Senate Bill No. 255
(By Senators Dittmar, Plymale, Ross and Grubb)
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[Introduced February 3, 1994; referred to the Committee
on Government Organization.]
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A BILL to amend and reenact sections one, one-a, one-b, two and
twenty-five, article thirteen-a, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to public service districts for water,
sewerage and gas services; authorizing county commissions to
consider the consolidation or merger of existing public
service districts and other public and private utility
services; removing the jurisdiction of the public service
commission to have final approval of the consolidation,
merger, creation, expansion and dissolution of public
service districts; authorizing the public service commission
to review plans for merger or consolidation and to provide
recommendations to county commissions; authorizing public
service districts to accept grants or to borrow funds in the
amount of twenty-five thousand dollars or less without
obtaining the prior consent and approval of the public
service commission; reducing the period for the prefiling of
a certificate of public convenience and necessity by a
public service district; and mandating that the public
service commission decide certificate cases within one
hundred fifty days of filing.
Be it enacted by the Legislature of West Virginia:
That sections one, one-a, one-b, two and twenty-five,
article thirteen-a, chapter sixteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND
GAS SERVICES.
§16-13A-1. Legislative findings.
The Legislature of the state of West Virginia hereby
determines and finds that the present system of public service
districts within the state has provided a valuable service at a
reasonable cost to persons who would otherwise have been unable
to obtain public utility services. To further this effort, and
to insure that all areas of the state are benefiting from the
availability of public service district utility services and to
further correct areas with health hazards, the Legislature
concludes that it is in the best interest of the public to
implement better management of public service district resources
by expanding the ability and the authority of the public service
commission to assist public service districts by offering advice
and assistance in operational, financial and regulatory affairs.
In addition to the expanded powers which shall be given tothe public service commission, the Legislature also concludes
that it is in the best interest of the public for each county
commission to review current technology available and consider
consolidating the consolidation or merger of existing public
service districts, and other public and private utility services
where it is feasible and will not result in the interference with
existing bond instruments. Further, if such consolidation is not
feasible, the Legislature finds that it is in the best interest
of the public for each county commission to review current
technology available and consider consolidating or centralizing
the management of public service districts within its county or
multi-county area to achieve efficiency of operations. The
Legislature also finds that additional guidelines should be
imposed on the creation of new public service districts and that
county commissions shall dissolve inactive public service
districts as hereinafter provided. The Legislature also finds
that the public service commission shall promulgate rules and
regulations to effectuate the expanded powers given to the
commission relating to public service districts.
§16-13A-1a. Jurisdiction of the public service commission.
The jurisdiction of the public service commission relating
to public service districts shall be expanded to include the
following powers and such powers shall be in addition to all
other powers of the public service commission set forth in this
code:
(a) To study, modify, approve, deny or amend review theplans created under section one-b of this article for
consolidation or merger of public service districts and their
facilities, personnel or administration, and provide county
commissions with its recommendations;
(b) To review and update the plans created under section
one-b of this article, from time to time, at the request of the
county commissions, or upon its own initiative based upon a
determination of need;
(b) (c) To petition the appropriate circuit court for the
removal of a public service district board member or members; and
(c) (d) To create by general order a separate division
within the public service commission to provide assistance to
public service districts in technological, operational, financial
and regulatory matters.
§16-13A-1b. County commissions to develop plan to create,
consolidate, merge, expand or dissolve public service
districts.
Each county commission shall conduct a study of all public
service districts which have their principal offices within its
county and shall develop a plan relating to the creation,
consolidation, merger, expansion or dissolution of such districts
or the consolidation or merger of management and administrative
services and personnel and shall present such plan to the public
service commission for approval, disapproval, or modification its
review and recommendation. Such study shall include a
consideration of the possibility of the consolidation or mergerof such districts with other public and/or private utilities
providing like services in the county: Provided, That within
ninety days of the effective date reenactment of this section,
each county commission in this state which has not yet conducted
such a study shall elect either to perform its own study or
request that the public service commission perform such study.
Each county commission electing to perform its own study shall
have one year from the date of election to present such plan to
the public service commission. For each county wherein the
county If any such county commission elects not to perform its
own study, the public service commission shall conduct a study of
such county. The public service commission shall establish a
schedule for such studies upon a priority basis, with those
counties perceived to have the greatest need of creation or
consolidation of public service districts receiving the highest
priority. In establishing the priority schedule, and in the
performance of each study, the department of health bureau of
public health and the department division of natural resources
shall offer their assistance and cooperation to the public
service commission. Upon completion by the public service
commission of each study, it shall be submitted to the
appropriate county commission for review and comment and for any
other action deemed appropriate by the county commission. Each
county commission shall have six months in which to review the
study conducted by the public service commission, suggest changes
or modifications thereof, and present such plan to the publicservice commission. All county plans, whether conducted by the
county commission itself or submitted as a result of a public
service commission study, shall, by order, be approved,
disapproved or modified by the public service commission in
accordance with rules and regulations promulgated by the public
service commission each county commission and such order shall be
implemented by the county commission.
§16-13A-2. Creation of districts by county commission;
enlarging, reducing or dissolving district; consolidation;
agreements, etc.; infringing upon powers of county
commission; filing list of members and districts with the
secretary of state.
The county commission of any county may, on its own motion
by order duly adopted or upon the recommendation of the public
service commission, propose the creation of such public service
district within such county, setting forth in such order a
description, including metes and bounds, sufficient to identify
the territory to be embraced therein and the name of such
proposed district, or twenty-five percent of the registered
voters who reside within the limits of such proposed public
service district within one or more counties may petition for the
creation thereof, which petition shall contain a description,
including metes and bounds, sufficient to identify the territory
to be embraced therein and the name of such proposed district:
Provided, That after the effective date of this section, no new
public service district shall be created under this sectionwithout the written consent and approval of the public service
commission, which approval and consent shall be in accordance
with rules and regulations promulgated by the public service
commission and may only be requested after consent is given by
the appropriate county commission or commissions pursuant to this
section. Any territory may be included regardless of whether or
not such territory includes one or more cities, incorporated
towns or other municipal corporations which own and operate any
public service properties and regardless of whether or not it
includes one or more cities, incorporated towns or other
municipal corporations being served by privately owned public
service properties: Provided, however, That the same territory
shall may not be included within the boundaries of more than one
public service district except where such territory or part
thereof is included within the boundaries of a separate public
service district organized to supply water, sewerage services or
gas facilities not being furnished within such territory or part
thereof: Provided, further however, That no city, incorporated
town or other municipal corporation shall may be included within
the boundaries of such proposed district except upon the adoption
of a resolution of the governing body of such city, incorporated
town or other municipal corporation consenting thereto.
Such petition shall be filed in the office of the clerk of
the county commission of the county in which the territory to
constitute the proposed district is situated, and if such
territory is situated in more than one county, then such petitionshall be filed in the office of the clerk of the county
commission of the county in which the major portion of such
territory extends, and a copy thereof (omitting signatures) shall
be filed with each of the clerks of the county commission of the
other county or counties into which the territory extends. The
clerk of the county commission receiving such petition shall
present it to the county commission of such county at the first
regular meeting after such filing or at a special meeting called
for the consideration thereof.
When the county commission of any county enters an order on
its own motion proposing the creation of a public service
district, as aforesaid, or when a petition for such creation is
presented, as aforesaid, the county commission shall at the same
session fix a date of hearing in such county on the creation of
the proposed public service district, which date so fixed shall
be not more than forty days nor less than twenty days from the
date of such action. If the territory proposed to be included is
situated in more than one county, the county commission, when
fixing a date of hearing, shall provide for notifying the county
commission and clerk thereof of each of the other counties into
which the territory extends of the date so fixed. The clerk of
the county commission of each county in which any territory in
the proposed public service district is located shall cause
notice of such hearing and the time and place thereof, and
setting forth a description of all of the territory proposed to
be included therein to be given by publication as a Class I legaladvertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be by publication, if available, in each
city, incorporated town or municipal corporation if available in
each county in which any territory in the proposed public service
district is located. The publication shall be at least ten days
prior to such hearing. In all cases where proceedings for the
creation of such public service districts are initiated by
petition as aforesaid, the person filing the petition shall
advance or satisfactorily indemnify the payment of the cost and
expenses of publishing the hearing notice, and otherwise the
costs and expenses of such notice shall be paid in the first
instance by the county commission out of contingent funds or any
other funds available or made available for that purpose. In
addition to the notice required herein to be published, there
shall also be posted in at least five conspicuous places in the
proposed public service district, a notice containing the same
information as is contained in the published notice. The posted
notices shall be posted not less than ten days before the
hearing.
All persons residing in or owning or having any interest in
property in such proposed public service district shall have an
opportunity to be heard for and against its creation. At such
hearing the county commission before which the hearing is
conducted shall consider and determine the feasibility of the
creation of the proposed district. If the county commissiondetermines that the construction or acquisition by purchase or
otherwise and maintenance, operation, improvement and extension
of public service properties by such public service district will
be conducive to the preservation of public health, comfort and
convenience of such area, the county commission shall by order
create such public service district. If the county commission,
after due consideration, determines that the proposed district
will not be conducive to the preservation of public health,
comfort or convenience of such area or that the creation of the
proposed district as set forth and described in the petition or
order is not feasible, it may refuse to enter an order creating
the district or it may enter an order amending the description of
the proposed district and create the district as amended. If the
county commission determines that any other public service
district or districts can adequately serve the area of the
proposed public service district, whether by expansion, merger or
other means, it shall refuse to enter an order creating the
proposed district and shall enter an order expanding, merging or
consolidating the area with an existing public service district
or with a public or private utility providing like services in
the county, in accordance with rules and regulations adopted by
the public service commission for such purpose: Provided, That
no expansion of a public service district may occur if the
present or proposed physical facilities of the public service
district are determined by the appropriate county commission or
the public service commission to be inadequate to provide suchexpanded service. The clerk of the county commission of each
county into which any part of such district extends shall retain
in his office an authentic copy of the order creating, expanding,
merging or consolidating the district: Provided, however, That
within ten days after the entry of an order creating, expanding
or merging or consolidating a district, such order must be filed
for review and approval by the public service commission. The
public service commission shall provide a hearing in the affected
county on the matter and may approve, reject or modify the order
of the county commission if it finds it is in the best interests
of the public to do so. The public service commission shall
adopt rules and regulations relating to such filings and the
approval, disapproval or modification of county commission orders
for creating, expanding, merging or consolidating districts.
The county commission may, if in its discretion it deems it
necessary, feasible and proper, enlarge the district to include
additional areas, reduce the area of the district, where
facilities, equipment, service or materials have not been
extended, or dissolve the district if inactive or establish or
consolidate two or more such districts. If consolidation of
districts is not feasible, the county commission may consolidate
and centralize management and administration of districts within
its county or multi-county area to achieve efficiency of
operations: Provided, That where the county commission
determines on its own motion by order entered of record, or there
is a petition to enlarge the district, merge and consolidatedistricts with other districts or with other public or private
utilities, or the management and administration thereof, reduce
the area of the district or dissolve the district if inactive,
all of the applicable provisions of this article providing for
hearing, and notice of hearing and approval by the public service
commission shall apply with like effect as if a district were
being created. The commission county commissions shall at all
times attempt to bring about the expansion or merger of existing
public service districts in order to provide increased services
and to eliminate the need for creation of new public service
districts in those areas which are not currently serviced by a
public service district: Provided, however, That where two or
more public service districts are consolidated pursuant to this
section, or where any public service district is consolidated
with a public or private utility, any rate differentials may
continue for the period of bonded indebtedness incurred prior to
consolidation. The districts may not enter into any agreement,
contract or covenant that infringes upon, impairs, abridges or
usurps the duties, rights or powers of the county commission, as
set forth in this article, or conflicts with any provision of
this article. A list of all districts and their current board
members shall be filed by the county commission with the
secretary of state and the public service commission by the first
day of July of each year.
§16-13A-25. Borrowing and bond issuance; procedure.
Notwithstanding any other provisions of this article to thecontrary, a public service district shall may not borrow money,
enter into contracts for the provision of engineering, design or
feasibility studies, issue or contract to issue revenue bonds or
exercise any of the powers conferred by the provisions of
sections thirteen, twenty or twenty-four of this article, without
the prior consent and approval of the public service commission:
Provided, That public service districts may accept grants or
borrow funds in an amount of twenty-five thousand dollars or less
without obtaining the prior consent and approval of the public
service commission. Unless the properties to be constructed or
acquired represent ordinary extensions or repairs of existing
systems in the usual course of business, a public service
district must first obtain a certificate of public convenience
and necessity from the public service commission in accordance
with the provisions of chapter twenty-four of this code, when a
public service district is seeking to acquire or construct public
service property.
Sixty Thirty days prior to making formal application for
said certificate, the public service district shall prefile with
the public service commission its plans and supporting
information for said project and shall publish a Class II legal
advertisement in a newspaper or newspapers of general circulation
in each city, incorporated town or municipal corporation if
available in the district, which legal advertisement shall state:
(a) The amount of money to be borrowed, or the amount of
revenue bonds to be issued: Provided, That if the amount is anestimate, the notice may be stated in terms of an amount "not to
exceed" a specific amount;
(b) The interest rate and terms of the loan or bonds:
Provided, That if the interest rate is an estimate, the notice
may be stated in terms of a rate "not to exceed" a specific rate;
(c) The public service properties to be acquired or
constructed, and the cost of same;
(d) The anticipated rates which will be charged by the
district: Provided, That if the rates are an estimate, the
notice may be stated in terms of rates "not to exceed" a specific
rate; and
(e) The date that the formal application for a certificate
of public convenience and necessity is to be filed with the
public service commission. The public service commission may,
not later than one hundred and fifty days after the filing of
said application, grant its consent and approval for the
certificate, or any other request for approval under this
section, subject to such terms and conditions as may be necessary
for the protection of the public interest pursuant to the
provisions of chapter twenty-four of this code, or may withhold
such consent and approval for the protection of the public
interest.
In the event of disapproval, the reasons therefor shall be
assigned in writing by the commission.
NOTE: The purpose of this bill is to remove thejurisdiction of the public service commission to consider county
plans for consolidation or merger of public service districts; to
permit public service districts to accept grants and borrow up to
$25,000 without public service commission approval; to reduce the
time period for prefiling certificates of public convenience and
necessity; and to limit the time in which the public service
commission must decide certificate cases.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.