H. B. 2788
(By Delegates Boggs, T. Campbell,
Swartzmiller and Walters)
[Introduced January 24, 2011; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then Finance.]
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 broadband services facilities 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; increasing the limitation of the amount of funds which may be annually transferred to the account.
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.
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 ratio 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 “Department” of Environmental Protection” means the Division Department 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, chapter thirty-one of the code, 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, broadband services facilities, 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, 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 Department 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;
(v) (y) “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) (z) “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) (aa) “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 Highways shall provide the council with 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 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 Department 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 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 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 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.
(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 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 $2 million to the restricted account: Provided, That at no time may the balance of the restricted account exceed one million dollars $2 million.
(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) After the construction of any new broadband transmission lines in the new road right-of-way, the lines may be transferred to broadband service providers. The council shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to provide for the transfer of ownership of the new lines of broadband service providers and for the equitable right to the use of the new lines by all broadband service providers, subject to such appropriate limitations and restrictions as the council may determine.
NOTE: The purpose of this bill is to specify that infrastructure projects providing broadband services facilities be included in infrastructure projects eligible for funding from the West Virginia Infrastructure Fund. The bill also provides for including the feasibility of inclusion of broadband transmission lines concomitant with the construction of new roads and that construction of broadband transmission lines may be funded from the infrastructure road improvement reserve account within the infrastructure fund. The bill also increases the limitation of the amount of funds which may be annually transferred to the account from $1 million to $2 million.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.