FILED

November 10, 2022 released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

No. 22-0351 – Mason County Public Service District v. The Public Service Commission of West Virginia and Ralph and Carla Huff WOOTON, Justice, dissenting, joined by Chief Justice Hutchison: The complainants, Ralph and Carla Huff, had their water service terminated due to nonpayment and later sought to have that service reconnected. The petitioner, Mason County Public Service District (“the District), charged the Huffs separate fees for disconnection of water service ($50.00) and then for reconnection ($50.00). The Huffs complained to the respondent, The Public Service Commission (“PSC”), that they were required to pay the arrearage they owed before the District would restore their water service, raising no specific complaint as to either the disconnect fee or the reconnect fee. Nonetheless, the PSC exercised jurisdiction over the fee issue, determining that the disconnect fee was not really a fee, but “the practice” of charging a disconnect fee. The PSC determined that the District’s “practice” of charging a disconnect fee was an “unreasonable practice” under the PSC’s jurisdictional authority as set forth in West Virginia Code section 24-2-7(a) (2018). 1 See also W. Va. Code § 24-2-1(b)(2) & (7) (Supp.

2022). 2 The majority affirms the PSC’s exercise of jurisdiction in this case and, in so doing, disregards the Legislature’s 2015 transfer of the authority to set rates, fees and service is inadequate, or that any service which is demanded cannot be reasonably obtained, the commission shall determine and declare, and by order fix reasonable measurement, regulations, acts, practices or services, to be furnished, imposed, observed and followed in the state in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory, inadequate or otherwise in violation of this chapter, and shall make such other order respecting the same as shall be just and reasonable.

charges for a Locally Rate Regulated Public Service District (“LLR”), which includes the District, from the PSC to the county commission which created the PSD. See W. Va. Code § 16-13A-9(a)(2)(E) (2021). 3 Therefore, I respectfully dissent.

This Court recognized the transfer of the authority to set rates, fees and charges from the PSC to the District, an LLR, in Pool v. Greater Harrison County Public Service District, 241 W. Va. 233, 821 S.E.2d 14 (2018), as follows:

Prior to 2015, when any public service district wanted to change the rates it charged for water or sewer service, state law required the public service district to obtain approval from the PSC. In 2015, the Legislature adopted deregulation measures to limit the PSC’s jurisdiction and to exempt larger public service districts from this requirement. After 2015, “larger” public service districts are statutorily defined as having at least 4,500 customers and are only required to obtain approval of a rate change from a local elected body, such as a county commission. The Legislature based the 2015 amendments on its finding that larger public service districts are “most fairly and effectively regulated by the local governing body with respect to rates, borrowing and capital projects.” W.Va. Code § 24-1-1(j) [2015].

241 W. Va. at 236, 821 S.E.2d at 17 (emphasis added and footnotes omitted). We also stated in Pool that

[t]he Legislature plainly intended to limit the PSC’s jurisdiction when it adopted West Virginia Code §§ 16-13A- advertisement in compliance with the provisions of § 59-3-1 et seq. of this code. Within 45 days of receipt of the proposed rates, fees, and charges, the county commission shall take action to approve, modify, or reject the proposed rates, fees, and charges, in its sole discretion. If, after 45 days, the county commission has not taken final action to approve, modify, or reject the proposed rates, fees, and charges, as presented to the county commission, shall be effective with no further action by the board or county commission. In any event, this 45-day period shall be mandatory unless extended by the official action of both the board proposing the rates, fees, and charges, and the appointing county commission.

9(a)(2) and 24-2-4a. When the Legislature modified those statutes in 2015, it perceived that the water and sewer rates charged by larger public service districts are best regulated by local elected officials and not the PSC. See W.Va. Code § 24- 1-1(j). These statutes limited the PSC to regulating only the rates charged by smaller public service districts.

241 W. Va. at 240, 821 S.E.2d at 21 (emphasis added).

....

(E) Any other basis or classification which the board may determine to be fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished.

Id. § 16-13A-9(a)(1)(E) (emphasis added). Accordingly, the District did exactly that which the Legislature commanded: it adopted and approved charges for the services and facilities it furnishes to “pay for the cost of maintenance, operation, and depreciation” of its “properties and principal of and interest on all bonds issued, other obligations incurred under the provisions of this article, and all reserve or other payments provided for in the proceedings which authorized the issuance of any bonds under this article.” Id. The District represented that it is the largest physical public service district (“PSD”) in the state – with 519 miles of main, serving all of the unincorporated areas of Mason County and reaching into three other counties. The average round trip from the District’s home base to terminate water service is 60 miles and takes two hours of personnel time. On average, the District incurs expenses of $116.10 per disconnection or reconnection performed. The disconnect and reconnect fees do not fully recover the District’s expenses in performing these services; however, these fees diminish the extent to which the District’s regular paying customers subsidize those who fail to make arrangements to continue service.

(Internal citations to appendix record omitted).

the disconnect and reconnect fees charged in this case were reasonable. The PSC based its exercise of its jurisdiction on its conclusion that the “disconnect fee” was not actually a fee but a “practice of charging the fee.” W. Va. Code § 24-2-1(b)(2) & (7) and § 24-2-7(a); see supra notes 1 & 2.

because expenses associated with disconnecting services are part of it operation and maintenance expenses for which the Commission or the county commission allows recovery when establishing service rates.” See Jane Lew Pub. Serv. Dist., Case No. 08- 1867-PWD-T-PC-CN, at p.15 (Recommended Decision entered Mar. 13, 2009) (“It is reasonable to deny the inclusion of a disconnection fee in Jane Lew’s tariff since it is current Commission policy to only allow a disconnection fee when a water utility is termination water service for a delinquent sewer bill under contract with a sewer utility.”) and Fountain Pub. Serv. Dist., Case No. 09-0443-PWD-T-PW, at 2 (Recommended Decision entered Sept. 8, 2009) (“Allowing a water utility to impose a disconnect fee may ostensibly result in double recovery by the utility, since normally this cost of service item is recouped in a utility’s base rates.”).

Despite the PSC’s claim that its Water Rules only allow fees for reconnecting service, not disconnecting it, and its pronouncement that disconnect fees are disfavored, 5 neither of the relevant Water Rules nor the aforementioned recommended decisions support the PSC’s overarching position in regard to the determinative jurisdictional issue: that a disconnect fee is not actually a fee but rather a “practice of charging the fee.” Indeed, the recommended decisions and the Water Rules belie the PSC’s argument, as there is no mention of a disconnect fee “practice” discussed in either. In short, what is readily gleaned from an examination of the foregoing is that the PSC created its “practice of charging the fee” rubric out of whole cloth in order to justify its exercise of jurisdiction under the auspices of West Virginia Code section 24-2-1(b)(2) & (7) and section 24-2-7(a). See supra notes 1 & 2.

two statutes, one of which is couched in general terms and the other of which specifically speaks to the matter at hand, preference generally is accorded to the specific statute.” Newark Ins. Co. v. Brown, 218 W. Va. 346, 351, 624 S.E.2d 783, 788 (2005) (emphasis added). We previously have held that “[t]he general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled.” Syl. Pt. ^[1], UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984) (emphasis added). Accordingly, between the general authority of the Commission to investigate unreasonable acts or practices by a utility, § 24- 2-7, and the specific delegation of authority to LLRs and locally elected county commissions to enact rates, fees and charges, § 24-1-1 (j) and § 16-13A-9(a), the specific grant of authority prevails.

or services.” See id. § 24-2-1(b)(2) & (7). This clearly was not what the Legislature intended.

Based upon the foregoing, I respectfully dissent. I am authorized to state that Chief Justice Hutchison joins in this dissenting opinion.