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.