H. B. 4544
(By Delegates Trump, Mezzatesta, Faircloth,
Douglas, Doyle and Michael)
[Introduced February 24, 1998; referred to the
Committee on Finance.]
A BILL to amend and reenact sections two and ten, article
fifteen-a, chapter thirty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating
to funding by the infrastructure council of projects;
defining "need of the project sponsors"; providing that
population increases in counties are deemed as evidence by
the council that there is a need for projects; and,
providing the rule, for the purposes of the council
determining median household income under section ten,
allows the council to conduct an income survey of households
that will be served by a project.
Be it enacted by the Legislature of West Virginia:
That sections two and ten, article fifteen-a, chapter
thirty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-2. Definitions.
For purposes of this article:
(a) "Code" means the code of West Virginia, one thousand
nine hundred thirty-one, as amended;
(b) "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;
(c) "Council" means the West Virginia infrastructure and
jobs development council created in section three of this
article;
(d) "Division of environmental protection" means the
division 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;
(e) "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;
(f) "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;
(g) "Emergency project" means a project which the council
has determined (i) is essential to the immediate economic
development of an area of the state and (ii) will not likely be
developed in that area if construction of the project is not
commenced immediately;
(h) "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;
(i) "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;
(j) "Infrastructure fund" means the West Virginia
infrastructure fund created and established in section nine of
this article;
(k) "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 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, roads, bridges, railroad spurs,
buildings, docking and shipping facilities, curbs, gutters,
sidewalks, and drainage and flood control facilities, whether on
or off the site;
(l) "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;
(m) "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.
(m) (n) "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;
(n) (o) "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;
(o) (p) "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;
(p) (q) "Person" means any individual, corporation,
partnership, association, limited liability company or any other
form of business organization;
(q) (r) "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;
(r) (s) "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;
(s) (t) "State infrastructure agency" means the division of
health, division 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;
(t) (u) "Waste water facility" means all facilities, land
and equipment used for or in connection with treating,
neutralizing, disposing of, stabilizing, cooling, segregating or
holding waste water, 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;
(u) (v) "Water development authority" means the West
Virginia water development authority established under article
five-c, chapter twenty of this code, or any successor to all or
any substantial part of its powers and duties; and
(v) (w) "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-10. Recommendations by council for expenditures of funds
by loan, grant or for engineering assistance.
(a) To further accomplish the purpose and intent of this
article, the water development authority shall use the moneys in
the infrastructure fund created pursuant to section nine of this
article, upon receipt of one or more recommendations from the
council pursuant to section five of this article, to make loans,
with or without interest, loan guarantees or grants and to
provide other assistance, financial, technical or otherwise, to
finance all or part of the costs of infrastructure projects or
projects to be undertaken by a project sponsor: Provided, That
any moneys disbursed from the infrastructure fund in the form of
grants shall not exceed twenty percent of the total funds
available for the funding of projects. No loan, loan guarantee,
grant or other assistance shall be made or provided except upon
a determination by the council that the loan, loan guarantee,
grant or other assistance and the manner in which it will be
provided are necessary or appropriate to accomplish the purposes
and intent of this article, based upon an application submitted
to the council: Provided, however, That no grant shall be made
to a project sponsor that is not a governmental agency or a not for profit corporation under the provisions of section 501(c) of
the Internal Revenue Code of 1986, as amended. Applications for
loans, loan guarantees, grants or other assistance may be
submitted by a project sponsor for one or more infrastructure
projects on preliminary application forms prepared by the council
pursuant to section four of this article. Any recommendation of
the council approving a loan, loan guarantee, grant or other
assistance shall include a finding and determination by the
council that the requirements of this section have been met. The
council shall base any decisions to loan money for projects to
project sponsors pursuant to this article solely on the need of
the project sponsors.
(b) The council has the authority in its sole discretion to
make grants to project sponsors if it finds that: (1) The level
of rates for the users would otherwise be an unreasonable burden
given the users' likely ability to pay; or (2) the absence of a
sufficient number of users prevents funding of the project except
through grants: Provided, That no project sponsor shall receive
infrastructure grant money in an amount in excess of fifty
percent of the total cost of the project. Therefore, the council
may consider the economic or financial conditions of the area to
be served. As a condition for receipt of a grant under this
subsection, the council may require, in addition to any other
conditions, that the applicant pursue other state or federal grant or loan programs. Upon a recommendation by the council,
the water development authority shall provide the grant in
accordance with the recommendation. The council shall develop
criteria to be considered in making grants to project sponsors
which shall require consideration of the economic or financial
conditions of the area to be served and the availability of other
funding sources. The council shall adopt procedural rules
regarding the manner in which grants will be awarded in
conformity with this section. The procedural rules shall be
adopted pursuant to article three, chapter twenty-nine-a of this
code.
(c) The council shall affix a mandatory minimum end user
utility rate that must be met by the project sponsor before grant
assistance may be awarded. The mandatory minimum utility rate
shall be established by legislative rule promulgated in
accordance with article three, chapter twenty-nine-a of this
code. The rule shall provide that the mandatory minimum utility
rate be based upon a uniform statewide percentage of the median
household income in a particular geographic area which is
rationally related to the geographic area of the project to be
served. The rule shall provide, for the purposes of this
section, that median household income in a particular geographic
area may be determined by an income survey of the households
which will be served by the project.
(d) No loan or grant funds may be made available for a
project if the project to be funded will provide subsidized
services to certain users in the service area of the project.
(e) Notwithstanding any other provision of this article to
the contrary, engineering studies and requirements imposed by the
council for preliminary applications shall not exceed those
engineering studies and requirements which are necessary for the
council to determine the economic feasibility of the project. If
the council determines that the engineering studies and
requirements for the pre-application would impose an undue
hardship on any project sponsor, the council may provide funding
assistance to project sponsors to defray the expenses of the pre- application process from moneys available in the infrastructure
fund for making loans: Provided, That the council may only
provide funding assistance in an amount equal to five thousand
dollars or fifty percent of the total preapplication cost of the
project, whichever amount is greater. If the project is
ultimately approved for a loan by the council, the amount of
funding assistance provided to the project sponsor for the pre- application process shall be included in the total amount of the
loan to be repaid by the project sponsor. If the project is not
ultimately approved by the council, then the amount of funding
assistance provided to the project sponsor will be considered a
grant by the council and the total amount of the assistance shall be forgiven. In no event may the amount of funding assistance
provided to all project sponsors exceed, in the aggregate, one
hundred thousand dollars annually.
NOTE: The purpose of this bill, in the context of funding
by the infrastructure council for county projects and county
project proposals is to define the terms "need of the project
sponsors," to provide that population increases in counties are
deemed as evidence by the council that there is a need for
projects, and, to provide that the rule, for the purposes of the
council determining median household income under section ten,
article fifteen-a, chapter thirty-one in order to set a mandatory
minimum utility rate in county that must be met by a project
sponsor before grant assistance may be awarded, allows the
council to conduct an income survey of households that will be
served by a project.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.