Senate Bill No. 700
(By Senators McCabe, Bailey and Minard)
[Originating in the Committee on Finance;
reported March 25, 2005.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-1B-1, §5B-1B-2,
§5B-1B-3, §5B-1B-4, §5B-1B-5, §5B-1B-6, §5B-1B-7, §5B-1B-8 and
§5B-1B-9, all relating to the creation of a Community
Infrastructure Investment Program within the Department of
Commerce; legislative findings; definitions; granting
rule-making authority; authority to promulgate emergency
rules; establishing process for issuance of certificate of
appropriateness; providing for community infrastructure
investment agreements; setting minimum terms; authority of
Division of Health and Department of Environmental Protection
not affected; requiring report to Joint Committee on
Government and Finance; providing for administrative fees; establishing exemption from authority of Public Service
Commission; and setting time limits for approval.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5B-1B-1, §5B-1B-2,
§5B-1B-3, §5B-1B-4, §5B-1B-5, §5B-1B-6, §5B-1B-7, §5B-1B-8 and
§5B-1B-9, all to read as follows:
ARTICLE 5B. COMMUNITY INFRASTRUCTURE INVESTMENT PROJECTS.
§5B-1B-1. Legislative findings.
The Legislature finds and declares that:
(a) There is a growing need for the extension of public water
and sewer services throughout the state and that the extension of
such services and facilities maintains the health and economic
vitality of the citizens of West Virginia. In addition, access to
such infrastructure facilities is equal essential to development in
all regions of the state.
(b) The extension of public water and sewer services promotes
public health and safety in that it enables businesses, residences,
municipalities and other entities to comply with state and federal
water quality standards.
(c) The cost of publicly owned sewer and water facilities are
normally born by the state, its subdivisions and the citizens of
West Virginia and public indebtedness incurred to construct such
facilities constitutes a financial burden on the state and its political subdivisions, as well as residential consumers.
(d) The rates for public water and sewer services charged to
customers of all service classes have risen in recent years due
primarily to the cost of utility construction and the cost of debt
service associated with such construction.
(e) There are private business entities that are in need of
water and sewer services for various residential, commercial and
industrial projects throughout the state and that those entities
are willing to pay the cost associated with constructing needed
public water and sewer services and to dedicate the facility to the
local certificated public utility after construction of such
(f) those private business entities need a method by which to
enter into agreements with municipalities or public service
districts that would enable the construction of new infrastructure
as well as the expansion of existing facilities.
(g) The dedication of such infrastructure facilities to the
local certificated public utility without cost greatly benefits the
citizens of the state and promotes industrial, commercial and
For the purposes of this article, the following words or terms
defined have the meaning ascribed to them herein:
(a) "Certificate of appropriateness" shall refer to the document evidencing approval of a project and is issued by the
Secretary of the Department of Commerce pursuant to the provisions
of this article. The issuance of such a certificate shall exempt
the project from the provisions of section eleven of article two,
chapter twenty-four of this code and, in the case of a public
service district, from the provisions of section twenty-five,
article thirteen, chapter sixteen of this code.
(b) "Community infrastructure investment agreement" shall
refer to a written agreement between a municipality or public
service district and a person that provides for the transfer of
legal title to a project facility from the person to the municipal
utility, public service or privately owned utility.
(c) "Community infrastructure investment project" shall refer
to any newly constructed or enlarged and improved project facility
that may be transferred to a municipal utility or public service
district without cost to the municipal utility or public service
district pursuant to the provisions of this article.
(d) "Person" shall refer to any individual, partnership, firm,
society, association, trust, corporation or other business entity.
(e) "Project cost" shall refer to the capital cost of proposed
community infrastructure investment project facilities to be
constructed pursuant to the provisions of this article. "Project
cost" shall also refer to newly constructed or enlarged and
improved existing project facilities. Project cost shall not refer to any of the costs or expenses of ordinary operation and
maintenance of the project facilities once they become operational.
(f) "Project facilities" shall refer to waste water treatment
plants or water treatment plants constructed pursuant to the
provisions of this article and include, but are not limited to,
related storage buildings or structures, meters, hydrants, pump
stations, force and gravity mains, transmission lines and other
such fixtures related to the construction of water or sewer
facilities. Project facilities shall not refer to the ordinary
extension of collection and distribution lines or facilities from
or to the project constructed pursuant to the provisions of this
article to the property of any user of project facilities.
(g) "Public service district" shall refer to those public
corporations and political subdivisions of the state created
pursuant to the provisions of section two, article thirteen-a,
chapter sixteen of this code.
(h) "Secretary" shall refer to the Secretary of the Department
of Commerce established in section one, article one, chapter five-b
of this code.
§5B-1B-3. Creation of community infrastructure investment project;
certificate of appropriateness; rule-making
(a) There is hereby created a Community Infrastructure
Investment Program within the Department of Commerce. This Program will facilitate the construction or expansion of project facilities
for the promotion of economic development and/or the protection of
public health and environment in the state. Any public service
district or municipal utility that wishes to accept a project
facility constructed pursuant to a community infrastructure
investment agreement with a project cost not to exceed ten million
dollars, may apply to the secretary for approval of such project.
Nothing herein shall be construed to require a public service
district or municipal utility to use this program.
(b) Where the Secretary shall have found that the community
infrastructure investment project shall have met the requirements
contained in this article, the Secretary shall issue a certificate
of appropriateness to the municipal utility or public service
district as evidence of such approval.
(c) Municipal utilities or public service districts may
jointly enter into agreements with persons for the purpose of
applying to the Secretary of the Department of Commerce for
approval of project facilities. The minimum terms and conditions
of such agreements are established by the provisions of section
four of this article.
(d) The Secretary will, by legislative rule, establish the
criteria for the approval of such project and shall have sole
authority to make such determination.
§5B-1B-4. Community infrastructure investment agreements; report to Joint Committee on Government and Finance.
(a) Municipal utilities and public service districts have the
power and authority to enter into community infrastructure
investment agreements with any person for the purpose of
constructing new project facilities, or substantially improving or
expanding project facilities.
(b) Notwithstanding any other provision in this code to the
contrary, the secretary shall have the power and the authority to
review and approve all such community infrastructure investment
(c) Each such agreement shall contain as a minimum the
following terms and conditions to be performed by the parties
(1) The project facilities shall be engineered and constructed
in accordance with the requirements for new construction
established by the municipal utility or public service district;
(2) Proof or certification of the financial ability of the
municipality or public service district to maintain and operate the
(3) Certification that upon completion and activation of the
project facility or improvements to the project facility, the title
to the public facility shall be transferred without cost to the
municipal utility or public service district;
(4) A finding that the construction of the new public facility, or the substantial improvement or expansion of an
existing public facility, either: (i) Fosters economic growth by
promoting commercial, industrial or residential development; or
(ii) improves water quality or otherwise enables the affected
territory to achieve compliance with any applicable state or
federal health or environmental law;
(5) The municipal utility or public service district will
receive or otherwise obtain without cost to the public all
necessary rights of way for the operation of the public facility;
(6) The rates charged by the municipal utility or public
service district to new customers to be served by the project
facility shall be the rates in effect at the time of transfer of
the project facility to the utility plus any additional cost of
service borne by the municipal utility or public service district
as a result of the project facility until such time as new rates
may be finally enacted by the municipal utility or proposed by the
public service district and approved by the Public Service
Commission and the rates charged by the public service district to
existing customers shall not be impacted as a result of the
obligation of the public service district or municipal utility
pursuant to the community infrastructure investment agreement;
(7) Confirmation that the agreement does not violate any of
the bond covenants imposed on the municipal utility or public
(8) Proof that necessary permits, where applicable, have been
obtained from the Division of Health and the Department of
(9) Evidence that the person responsible for the construction
of or improvements to the public facility has provided funding to
the municipal utility or public service district for the engagement
of an engineer qualified to design and certify the structural
integrity and capacity of the project facility; and
(10) Any other conditions that the secretary may determine to
be relevant as established.
(d) Where the Secretary has found that the community
infrastructure investment agreement meets the requirements
contained in this article, the Secretary shall issue a certificate
of appropriateness to the parties as evidence of such approval.
(e) Not later than thirty days prior to the issuance of a
certificate of appropriateness for any community infrastructure
investment project, the Secretary shall first submit a report of
the same to the Joint Committee on Government and Finance.
§5B-1B-5. Authority of the Department of Environmental Protection
and Division of Health not affected.
Nothing contained in this article shall be construed to affect
the authority of the Department of Environmental Protection
pursuant to the provisions of chapter twenty-two of this code, nor
the authority of the Division of Health pursuant to the provisions of chapter sixteen of this code.
§5B-1B-6. Time for approval.
The Secretary shall approve or reject all applications for a
community investment infrastructure project or agreement within
thirty days, unless, by mutual agreement, such time period is
extended. In no case, shall the time period extend beyond ninety
The Secretary shall establish by legislative rule a schedule
of fees reasonably calculated to pay for the costs of the
administration of the provisions of this article.
§5B-1B-8. Exemption from Public Service Commission approval.
All project facilities constructed or improved pursuant to the
provisions of this article shall be exempt from the provisions of
chapter twenty-four of this code until such time as title to the
public facility shall be transferred to the municipal utility or
public service district. Nothing herein shall be construed to give
the Public Service Commission authority to regulate or intervene in
the approval and construction of any project or agreement provided
in this article. Notwithstanding any other provision of this code
to the contrary, the acquisition of a project facility by a
municipality or public service district under the provisions of
this article shall not require the issuance of a certificate of
convenience and necessity from the Public Service Commission.
§5B-1B-9. Rule-making authority.
The Secretary shall have the authority to propose legislative
rules for promulgation in accordance with the provisions of section
one, article three, chapter twenty-nine-a of this code to
effectuate the purposes of this article. Notwithstanding any
provision of this code to the contrary, the proposed legislative
rules for this article filed in the state register by the first day
of August, two thousand five, may be filed as emergency rules.