Senate Bill No. 700
(By Senators McCabe, Bailey and Minard)
[Introduced March 21, 2005; referred to the Committee
on Economic Development; and then to the Committee on Finance.]
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 facilities.
(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.
(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 municipality, 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 municipality or public service district
without cost to the municipality 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 the code.
§5B-1B-3. Creation of community infrastructure investment project;
certificate of appropriateness; rule-making authority.
(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 municipality 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
municipality 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 municipality or public service district
as evidence of such approval.
(c) Municipalities 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) Municipalities 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
(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 municipality 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) At the conclusion of a fixed term of months, the title to
the public facility shall be transferred without cost to the
municipality 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
(5) The municipality 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 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 until such time as new rates may be 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 municipality
pursuant to the community infrastructure investment agreement;
(7) Confirmation that the agreement does not violate any of the
bond covenants imposed on the municipality or public service
(8) Proof that necessary permits, where applicable, have been
obtained from the Division of Health and the Department of
Environmental Protection; and
(9) 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, nor the authority of the
Division of Health pursuant to the provisions of chapter sixteen of
§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 the code until such time as title to the
public facility shall be transferred to the municipality 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, et seq.
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.
NOTE: The purpose of this bill is to facilitate the
construction of certain public water and sewer infrastructure
projects without cost to the public; for the promotion of economic
development; and to provide assistance to municipalities and public
service districts in achieving compliance with state and federal
water quality standards.
This article is new; therefore strike-thought and underscoring
have been omitted.