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Introduced Version Senate Bill 670 History

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Senate Bill No. 670

(By Senators Kessler, Edgell, Helmick, Boley, Bowman, Barnes and Facemyer)

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[Introduced March 21, 2005; referred to the Committee

on the Judiciary.]

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A BILL to amend and reenact §19-21A-3, §19-21A-4 §19-21A-5, §19-21A-6 and §19-21A-7 of the Code of West Virginia, 1931, as amended, all relating to electing supervisors for conservation districts; defining certain terms; authorizing emergency rulemaking; providing that registered voters in the district may vote for supervisors and in referendum; requiring candidate for supervisor file statement; and providing that candidate may not be on ballot or take office if qualifications not met.

Be it enacted by the Legislature of West Virginia:
That §19-21A-3, §19-21A-4 §19-21A-5, §19-21A-6 and §19-21A-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 21A. CONSERVATION DISTRICTS.
§19-21A-3. Definitions.
Wherever used or referred to in this article, unless a different meaning clearly appears from the context:
(1) "Agency of this state" includes the government of this state and any subdivision, agency or instrumentality, corporate or otherwise, of the government of this state.
(2) "Committee" or "state conservation committee" means the agency created in section four of this article.
(3) "District" or "conservation district" means a subdivision of this state, organized in accordance with the provisions of this article, for the purposes, with the powers and subject to the restrictions hereinafter set forth.
(4)"Governing body" means the supervisors of any conservation district, town or city, council, city commission, county court or body acting in lieu of a county court, in this state, and the term "governmental division" means any conservation district, town, city or county in this state.
(5) "Land occupier" or "occupier of land" includes any person, firm or corporation who shall hold title to, or shall be in possession of, any lands lying within a district organized under the provisions of this article, whether as owner, lessee, renter or tenant.
(6) "Landowners" or "owners of land" includes any person or persons, firm or corporation who shall hold title to three or more acres of any lands lying within a district organized under the provisions of this article.
(7) "Notice" means notice published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county in which is located the appropriate area. At any hearing held pursuant to such notice at the time and place designated in such notice, adjournment may be made from time to time without the necessity of renewing such notice for such adjournment dates.
(8) "Petition" means a petition filed under the provisions of subsection (a), section five of this article for the creation of a district.
(9) "Soil conservation", "erosion control" or "erosion prevention projects", when used throughout the article, shall denote those projects that have been established by federal agencies in cooperation with state agencies for the purpose of demonstrating soil erosion control and water conservation practices.
(10) "State" means the State of West Virginia.
(11) "Supervisor" means one of the members of the governing body of a district, elected or appointed in accordance with the provisions of this article.
(12) "United States" or "agencies of the United States" includes the United States of America, Natural Resources Conservation Service of the United States Department of Agriculture, and any other agency or instrumentality, corporate or otherwise, of the United States of America.
(13) "Works of improvement" means such structures as may be necessary or convenient for flood prevention or the conservation, development, utilization or disposal of water.
§19-21A-4. State conservation committee; continuation.
(a) The State Conservation Committee is continued. It serves as an agency of the state and is to perform the functions conferred upon it in this article. The committee consists of the following ten members:
(1) Four citizen members;
(2) The following ex officio members:
(A) The Director of the State Cooperative Extension Service;
(B) The Director of the State Agricultural and Forestry Experiment Station;
(C) The Secretary of the Department of Environmental Protection;
(D) The State Commissioner of Agriculture, who is the chairperson of the committee;
(E) The Director of the Division of Forestry; and
(F) The President of the West Virginia Association of Conservation Districts.
(b) The Governor shall appoint, by and with the consent of the Senate, the four citizen members. Members shall be appointed for four-year terms, which are staggered in accordance with the initial appointments under prior enactment of this section. In the event of a vacancy, the appointment is for the unexpired term.
(c) The Committee may invite the Secretary of Agriculture of the United States of America to appoint one person to serve with the Committee as an advisory member.
(d) The Committee shall keep a record of its official actions, shall adopt a seal, which shall be judicially noticed, and may perform those acts, hold public hearings and adopt or propose for legislative approval, rules necessary for the execution of its functions under this article.
(e) The State Conservation Committee may employ an administrative officer, technical experts and other agents and employees, permanent and temporary, as it requires. The administrative officer and support staff shall be known as the West Virginia Conservation Agency. The Committee shall determine their qualifications, duties and compensation. The Committee may call upon the Attorney General of the state for legal services it requires. It may delegate to its chairperson, to one or more of its members, or to one or more agents or employees, powers and duties it considers proper. The Committee may secure necessary and suitable office accommodations and the necessary supplies and equipment. Upon request of the Committee, for the purpose of carrying out any of its functions, the supervising officer of any state agency or of any state institution of learning shall, insofar as may be possible, under available appropriations and having due regard to the needs of the agency to which the request is directed, assign or detail to the Committee, members of the staff or personnel of the agency or institution of learning and make special reports, surveys or studies required by the Committee.
(f) A member of the Committee holds office so long as he or she retains the office by virtue of which he or she is serving on the Committee. A majority of the Committee is a quorum and the concurrence of a majority in any matter within their duties is required for its determination. The chairperson and members of the Committee may receive no compensation for their services on the Committee, but are entitled to reimbursement of expenses, including traveling expenses necessarily incurred in the discharge of their duties on the Committee. The Committee shall:
(1) Require the execution of surety bonds for all employees and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate public record of all proceedings and of all resolutions, rules and orders issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts and disbursements.
(g) In addition to other duties and powers conferred upon the State Conservation Committee, it may:
(1) Offer appropriate assistance to the supervisors of conservation districts, organized as provided in this article, in the carrying out of any of their powers and programs;
(2) Keep the supervisors of each of the several districts, organized under the provisions of this article, informed of the activities and experience of all other districts organized under this article and facilitate an interchange of advice and experience between the districts and cooperation between them;
(3) Coordinate the programs of the several conservation districts so far as this may be done by advice and consultation;
(4) Secure the cooperation and assistance of the United States and any of its agencies and of agencies of this state in the work of the districts;
(5) Disseminate information throughout the state concerning the activities and programs of the conservation districts and encourage the formation of the districts in areas where their organization is desirable;
(6) Accept and receive donations, gifts, contributions, grants and appropriations in money, services, materials or otherwise from the United States or any of its agencies, from the State of West Virginia or from other sources and use or expend the money, services, materials or other contributions in carrying out the policy and provisions of this article, including the right to allocate the money, services or materials in part to the various conservation districts created by this article in order to assist them in carrying on their operations; and
(7) Obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise any property, real or personal, or rights or interests in the property; maintain, administer, operate and improve any properties acquired; receive and retain income from the property and to expend the income as required for operation, maintenance, administration or improvement of the properties or in otherwise carrying out the purposes and provisions of this article; and sell, lease or otherwise dispose of any of its property or interests in the property in furtherance of the purposes and the provisions of this article. Money received from the sale of land acquired in the small watershed program shall be deposited in the special account of the State Conservation Committee and expended as provided in this article.
(8) To promulgate emergency and legislative rules to effectuate the provisions of this article as amended and reenacted by the Legislature during the regular session of the Legislature in the year two thousand-five.
§19-21A-5. Creation of conservation districts.
(a) Any twenty-five owners of land lying within the limits of the territory proposed to be organized into a district may file a petition with the State Conservation Committee asking that a conservation district be organized to function in the territory described in the petition. Such The petition shall set forth:
(1) The proposed name of said the district;
(2) That there is need, in the interest of the public health, safety and welfare, for a conservation district to function in the territory described in the petition;
(3) A description of the territory proposed to be organized as a district, which description shall not be required to be given by metes and bounds or by legal subdivisions, but shall be deemed sufficient if generally accurate;
(4) A request that the State Conservation Committee duly define the boundaries for such the district; that a referendum be held within the territory so defined on the question of the creation of a conservation district in such the territory; and that the committee determine that such a district be created.
Where more than one petition is filed covering neighboring parts of the same region, whether or not these areas overlap, the State Conservation Committee may consolidate all or any such petitions.
(b) Within thirty days after such a petition has been filed with the State Conservation Committee, it shall cause due notice to be given of a proposed hearing upon the question of the desirability and necessity, in the interest of the public health, safety and welfare, of the creation of such district, upon the question of the appropriate boundaries to be assigned to such district, upon the propriety of the petition and other proceedings taken under this article and upon all questions relevant to such inquiries. Notice of the date, place and time of the hearing shall be published no less than fourteen days prior to the hearing as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area is the county or counties where the proposed district is located. All owners of land within the limits of the territory described in the petition, and of lands within any territory considered for addition to such the described territory, and all other interested parties shall have the right to attend such the hearings and to be heard. If it shall appear appears upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of further hearing shall be given throughout the entire area considered for inclusion in the district and such further another hearing held. After such the hearing, if the committee shall determine determines, upon the facts presented at such the hearing and upon such other relevant facts and information as may be available, that there is need, in the interest of the public health, safety and welfare, for a conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall define, by metes and bounds or by legal subdivisions, the boundaries of such district. Districts thus defined may be a watershed or portion thereof and nothing in this article shall be interpreted to exclude from consideration, small areas often constituting a very small part of a large watershed. The district may be large or small, but in making such that determination and in defining such the boundaries, the committee shall give due weight and consideration to the topography of the area considered and of the state, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such the boundaries, the relation of the proposed area to existing watersheds and agricultural regions and to other conservation districts already organized or proposed for organization under the provisions of this article and such other physical, geographical and economic factors as are relevant, having due regard to the legislative determinations set forth in section two of this article. The territory to be included within such the boundaries need not be contiguous. If the committee shall determine determines after such the hearing, after due consideration of the said relevant facts, that there is no need for a conservation district to function in the territory considered at the hearing, it shall make and record such its determination and shall deny the petition. After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as aforesaid and new hearings held and determinations made thereon.
(c) After the committee has made and recorded a determination that there is need, in the interest of the public health, safety and welfare, for the organization of a district in a particular territory and has defined the boundaries thereof, it shall consider the question whether the operation of a district within such boundaries with the powers conferred upon conservation districts in this article is administratively practicable and feasible. To assist the Committee in the determination of such administrative practicability and feasibility, it shall be is the duty of the Committee within a reasonable time after entry of the finding that there is need for the organization of the proposed district and the determination of the boundaries thereof, to hold a referendum within the proposed district upon the proposition of the creation of the district and to cause due notice of such referendum to be given. The question of the creation of the proposed district shall be submitted to the qualified voters of the proposed district at the next primary or general election. All of the provisions of the general election laws, when not in conflict with the provisions of this article, apply to voting and elections on the referendum, insofar as practicable.
The question shall be submitted by ballots upon which the words "For creation of a conservation district of the lands below described and lying in the county (counties) of ____________, ____________, and ____________. Against creation of a conservation district of the lands below described and lying in the county (counties) of ___________, ____________, and ____________" shall appear, with a square before each proposition and a direction to insert an X mark in the square before one or the other of said the propositions as the voter may favor or oppose creation of such a district. The ballot shall set forth the boundaries of such the proposed districts as determined by the committee. All owners of lands lying within the boundaries of the territory, as determined by the state conservation committee, shall be eligible to vote in such referendum.
(d) The Committee shall pay all expenses for the issuance of such notices and the conduct of such and conducting hearings and referenda and shall supervise the conduct of such hearings and referenda. It shall issue appropriate regulations promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the conduct of such hearings and referenda and providing for the registration prior to the date of the referendum of all eligible voters, or prescribing some other appropriate procedure for the determination of those eligible as voters in such a referendum. No informalities in the conduct of such referendum or in any matter relating thereto shall invalidate said referendum or the result thereof if notice shall have been given substantially as herein provided and said referendum shall have been fairly conducted.
(e) The Committee shall publish the result of such the referendum and shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the Committee shall determine determines that the operation of such the district is not administratively practicable and feasible, it shall record such its determination and deny the petition. If the Committee shall determine that the operation of such the district is administratively practicable and feasible, it shall record such the determination and shall proceed with the organization of the district in the manner hereinafter provided. In making such its determination the Committee shall give due regard and weight to the attitudes of the occupiers of lands lying within the defined boundaries, the number of landowners eligible to vote in such the referendum who shall have voted, the proportion of the votes cast in such the referendum in favor of the creation of the district to the total number of votes cast, the approximate wealth and income of the land occupiers of the proposed district, the probable expense of carrying on erosion-control operations within such the district and such other economic and social factors as may be relevant to such the determination, having due regard to the legislative determinations set forth in section two of this article: Provided, That the Committee shall not have authority to determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible unless at least sixty per centum of the votes cast in the referendum upon the proposition of creation of the district shall have been cast in favor of the creation of such district.
(f) If the Committee shall determine determines that the operation of the proposed district within the defined boundaries is administratively practicable and feasible, it shall appoint two supervisors to act with the supervisors elected as provided hereinafter, as the governing body of the district.
(g) The two appointed supervisors shall present to the Secretary of State an application signed by them which shall set forth (and such application need contain no detail other than the mere by recitals: (1) That a petition for the creation of the district was filed with the State Conservation Committee pursuant to the provisions of this article and that the proceedings specified in this article were taken pursuant to such the petition; that the application is being filed in order to complete the organization of the district under this article; and that the Committee has appointed them as supervisors; (2) the name and official residence of each of the supervisors, together with a certified copy of the appointments evidencing their right to office; (3) the term of office of each of the supervisors; (4) the name which is proposed for the district; and (5) the location of the principal office of the supervisors of the district. The application shall be subscribed and sworn to by each of the said supervisors before an officer authorized by the laws of this state to take and certify oaths, who shall certify upon the application that he or she personally knows the supervisors and knows them to be the officers as affirmed in the application and that each has subscribed thereto in the officer's presence. The application shall be accompanied by a statement by the State Conservation Committee, which shall certify (and such statement need contain no detail other than the mere by recitals that a petition was filed, notice issued and hearing held as aforesaid; that the committee did duly determine that there is need, in the interest of the public health, safety and welfare, for a conservation district to function in the proposed territory and did define the boundaries thereof; that notice was given and a referendum held on the question of the creation of such the district; that the result of such the referendum showed a majority of the votes cast in such the referendum to be in favor of the creation of the district; and that thereafter the committee did duly determine that the operation of the proposed district is administratively practicable and feasible. The said statement shall set forth the boundaries of the district as they have been defined by the Committee.
The Secretary of State shall examine the application and statement and, if he or she finds that the name proposed for the district is not identical with that of any other conservation district of this state or so nearly similar as to lead to confusion or uncertainty, he or she shall file them and shall record them in an appropriate book of record in his or her office. If the Secretary of State shall find finds that the name proposed for the district is identical with that of any other conservation district of this state, or so nearly similar as to lead to confusion and uncertainty, he or she shall certify such that fact to the State Conservation Committee which shall thereupon submit to the Secretary of State a new name for the said district, which shall not be subject to such defects. Upon receipt of such the new name, free of such defects, the Secretary of State shall record the application and statement, with the name so modified, in an appropriate book of record in his or her office. The Secretary of State shall make and issue to the said supervisors a certificate, under the seal of the state, of the due organization of the said district and shall record such the certificate with the application and statement. The boundaries of such the district shall include the territory as determined by the State Conservation Committee as aforesaid, but in no event shall they include any area included within the boundaries of another conservation district organized under the provisions of this article.
(h) After six months shall have has expired from the date of entry of a determination by the State Conservation Committee that operation of a proposed district is not administratively practicable and feasible and denial of a petition pursuant to such determination, subsequent petitions may be filed as aforesaid and action taken thereon in accordance with the provisions of this article.
(i) Petitions for including additional territory within an existing district may be filed with the State Conservation Committee and the proceedings herein provided for in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. The Committee shall prescribe the form for such petitions, which shall be as nearly as may be in the form prescribed in this article for petitions to organize a district. Where the total number of landowners in the area proposed for inclusion shall be is less than twenty-five, the petition may be filed when signed by a majority of the landowners of such the area and in such case no referendum need be held. In referenda upon petitions for such inclusion, all owners of land lying within the proposed additional area shall be eligible to vote.
(j) In any suit, action or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding or action of the district, the district shall be deemed to have been established in accordance with the provisions of this article upon proof of the issuance of the aforesaid certificate by the Secretary of State. A copy of such the certificate duly certified by the Secretary of State shall be admissible in evidence in any such suit, action or proceeding and shall be proof of the filing and contents thereof.
§19-21A-6. Election of supervisors for each district.
Within thirty days after the date of issuance by the Secretary of State of a certificate of organization of a conservation district, nominating petitions may be filed with the State Conservation Committee to nominate candidates for supervisors of such the district. A candidate for supervisor shall own land in the district and have education, training or experience necessary to carry out the duties required by this article and rules promulgated thereunder. A candidate shall file with the Committee a sworn written statement specifying that he or she meets the requirements of office. A candidate may not be placed on the ballot or be seated as a supervisor unless he or she meets these requirements.
The Committee shall have authority to extend the time within which nominating petitions may be filed. No such nominating petition shall be accepted by the Committee unless it shall be is subscribed by twenty-five or more owners of lands lying within the boundaries of such the district and within the boundaries of the county in which the candidate resides. Landowners Registered voters in the district may sign more than one such nominating petition to nominate more than one candidate for supervisor. The committee shall give due notice of an election to be held for the election of one supervisor from each county or portion thereof within the boundaries of the district. The names of all nominees in each county on behalf of whom such nominating petitions have been filed within the time designated, shall appear arranged in alphabetical order of the surnames upon a ballot, with a square before each name and a direction to insert an X mark in the square before any one name to indicate the voter's preference. All owners of lands lying within registered voters in the district shall be eligible to vote in such the election for one candidate two candidates from the county in which they reside. Only such landowners shall be eligible to vote. The candidate two candidates in each county who shall receive the largest number of votes cast in such the election by landowners residing in his or her county shall be one of the elected supervisors for such district. The committee shall pay all expenses of such election, shall supervise the conduct thereof, shall prescribe regulations governing the conduct of such election and the determination of the eligibility of voters therein and shall make public the results thereof.
Supervisors shall be elected in the general election to be conducted in the year two thousand eight, as nonpartisan candidates. The term of office for supervisor receiving the second highest number of votes in the general election of two thousand eight, shall be for two years, commencing on the first day of January, two thousand nine, and ending on the thirty-first day of December, two thousand eleven. Subsequent terms of office for supervisors elected thereafter shall be for four years. Persons currently holding the position of supervisor shall, regardless of the expiration of the currently designated term of office, continue to serve until the two thousand eight election.
§19-21A-7. Supervisors to constitute governing body of district; qualifications and terms of supervisors; powers and duties.

(a) The governing body of the district consists of the supervisors, appointed or elected, as provided in this article. The two supervisors appointed by the committee shall be persons who are by training and experience qualified to perform the specialized skilled services which are required of them in the performance of their duties under this section and shall be legal residents and landowners in the district.
(b) The supervisors shall designate a chairperson and may, from time to time, change the designation. The On and after the election of supervisors in two thousand eight term of office of each supervisor is three four years. A supervisor holds office until his or her successor has been elected or appointed. In case a new county or portion of a county is added to a district, the committee may appoint a supervisor to represent it until the next regular election of supervisors for the district takes place. If a vacancy occurs among the elected supervisors of a district, the Committee shall appoint a successor from the same county to fill the unexpired term. The appointment shall be made from a name or list of names submitted by local farm organizations and agencies the conservation district.
(c) When any county or portion of a county lying within the boundaries of a district has in effect eight hundred or more signed agreements of cooperation with occupiers of land located within the county, then at the next regular election of supervisors the land occupiers within the county or portion of the county are entitled to elect two supervisors to represent the county instead of one for the term and in the manner prescribed in this section. A majority of the supervisors constitutes a quorum and the concurrence of a majority in any matter within their duties is required for its determination.
(d) (c) A supervisor is entitled to expenses and a per diem not to exceed thirty dollars when engaged in the performance of his or her duties.
(e) (d) The supervisors may, with the approval of the State Committee, employ a secretary, technical experts and any other officers, agents and employees, permanent and temporary, as they may require and shall determine their qualifications, duties and compensation. The supervisors may delegate to their chairperson, to one or more supervisors or to one or more agents, or employees, those administrative powers and duties they consider proper. The supervisors shall furnish to the State Conservation Committee, upon request, copies of the ordinances, rules, orders, contracts, forms and other documents they adopt or employ and any other information concerning their activities required in the performance of State Conservation Committee's duties under this article.
(f) (e) The supervisors shall:
(1) Require the execution of surety bonds for all employees and officers who are entrusted with funds or property;
(2) Provide for the keeping of a full and accurate record of all proceedings and of all resolutions, rules and orders issued or adopted; and
(3) Provide for an annual audit of the accounts of receipts and disbursements.
(g) (f) Any supervisor may be removed by the State Conservation Committee upon notice and hearing for neglect of duty or malfeasance in office, but for no other reason.
(h) (g) The supervisors may invite the legislative body of any municipality or county located near the territory comprised within the district to designate a representative to advise and consult with the supervisors of a district on all questions of program and policy which may affect the property, water supply or other interests of the municipality or county.


NOTE: The purpose of this bill is to allow all registered voters in a conservation district to vote for the supervisor representing their interests in the district and to elect two supervisors from each county rather than one; and to set forth certain requirements for being a candidate to be supervisor.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


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