COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 299
(By Senators Unger, Browning, Fanning, Jenkins, K. Facemyer,
Foster, Guills and Stollings)
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[Originating in the Committee on Finance;
reported March 25, 2009.]
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A BILL to amend and reenact §31-15A-2 and §31-15A-7 of the Code of
West Virginia, 1931, as amended, all relating to
infrastructure projects funded by the West Virginia
Infrastructure Fund; providing definitions; specifying that
infrastructure projects providing conduit or other supporting
or containing structures for telecommunications and broadband
transmission lines be included in infrastructure projects
eligible for funding; including the feasibility of inclusion
of broadband transmission lines concomitant with the
construction of new roads; providing that construction of
broadband transmission lines may be funded from the
Infrastructure Road Improvement Reserve Account within the
Infrastructure Fund; removing the limitation of the amount of
funds which may be annually transferred to the account and
requiring reasonable and nondiscriminatory access to conduit or other supporting or containing structures for
telecommunications and broadband transmission lines, and
requiring legislative rules.
Be it enacted by the Legislature of West Virginia:
That §31-15A-2 and §31-15A-7 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-2. Definitions.
For purposes of this article:
(a) "Bond" or "infrastructure revenue bond" means a revenue
bond, note or other obligation issued by the Water Development
Authority pursuant to this article, including bonds to refund such
bonds and notes to renew such notes and notes in anticipation of
and payable from the proceeds of such bonds;
(b) "Broadband infrastructure" means all facilities, hardware
and software and other intellectual property necessary to provide
broadband services in this state, including, but not limited to,
voice, video and data;
(c) "Broadband" or "broadband service" means any service
providing advanced telecommunications capability with either a
downstream data rate or upstream data rate of at least two hundred
kilobits per second that does not require the end-user to dial up
a connection that has the capacity to always be on and for which the transmission speeds are based on regular available bandwidth
rates, not sporadic or burstable rates, with a minimum
downstream-to-upstream data ration of 10:1 for services with a
downstream data rate of up to five megabits per second for services
with a downstream data rate of five megabits per second or greater;
(d) "Broadband transmission lines" means telecommunication
equipment lines, regardless of the technology or medium, including,
but not limited to, copper wire, fiber-optic cable or coaxial
cable, capable of transmitting broadband service;
(b) (e) "Code" means the Code of West Virginia, 1931, as
amended;
(c) (f) "Cost" means, as applied to any project to be
financed, in whole or in part, with infrastructure revenues or
funds otherwise provided pursuant to this article, the cost of
planning, acquisition, improvement and construction of the project;
the cost of preliminary design and analysis, surveys, borings; the
cost of environmental, financial, market and engineering
feasibility studies, assessments, applications, approvals,
submissions or clearances; the cost of preparation of plans and
specifications and other engineering services; the cost of
acquisition of all land, rights-of-way, property rights, easements,
franchise rights and any other interests required for the
acquisition, repair, improvement or construction of the project;
the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to
which buildings or structures may be moved; the cost of excavation,
grading, shaping or treatment of earth, demolishing or removing any
buildings or structures; the cost of constructing any buildings or
other improvements; the cost of all pumps, tanks, vehicles,
apparatus and other machinery, furnishings and equipment; loan or
origination fees and all finance charges and interest incurred
prior to and during the construction and for no more than six
months after completion of construction; the cost of all legal
services and expenses; the cost of all plans, specifications,
surveys and estimates of cost; all working capital and other
expenses necessary or incident to determining the feasibility or
practicability of acquiring, repairing, improving or constructing
any project; the cost of placing any project in operation; and all
other costs and expenses of any kind or nature incurred or to be
incurred by the project sponsor developing the project that are
reasonable and necessary for carrying out all works and
undertakings necessary or incident to the accomplishment of any
project:
Provided, That costs shall not include any amounts
related to the ongoing operations of the owner or operator,
depreciation thereof or any other cost which the council or the
Water Development Authority has not determined to be consistent
with the purposes and objectives of this article;
(d) (g) "Council" means the West Virginia Infrastructure and Jobs Development Council created in section three of this article;
(e) (h) "Division of Environmental Protection" means the
Division of Environmental Protection established under article one,
chapter twenty-two of this code or any successor to all or any
substantial part of its powers and duties;
(f) (i) "Division of Health" means the Division of Health
created in article one, chapter sixteen of this code or any
successor to all or any substantial part of its powers and duties;
(g) (j) "Economic Development Authority" means the Economic
Development Authority established under article fifteen of this
chapter or any successor to all or any substantial part of its
powers and duties;
(h) (k) "Emergency project" means a project which the council
has determined: (1) Is essential to the immediate economic
development of an area of the state; and (2) will not likely be
developed in that area if construction of the project is not
commenced immediately;
(i) (l) "Governmental agency" means any county; municipality;
watershed improvement district; assessment district; soil
conservation district; sanitary district; public service district;
drainage district; regional governmental authority and any other
state governmental agency, entity, political subdivision or public
corporation or agency authorized to acquire, construct or operate
water or wastewater facilities or infrastructure projects;
(j) (m) "Housing Development Fund" means the West Virginia
Housing Development Fund established under article eighteen of this
chapter or any successor to all or any substantial part of its
powers and duties;
(k) (n) "Infrastructure Fund" means the West Virginia
Infrastructure Fund created and established in section nine of this
article;
(l) (o) "Infrastructure project" means a project in the state
which the council determines is likely to foster and enhance
economic growth and development in the area of the state in which
the project is developed, for commercial, industrial, community
improvement or preservation or other proper purposes, including,
without limitation, tourism and recreational housing, land, air or
water transportation facilities and bridges, industrial or
commercial projects and facilities, mail order, warehouses,
wholesale and retail sales facilities,
conduit or other supporting
or containing structures for telecommunications and broadband
transmission lines, and other real and personal properties,
including facilities owned or leased by this state or any other
project sponsor, and includes, without limitation: (1) The process
of acquiring, holding, operating, planning, financing, demolition,
construction, improving, expanding, renovation, leasing or
otherwise disposing of the project or any part thereof or interest
therein; and (2) preparing land for construction and making, installing or constructing improvements on the land, including
water or wastewater facilities or any part thereof, steam, gas,
telephone and telecommunications and electric lines and
installations,
conduit or other supporting or containing structures
for telecommunications and broadband transmission lines, roads,
bridges, railroad spurs, buildings, docking and shipping
facilities, curbs, gutters, sidewalks, and drainage and flood
control facilities, whether on or off the site;
(m) (p) "Infrastructure revenue" means all amounts
appropriated by the Legislature; all amounts deposited into the
Infrastructure Fund; any amounts received, directly or indirectly,
from any source for the use of all or any part of any project
completed pursuant to this article; and any other amounts received
by the State Treasurer, council or the Water Development Authority
for the purposes of this article;
(n) (q) "Need of the project sponsors" means there is a public
need for a project. The council shall construe a population
increase evidenced by the last two decennial censuses in a county
in which a project is proposed, as a factor supporting the
conclusion that a need exists for projects in that county.
(o) (r) "Project" means any wastewater facility, water
facility project or any combination thereof, constructed or
operated or to be constructed or operated by a project sponsor;
(p) (s) "Project sponsor" means any governmental agency or person, or any combination thereof, including, but not limited to,
any public utility, which intends to plan, acquire, construct,
improve or otherwise develop a project;
(q) (t) "Public Service Commission" means the Public Service
Commission of West Virginia created and established under section
three, article one, chapter twenty-four of this code or any
successor to all or any substantial part of its powers and duties;
(r) (u) "Person" means any individual, corporation,
partnership, association, limited liability company or any other
form of business organization;
(s) (v) "Public utility" means any person or persons, or
association of persons, however associated, whether incorporated or
not, including, without limitation, any governmental agency,
operating a wastewater facility or water facility as a public
service, which is regulated by the Public Service Commission as a
public utility under chapter twenty-four of this code or which is
required to file its tariff with the Public Service Commission;
(t) (w) "State Development Office" means the West Virginia
Development Office established under article two, chapter five-b of
this code or any successor to all or any substantial part of its
powers and duties;
(u) (x) "State infrastructure agency" means the Division of
Health, Division of Environmental Protection, Housing Development
Fund, Public Service Commission, State Development Office, Water Development Authority, Economic Development Authority and any other
state agency, division, body, authority, commission,
instrumentality or entity which now or in the future receives
applications for the funding of, and provides funding or technical
assistance to, the planning, acquisition, construction or
improvement of a project;
(y) "Telecommunications" means the transmission, between or
among points specified by the user, of information of the user's
choosing, without change in the form or content of the information
as sent and received;
(z) "Telecommunications line" means a transmission channel for
telecommunications, regardless of the method or technology used,
including, without limitation, wire, radio or fiber optics;
(v) (aa) "Wastewater facility" means all facilities, land and
equipment used for or in connection with treating, neutralizing,
disposing of, stabilizing, cooling, segregating or holding
wastewater, including, without limitation, facilities for the
treatment and disposal of sewage, industrial wastes or other
wastes, wastewater, and the residue thereof; facilities for the
temporary or permanent impoundment of wastewater, both surface and
underground; and sanitary sewers or other collection systems,
whether on the surface or underground, designed to transport
wastewater together with the equipment and furnishings therefor or
thereof and their appurtenances and systems, whether on the surface or underground including force mains and pumping facilities
therefor;
(w) (bb) "Water Development Authority" means the West Virginia
Water Development Authority continued pursuant to the provisions of
article one, chapter twenty-two-c of this code or any successor to
all or any substantial part of its powers and duties; and
(x) (cc) "Water facility" means all facilities, land and
equipment used for or in connection with the collection and/or
storage of water, both surface and underground, transportation of
water, storage of water, treatment of water and distribution of
water all for the purpose of providing potable, sanitary water
suitable for human consumption and use.
§31-15A-7. Current and prospective planning; roads and highways;
report to Division of Highways.
(a) The council shall take into account the current and
prospective infrastructure needs in relation to plans of the
Division of Highways for the development and building of new roads.
Upon completion of an environmental impact study, the Commissioner
of the Division of Highways shall provide the council with
preliminary plans for any and all new roads. In a timely manner,
the council shall advise the Commissioner of the Division of
Highways on the feasibility of the expansion of new or existing
water and sewer lines
and conduit or other supporting or containing
structures for telecommunications and broadband transmission lines concomitant to the construction of the new roads.
(b) The council has the authority to appoint local
infrastructure planning teams. The local infrastructure planning
teams may consist of the following: A designee of the Division of
Highways from the region where the new road is being built; a
designee of the Division of Highways from the central state office;
a designee from the Environmental Engineers Division of the
Department of Health and Human Resources; a designee from the local
developmental authority where the new road is being built; a
designee from the regional developmental authority in the area
where the new road is being built; a designee from the Public
Service Commission; a designee from the Division of Environmental
Protection; a designee from the county commission where the new
road is being built who shall serve as chairperson of the planning
team; a citizen of the county where the new road is being built to
be chosen by the county commission; and the elected state delegates
and senators from the area where the new road is being built. In
order to avoid delay of any highway project, immediately upon
appointment of a local infrastructure planning team, the
Director
Commissioner of the Division of Highways shall submit to the
council a time frame within which the planning team must act and
within which the planning team must submit any plans, maps,
recommendations or reports developed pursuant to this subsection.
The local infrastructure planning team shall meet prior to the development and building of a new road. Members of the local
infrastructure planning team shall only receive payment for actual
expenses incurred. The local infrastructure planning team shall
advise the Commissioner of the Division of Highways on the
feasibility of an infrastructure plan. The local infrastructure
planning team shall meet to develop an infrastructure plan that
includes an assessment study of existing water and sewer lines and
a feasibility study on future development and laying of water and
sewer lines
and conduit or other supporting or containing
structures for telecommunications and broadband transmission lines.
After these studies are completed, a developmental map shall be
drawn of the proposed road route with overlays of the proposed
water and sewer lines
and any proposed and conduit or other
supporting or containing structures for telecommunications and
broadband transmission lines. These studies and the map shall be
presented to the Commissioner of the Division of Highways and shall
be used by the commissioner in the planning, developing and
building of the road.
No facilities, lines or infrastructure of any
type may be constructed, installed or maintained within, under or
over the right-of-way of any road in the state road system except
in accordance with plans approved by the Commissioner of the
Division of Highways. Location, maintenance and relocation of
facilities, lines and infrastructure in state road rights-of-way
shall be in accordance with all applicable federal, state and local law.
(c) The Water Development Authority shall establish a
restricted account within the Infrastructure Fund to be expended
for the construction of water and sewage lines
and conduit or other
supporting or containing structures for telecommunications and
broadband transmission lines as may be recommended by the council
in accordance with this article and specifically, in accordance
with the plan developed under subsection (b) of this section. The
reserve account shall be known as the Infrastructure Road
Improvement Reserve Account. The council and the Division of
Highways may enter into agreements to share the cost of financing
projects approved in accordance with this section from moneys
available in the infrastructure road reserve account and moneys
available from the State Road Fund. Annually, the council may
direct the Water Development Authority to transfer funds from the
Infrastructure Fund
in an amount not to exceed one million dollars
to the restricted account.
Provided, That at no time may the
balance of the restricted account exceed one million dollars
(d) For the purposes of this section, the term "new" means a
road right-of-way being built for the first time.
(e) After the construction of water and sewer lines adjacent
to the new road, these new lines shall be turned over to existing
utilities by expansion of boundaries of public service districts or
shall be main extensions from the municipality.
(f) All telecommunications and broadband providers requesting
access to any conduit or other supporting or containing structures
constructed pursuant to this section are entitled to receive that
access on a reasonable, competitively neutral and nondiscriminatory
basis. The council shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
for that purpose.