Presented
May the Town terminate water service provided by the Utility District to residents of the
Subdivision for nonpayment of sewer service provided by the Town?
Brief Response
No. The Town does not have the authority to terminate water service for nonpayment of sewer
service because the Town does not provide water service in the Subdivision.
Applicable Law and Discussion
Municipalities are authorized to own and operate water systems, any other utility system, or a
combination of systems as defined in Section 21-27-11(b). Municipalities are further authorized
by Section 21-27-39 to provide utility services to citizens within five (5) miles outside their
corporate limits. Pursuant to Section 21-27-23(e), municipalities have the authority:

To establish, maintain and collect rates for the facilities and services offered by any
such system; provided that if there is a combination of systems into one or more
systems, the municipality establishing the same shall be and is empowered to
establish, maintain and collect rates for any and all of the services or for any
combination thereof, and the municipality may discontinue any or all of the
services upon any failure to promptly pay the charges fixed for the services….
(emphasis added.) We have opined that a municipality may terminate a utility service for failure
to pay a just bill, but that "authority is specific to the unpaid service provided." MS AG Op.,
Greenlee at *1 (Apr. 3, 2009). According to Section 21-27-23(e), this authority to discontinue
services for failure to pay is limited to services provided by the municipality. The Town has neither
ownership nor operational authority over the water service provided to the Subdivision. It is
therefore the opinion of this office that because the Utility District, not the Town, provides water
to the residents of the Subdivision, the Town has no authority to terminate the water services in
the Subdivision.
It appears from your request that your understanding of the concerns raised by the Mississippi
Department of Environmental Quality ("MDEQ") regarding shutting off sewer service for
nonpayment without simultaneously shutting off water service is not based on your own
discussions with MDEQ, and a direct conversation with that agency may offer alternative options
for enforcing payment for services while ensuring appropriate health and safety standards for the
residents of the Subdivision. For example, in the 2004 request to this office by your predecessor,
Flora Mayor Richardson noted that some of the residents of the Subdivision were previously on
septic tanks and could be reconnected. MS AG Op., Richardson (Feb. 2, 2004). We would also
note that an interlocal agreement with the Utility District that could allow the Town to enforce
payment for sewer services would not be atypical. See MS AG Op., Jacks (Mar. 30, 2012).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General