Senate Bill No. 12
(By Senators McCabe, Plymale, Foster, Palumbo and Chafin)
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[Introduced January 13, 2010; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact §16-13D-1, §16-13D-2, §16-13D-8 and
§16-13D-15 of the Code of West Virginia, 1931, as amended; to
amend said code by adding thereto two new sections, designated
§16-13D-10a and §16-13D-10b; and to amend and reenact §24-2-3
and §24-2-4b of said code, all relating to authorizing
regional water authorities, regional wastewater authorities
and regional water and wastewater authorities to provide for
the joint maintenance of its participating public agencies;
authorizing regional water authorities, regional wastewater
authorities and regional water and wastewater authorities to
extend service to unserved customers within its territory; and
establishing an ordinance procedure for regional water
authorities, regional wastewater authorities and regional
water and wastewater authorities.
Be it enacted by the Legislature of West Virginia:
That §16-13D-1, §16-13D-2, §16-13D-8 and §16-13D-15 of the
Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto two new sections,
designated §16-13D-10a and §16-13D-10b; and that §24-2-3 and
§24-2-4b of said code be amended and reenacted, all to read as
follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13D. REGIONAL WATER AND WASTEWATER AUTHORITY ACT.
§16-13D-1. Statement of purpose.
It is the purpose of this article to permit certain public
agencies to make the most efficient use of their powers relating to
public water supplies and the transportation and treatment of
wastewater by enabling them to cooperate with other public agencies
on a basis of mutual advantage and thereby to provide services and
facilities to participating public agencies and to provide for the
establishment for such purpose of a quasi-governmental public
corporation which shall be known as a regional water authority, or
where appropriate, a regional wastewater authority, or regional
water and wastewater authority. The function of the regional water
authority shall be to secure a source of water on a scale larger
than is feasible for individual public agencies acting alone, and
to sell such water
to and to reduce maintenance costs by
consolidating maintenance responsibilities for multiple public
service districts, municipalities, publicly and privately owned water utilities, and others
and to facilitate the service of
unserved areas by extending service to customers that otherwise
would not be served. The function of the regional wastewater
authority shall be to enable public agencies to join together to
provide the most economical method of transportation and treatment
of wastewater and to provide such transportation and treatment
services
to and to reduce maintenance costs by consolidating
maintenance responsibilities for multiple public service districts,
municipalities, publicly and privately owned wastewater utilities,
and others
and to facilitate the service of unserved areas by
extending service to customers that otherwise would not be served.
The function of the regional water and wastewater authority shall
be to enable public agencies to join together to carry out the
joint functions of both regional water authority and a regional
wastewater authority.
In addition to the purposes for which it may have originally
been created, any authority created pursuant to this article shall
have the power to enter into agreements with public agencies,
privately owned utilities, and other authorities, for the provision
of related services including, but not limited to the following:
Administration, operation and maintenance, billing and collection.
§16-13D-2. Definitions.
For the purposes of this article:
(a) The term "authority"
shall mean means any regional water authority, regional wastewater authority or regional water and
wastewater authority organized pursuant to the provisions of this
article;
and
(b) The term "joint maintenance" means an authority's ability
to provide maintenance services for the facilities and other
structures of its participating members thereby allowing
participating members to share maintenance employees, equipment and
other maintenance costs necessary for the operation of a water or
wastewater system; and
(b) © The term "public agency"
shall mean means any
municipality, county, public service district or other political
subdivision of this state.
§16-13D-8. Powers of governing body.
For the purpose of providing a water supply, transportation
facilities,
joint maintenance or treatment system to the
participating public agencies,
and to provide service to unserved
areas, and others, the governing body of the authority
shall have
has the following powers, authorities and privileges:
(1) To accept by gift or grant from any person, firm,
corporation, trust or foundation, or from this state or any other
state or any political subdivision or municipality thereof, or from
the United States, any funds or property or any interest therein
for the uses and purposes of the authority and to hold title
thereto in trust or otherwise and to bind the authority to apply the same according to the terms of
such the gift or grant;
(2) To sue and be sued;
(3) To enter into franchises, contracts and agreements with
this or any other state or the United States or any municipality,
political subdivision or authority thereof, or any of their
agencies or instrumentalities, or any public or private person,
partnership, association or corporation of this state or of any
other state or the United States, and this state and any such
municipality, political subdivision, authority or any of their
agencies or instrumentalities, and any such public or private
person, partnership, association or corporation is
hereby
authorized to enter into contracts and agreements with
such the
authority for any term not exceeding forty years for the planning,
development, construction, acquisition, maintenance or operation of
any facility or for any service rendered to, for or by
said the
authority;
(4) To borrow money and evidence the same by warrants, notes
or bonds as
hereinafter provided in this article and to refund the
same by the issuance of refunding obligations;
(5) To acquire land and interests in land by gift, purchase,
exchange or eminent domain, such power of eminent domain to be
exercised within or without the boundaries of the authority in
accordance with provisions of article two, chapter fifty-four of
this code;
(6) To acquire by purchase or lease, construct, install and
operate reservoirs, pipelines, wells, check dams, pumping stations,
water purification plants and other facilities for the production,
distribution and utilization of water, and transportation
facilities, pump stations, lift stations, treatment facilities and
other facilities for the transportation and treatment of
wastewater, and to own and hold such real and personal property as
may be necessary to carry out the purposes of its organization,
subject to the advance approval of the Public Service Commission
for any proposed acquisition, construction, installation or
operation:
Provided, That the Public Service Commission shall act
on all proposals submitted under this paragraph within one hundred
twenty days of filing with the commission:
Provided, however, That
if the Public Service Commission has not acted within
such that
period,
of time approval of
such the proposal shall be deemed
granted;
(7) To have the general management, control and supervision of
all the business, affairs, property and facilities of the
authority, and of the construction, installation, operation and
maintenance of authority improvements and to establish
regulations
rules relating thereto;
(8) To provide for the joint maintenance of the participating
public agencies for all reservoirs, pipelines, wells, check dams,
pumping stations, water purification plants and other facilities for the production, distribution and utilization of water, and
transportation facilities, pump stations, lift stations, treatment
facilities and other facilities for the transportation and
treatment of wastewater of the participating public agencies;
(9) To extend service to unserved areas not contained within
the boundaries of nonparticipating utilities;
(10) To enact rate ordinances pursuant to this article;
(8) (11) To hire and retain agents, employees, engineers and
attorneys and to determine their compensation. The governing body
shall select and appoint a general manager of the authority who
shall serve at the pleasure of
said the governing body. The
general manager
shall is required to have training and experience
in the supervision and administration of the system or systems
operated by the authority and shall manage and control the system
under the general supervision of
said the governing body. All
employees, servants and agents of the authority shall be under the
immediate control and management of
said the general manager. The
general manager shall perform
all such other duties as may be
prescribed by
said the governing body and shall give the governing
body a good and sufficient surety company bond in a sum to be set
and approved by the governing body conditioned upon the
satisfactory performance of the general manager's duties. The
governing body may also require that any other employees be bonded
in
such an amount as it
shall determine determines. The cost of
said the bonds shall be paid out of the funds of the authority;
(9) (12) To adopt and amend rules
and regulations not in
conflict with the Constitution and laws of this state, necessary
for the carrying on of the business, objects and affairs of the
governing body and of the authority;
and
(10) (13) To have and exercise all rights and powers necessary
or incidental to or implied from the specific powers granted
herein. Such specific powers
shall are not
be considered as a
limitation upon any power necessary or appropriate to carry out the
purposes of this article.
§16-13D-10a. Joint maintenance.
Each participating public agency of the authority shall
provide to the governing body of the authority its yearly
maintenance expenses. The governing body of the authority shall
estimate the cost of providing joint maintenance to the
participating public agencies and compare the cost that would be
attributable to each participating public agency for joint
maintenance to the existing cost of maintenance expenses for each
participating public agency. The governing body of an authority
shall provide for the joint maintenance of the participating public
agencies if the governing body of the authority determines that a
significant cost savings for each participating public agency shall
occur if the authority provides the joint maintenance for each
participating public agency. If the authority is providing the joint maintenance for each participating public agency, the
authority shall charge each participating public agency a
maintenance fee to pay the expenses of the joint maintenance.
§16-13D-10b. Extension of service to unserved areas.
The governing body and its participating members shall seek to
extend service to unserved areas not contained with the boundaries
of nonparticipating utilities.
§16-13D-15. Rates and charges.
(a) An authority shall set its rates and charges through the
enactment of a rate ordinance. Rate ordinances shall be enacted
with the following procedure:
(1) A proposed rate ordinance shall be read by title at not
less than two meetings of the governing body with at least one week
intervening between each meeting, unless a member of the governing
body demands that the ordinance be read in full at one or both
meetings. If such demand is made, the ordinance shall be read in
full as demanded.
(2) At least five days before the meeting at which a proposed
rate ordinance is to be finally adopted, the governing body shall
cause notice of the proposed adoption of said proposed rate
ordinance to be published as a Class I-0 legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, and the publication area for the publication is the
area of the participating entities of the authority. The notice shall state the subject matter and general title or titles of the
proposed rate ordinance, the date, time and place of the proposed
final vote on adoption, and the place or places where the proposed
ordinance may be inspected by the public. A reasonable number of
copies of the proposed rate ordinance shall be kept at such place
or places and be made available for public inspection. The notice
shall also advise that interested parties may appear at the meeting
and be heard with respect to the proposed ordinance.
(3) A proposed rate ordinance may not be materially amended at
the same meeting at which it is finally adopted.
(4) In the agreement creating the authority the participating
members of the authority may specify other additional requirements
for the enactment of rate ordinances, or may prescribe a procedure
for the enactment of rate ordinances in greater detail than
prescribed in this section, but the participating members of the
authority do not have the power and authority to lessen or reduce
the requirements of this section.
(b) The governing body shall by
appropriate resolution
ordinance make provisions for the payment of
said the bonds by
fixing rates, fees and charges, for the use of all services
rendered by
such the authority, which rates, fees and charges shall
be sufficient to pay the costs of operation, improvement and
maintenance of the authority's water supply or wastewater
transportation and/or treatment system, to provide an adequate depreciation fund, provide an adequate sinking fund to retire
said
the bonds and pay interest thereon when due and to create
reasonable reserves for such purposes.
Said The fees, rates or
charges shall be sufficient to allow for miscellaneous and
emergency or unforeseen expenses. The
resolution ordinance of the
governing body authorizing the issuance of revenue bonds may
include agreements, covenants or restrictions deemed necessary or
advisable by the governing body to effect the efficient operation
of the system and to safeguard the interests of the holders of the
revenue bonds and to secure the payment of the bonds and the
interest thereon.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-3. General power of commission with respect to rates.
The commission
shall have power to may enforce, originate,
establish, change and promulgate tariffs, rates, joint rates, tolls
and schedules for all public utilities:
Provided, That the
commission may exercise such rate authority over municipal
utilities
or authorities as described in section two, article
thirteen-d, chapter sixteen of this code only under the
circumstances set forth in section four-b of this article. And
whenever the commission,
shall after hearing,
find finds, any
existing rates, tolls, tariffs, joint rates or schedules unjust,
unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, the
commission shall by an order fix reasonable rates, joint rates,
tariffs, tolls or schedules to be followed in the future in lieu of
those found to be unjust, unreasonable, insufficient or unjustly
discriminatory or otherwise in violation of any provisions of law,
and the
said the commission, in fixing the rate of any railroad
company, may fix a fair, reasonable and just rate to be charged on
any branch line thereof, independent of the rate charged on the
main line of
such the railroad.
In determining just and reasonable rates, the commission may
audit and investigate management practices and policies, or have
performed an audit and investigation of
such the practices and
policies, in order to determine whether the utility is operating
with efficiency and is
utilizing using sound management practices.
The commission shall adopt rules
and regulations setting forth the
scope, frequency and application of such audits and investigations
to the various utilities subject to its jurisdiction. The
commission may include the cost of conducting the management audit
in the cost of service of the utility.
In determining just and reasonable rates, the commission shall
investigate and review transactions between utilities and
affiliates. The commission shall limit the total return of the
utility to a level which, when considered with the level of profit
or return the affiliate earns on transactions with the utility, is just and reasonable.
§24-2-4b. Procedures for changing rates of electric and natural
gas cooperatives, local exchange services of
telephone cooperatives municipally operated public
utilities.
(a) The rates and charges of electric cooperatives, natural
gas cooperatives,
and municipally operated public utilities, except
for municipally operated commercial solid waste facilities as
defined in section two, article fifteen, chapter twenty-two of this
code,
and authorities as described in section two, article
thirteen-d, chapter sixteen of this code and the rates and charges
for local exchange services provided by telephone cooperatives are
not subject to the rate approval provisions of section four or
four-a of this article, but are subject to the limited rate
provisions of this section.
(b) All rates and charges set by electric cooperatives,
natural gas cooperatives,
and municipally operated public utilities
and authorities as described in section two, article thirteen-d,
chapter sixteen of this code and all rates and charges for local
exchange services set by telephone cooperatives shall be just,
reasonable, applied without unjust discrimination or preference and
based primarily on the costs of providing these services. The
rates and charges shall be adopted by the electric, natural gas or
telephone cooperative's governing board and in the case of the municipally operated public utility
or authority as described in
section two, article thirteen-d, chapter sixteen of this code by
municipal ordinance
or rate ordinance, as appropriate, to be
effective not sooner than forty-five days after adoption:
Provided, That notice of intent to effect a rate change shall be
specified on the monthly billing statement of the customers of the
utility for the month next preceding the month in which the rate
change is to become effective or the utility shall give its
customers, and in the case of a cooperative, its customers, members
and stockholders, other reasonable notices as will allow filing of
timely objections to the rate change. The rates and charges shall
be filed with the commission, together with any information showing
the basis of the rates and charges and other information as the
commission considers necessary. Any change in the rates and
charges with updated information shall be filed with the
commission. If a petition, as set out in subdivision (1), (2) or
(3), subsection © of this section is received and the electric
cooperative, natural gas cooperative, telephone cooperative or
municipality has failed to file with the commission the rates and
charges with information showing the basis of rates and charges and
other information as the commission considers necessary, the
suspension period limitation of one hundred twenty days and the one
hundred-day period limitation for issuance of an order by a hearing
examiner, as contained in subsections (d) and (e) of this section, is tolled until the necessary information is filed. The electric
cooperative, natural gas cooperative, telephone cooperative or
municipality
or authority as described in section two, article
thirteen-d, chapter sixteen of this code shall set the date when
any new rate or charge is to go into effect.
© The commission shall review and approve or modify the rates
upon the filing of a petition within thirty days of the adoption of
the ordinance or resolution changing the rates or charges by:
(1) Any customer aggrieved by the changed rates or charges who
presents to the commission a petition signed by not less than
twenty-five percent of the customers served by the municipally
operated public utility
or authority as described in section two,
article thirteen-d, chapter sixteen of this code or twenty-five
percent of the membership of the electric, natural gas or telephone
cooperative residing within the state;
(2) Any customer who is served by a municipally operated
public utility and who resides outside the corporate limits and who
is affected by the change in the rates or charges and who presents
to the commission a petition alleging discrimination between
customers within and without the municipal boundaries. The
petition shall be accompanied by evidence of discrimination; or
(3) Any customer or group of customers who are affected by the
change in rates who reside within the municipal boundaries and who
present a petition to the commission alleging discrimination between customer or group of customers and other customers of the
municipal utility. The petition shall be accompanied by evidence
of discrimination.
(d)(1) The filing of a petition with the commission signed by
not less than twenty-five percent of the customers served by the
municipally operated public utility
or authority as described in
section two, article thirteen-d, chapter sixteen of this code or
twenty-five percent of the membership of the electric, natural gas
or telephone cooperative residing within the state under
subdivision (1), subsection © of this section shall suspend the
adoption of the rate change contained in the ordinance or
resolution for a period of one hundred twenty days from the date
the rates or charges would otherwise go into effect or until an
order is issued as provided herein.
(2) Upon sufficient showing of discrimination by customers
outside the municipal boundaries or a customer or a group of
customers within the municipal boundaries under a petition filed
under subdivision (2) or (3), subsection © of this section, the
commission shall suspend the adoption of the rate change contained
in the ordinance for a period of one hundred twenty days from the
date the rates or charges would otherwise go into effect or until
an order is issued as provided herein.
(e) The commission shall forthwith appoint a hearing examiner
from its staff to review the grievances raised by the petitioners. The hearing examiner shall conduct a public hearing and shall,
within one hundred days from the date the rates or charges would
otherwise go into effect, unless otherwise tolled as provided in
subsection (b) of this section, issue an order approving,
disapproving or modifying, in whole or in part, the rates or
charges imposed by the electric, natural gas or telephone
cooperative or by the municipally operated public utility pursuant
to this section.
(f) Upon receipt of a petition for review of the rates under
the provisions of subsection © of this section, the commission may
exercise the power granted to it under the provisions of section
three of this article. The commission may determine the method by
which the rates are reviewed and may grant and conduct a de novo
hearing on the matter if the customer, electric, natural gas or
telephone cooperative or municipality requests a hearing.
(g) The commission may, upon petition by a municipality,
authority as described in section two, article thirteen-d, chapter
sixteen of this code or electric, natural gas or telephone
cooperative, allow an interim or emergency rate to take effect,
subject to refund or future modification, if it is determined that
the interim or emergency rate is necessary to protect the
municipality from financial hardship attributable to the purchase
of the utility commodity sold, or the commission determines that a
temporary or interim rate increase is necessary for the utility to avoid financial distress. In such cases, the commission may waive
the forty-five day waiting period provided
for in subsection (b) of
this section and the one hundred twenty-day suspension period
provided
for in subsection (d) of this section.
(h) Notwithstanding any other provision, the commission has no
authority or responsibility with regard to the regulation of rates,
income, services or contracts by municipally operated public
utilities
or authority as described in section two, article
thirteen-d, chapter sixteen of this code for services which are
transmitted and sold outside of the State of West Virginia.
NOTE:
The purpose of this bill is to authorize regional water
authorities, regional wastewater authorities, and regional water
and wastewater authorities to provide joint maintenance to its
participating members, to authorize such authorities to extend
service to unserved areas, and to establish a rate ordinance
procedure for authorities to set rates without the approval of the
Public Service Commission. This bill will encourage public
utilities to share resources in an effort to bring more cost
effective service to customers and to encourage utilities to extend
service to unserved areas. The bill also allows regional water and
wastewater authorities to set rates by rate ordinance without the
approval of the Public Service Commission unless twenty-five
percent of the customers of such authorities present a petition of
protest.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§16-13D-10a and §16-13D-10b
are new; therefore,
strike-throughs and underscoring have been omitted.
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