COMMITTEE SUBSTITUTE

FOR


Senate Bill No. 206

(By Senators Oliverio, Dempsey, Fanning, Foster, Hunter, Jenkins, Kessler, Barnes, Weeks, Unger, McKenzie, McCabe and Sharpe)

____________

[Originating in the Committee on the Judiciary;

reported February 28, 2006.]

____________



A BILL to amend and reenact §7-1-3u of the Code of West Virginia, 1931, as amended; to amend and reenact §20-1A-3 of said code; to amend and reenact §21-9-4 and §21-9-12 of said code; and to amend and reenact §24-2-2 of said code, all relating to floodplain management and flood debris generally; requiring floodplain management plans to regulate new construction, placement of manufactured housing and storage of materials which may become flood debris or present additional flood hazards; requiring local governments to establish process for approval of construction or installation of residence or business in floodplain; authorizing reasonable fee for services provided by local government; requiring local governments establish penalties for violations of floodplain management ordinances or plans; requiring landowner remove certain structures located in streambed under certain circumstances; authorizing Public Land Corporation enter into interagency agreements for assistance in removing certain structures for streambeds; authorizing Public Land Corporation remove certain structures from streambeds in limited circumstances; clarifying rights, duties and privileges under issuance of right of entry; providing for enforcement of right of entry; authorizing Division of Labor to regulate installation of manufactured housing in regulated floodplains; authorizing rulemaking; requiring licensed dealers and installers of manufactured housing obtain certificate of approval for installation of homes in regulated floodplains; providing for recordkeeping; providing for penalties; prohibiting connection of electric service to new construction of a residence or business or installation or relocation of manufactured housing in regulated floodplain without local government approval; requiring landowner to show proof of local government approval to electrical inspector or provide certification number; establishing certain requirements for filing complaints with the Public Service Commission; and requiring rulemaking by Public Service Commission.

Be it enacted by the Legislature of West Virginia:
That §7-1-3u of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §20-1A-3 of said code be amended and reenacted; that §21-9-4 and §21-9-12 of said code be amended and reenacted; and that §24-2-2 of said code be amended and reenacted; all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3u. Authority of counties and municipalities to treat streams to prevent floods.

(a) To protect people and property from floods, counties and municipalities are hereby empowered, unless otherwise prohibited by state or federal law, to rechannel and dredge streams; remove accumulated debris, snags, sandbars, rocks and any other kinds of obstructions from streams; straighten stream channels; and carry out erosion and sedimentation control measures and programs.
(b) For stream treatment to prevent floods as provided in this section, counties and municipalities are hereby further empowered to levy, within all constitutional and statutory limitations; acquire property by purchase, exercise of the right of eminent domain, lease, gift or grant; accept any and all benefits, moneys, services and assistance which may be available from the federal and state government or any private source; issue and sell bonds within the constitutional and statutory limitations prescribed by law for the issuance and sale of bonds by counties and municipalities for public purposes generally. Any such levy shall be equal and uniform throughout the county or municipality.
(c) The power and authority granted in this section, may be exercised by any county or municipality in cooperation with each other or separately as provided in section three-I of this article. Any county or municipality which exercises any power or authority set forth in this section shall comply with all applicable provisions of federal and state laws and rules and regulations lawfully promulgated thereunder.
(d) Each county commission and municipal governing body shall, as part of its flood plain management plan, on before June thirtieth, two thousand seven, regulate the location of any building, manufactured housing or recreational vehicle, whether permanent or temporary, utilized for a business, residence, vacation home or camp and storage of hazardous or floatable materials, outbuildings, private culverts, pipes and fuel oil and propane tanks within the regulated flood plain as defined by the county or municipal ordinance or flood management plan as approved by Federal Emergency Management Agency.
(1) The county commission or municipal governing body may, prohibit such structures, vehicles and materials in the regulated flood plain or require such structures, vehicles and materials to be elevated above the level of the regulated flood plain on reinforced piers, securely anchored to a fixed structure on a permanent foundation, relocated out of the regulated flood plain or utilize other appropriate measures designed to keep such items out of streams, resist expected flood waters and impact from debris.
(2) Each county commission and municipal governing body shall establish and enforce penalties for violations of its flood plain management plan and any applicable ordnance.
(3) Each county commission and municipal governing body shall establish a process for certifying whether proposed construction or installation of any public or private business or residence is located in the regulated flood plain designated on flood plain maps or based on other credible, reliable information available to the county or municipal flood plain manager. A reasonable fee shall be established to cover the cost of making the certification.
(4) Each county commission and municipal governing body shall establish a process for approving construction or installation of businesses or residences in the regulated flood plain. Any new construction or installation in the regulated flood plain shall, at a minimum, meet the standards for construction of a building for business or residential purposes or location of manufactured housing in a flood plain published by the Federal Emergency Management Agency or the United States Department of Housing and Urban Development Authority, which ever is more protective of human health and safety. More stringent standards may be adopted by a county or municipal government when necessary to protect the health, safety and welfare of the citizens of this State. Reasonable fees shall be established to cover the cost of approving construction or installation in the regulated flood plain and any additional services provided by the local government such as engineering design and inspecting the site, construction or installation.
(5) A county commission or municipal governing body may authorize and approve private contractors to conduct the inspections and issue the certification or approval required by this subsection.
(6) A county commission or municipal governing body that allows new or relocated businesses or residents to locate in the regulated flood plain shall develop a procedure for issuing certificates and design approvals to the businesses and residents in a timely manner prior to the electrical inspection being conducted at the business or residence. The procedure shall be integrated with the system for electrical inspections prior to connection of electric utility service to the business or residence.
(7) A county commission or municipal governing body that allows businesses or residents to locate in the regulated flood plain shall require the property owner to obtain adequate flood insurance: Provided, that the county commission or municipal governing body may exempt any business which would not suffer undue financial loss as the result of a flood: Provided, however That no such exemption may be granted if it would jeopardize receipt of federal assistance after a flood.
(e) The term "stream" as used in this section means any watercourse, whether natural or man-made, distinguishable by banks and a bed, regardless of their size, through which water flows continually or intermittently, regardless of its volume.
CHAPTER 20. NATURAL RESOURCES.

 §20-1A-3. Public land corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the state auditor or any local, state or federal agency, by purchase, lease or other agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement, receive by gifts and devises, or exchange, rights-of-way, easements, waters and minerals suitable for public use;
(3) Require the landowner to remove, at his or her expense, any abandoned structure located in a streambed, including, but not limited to private culverts, pipes, bridges and low water crossings, except those owned or operated by a railroad or the division of highways. Removal may be required after the corporation has determined that the following conditions exist: (I) the structure is abandoned and (ii) the structure obstructs, inhibits or otherwise alters the flow of the watercourse and causes or increases the likelihood of flooding or streambed erosion, or causes accumulation of materials behind the structure that alters or otherwise inhibits the flow and direction of the watercourse. (4) Require a landowner to remove, at his or her expense, any structure that has been placed in a streambed without the required right of entry into the streambed from the public land corporation or any structure that varies from the structure which was granted a right of entry. Any structure which is not removed within a reasonable amount of time by the owner shall be removed by the public land corporation at the owner's expense. The public land corporation may use any lawful means necessary to collect reimbursement from the owner for any structure that the corporation removes from a streambed. All reimbursement moneys shall be deposited into the Planning and Development-Public Land Corporation Fund and may be expended for removal of structures in streambed.
(5) Enter into interagency agreements with any federal, state or local government or contract with private business for removal or assistance in removing structures from streambed.
(3) (6) Sell or exchange public lands where it is determined that the sale or exchange of such tract meets any or all of the following disposal criteria:
(A) The tract was acquired for a specific purpose and the tract is no longer required for that or any other state purpose;
(B) Disposal of the tract serves important public objectives including, but not limited to, expansion of communities and economic development which cannot be achieved on lands other than public lands and which clearly outweigh other public objectives and values including, but not limited to, recreation and scenic values which would be served by maintaining the tract in state ownership; or
(C) The tract, because of its location or other characteristics, is difficult and uneconomic to manage as part of the public lands and is not suitable for management by another state department or agency.
(4) (7) Sell, purchase or exchange lands or stumpage for the purpose of consolidating lands under state or federal government administration subject to the disposal criteria specified in subdivision (3) (6) of this section;
(5) (8) Negotiate and effect loans or grants from the government of the United States or any agency thereof for acquisition and development of lands as may be authorized by law to be acquired for public use;
(6) (9) Expend the income from the use and development of public lands for the following purposes:
(A) Liquidate obligations incurred in the acquisition, development and administration of lands, until all obligations have been fully discharged;
(B) Purchase, develop, restore and preserve for public use, sites, structures, objects and documents of prehistoric, historical, archaeological, recreational, architectural and cultural significance to the state of West Virginia; and
(C) Obtain grants or matching moneys available from the government of the United States or any of its instrumentalities for prehistoric, historic, archaeological, recreational, architectural and cultural purposes.
(7) (10) Designate lands, to which it has title, for development and administration for the public use including recreation, wildlife stock grazing, agricultural rehabilitation and homesteading or other conservation activities;
(8) (11) Enter into leases as a lessor for the development and extraction of minerals, including coal, oil, gas, sand or gravel, except as otherwise circumscribed herein: Provided, That leases for the development and extraction of minerals shall be made in accordance with the provisions of sections five and six of this article. The corporation shall reserve title and ownership to the mineral rights in all cases;
(9) (12) Convey, assign, or allot lands to the title or custody of proper departments or other agencies of state government for administration and control within the functions of departments or other agencies as provided by law;
(10) (13) Make proper lands available for the purpose of cooperating with the government of the United States in the relief of unemployment and hardship or for any other public purpose.
(b) There is hereby created in the state treasury a special public land corporation fund into which shall be paid all proceeds from public land sales and exchanges and rents, royalties and other payments from mineral leases. The corporation may acquire public lands from use of the payments made to the fund, along with any interest accruing to the fund. The corporation shall report annually, just prior to the beginning of the regular session of the Legislature, to the finance committees of the Legislature on the financial condition of the special fund. The corporation shall report annually to the Legislature on its public land holdings and all its leases, its financial condition and its operations and shall make such recommendations to the Legislature concerning the acquisition, leasing, development, disposition and use of public lands.
(c) All state agencies, institutions, divisions and departments shall make an inventory of the public lands of the state as may be by law specifically allocated to and used by each and provide to the corporation a list of such public lands and minerals, including their current use, intended use or best use to which lands and minerals may be put: Provided, That the division of highways need not provide the inventory of public lands allocated to and used by it. The inventory shall identify those parcels of land which have no present or foreseeable useful purpose to the state of West Virginia. The inventory shall be submitted annually to the corporation by the first day of August. The corporation shall compile the inventory of all public lands and minerals and report annually to the Legislature by no later than the first day of January, on its public lands and minerals and the lands and minerals of the other agencies, institutions, divisions or departments of this state which are required to report their holdings to the corporation as set forth in this subsection, and its financial condition and its operations.
(d) A right of entry granted by the public land corporation is a privilege authorizing specific activity in a streambed. Failure to obtain a right of entry into a streambed or changing the structure permitted in a streambed without obtaining an amended right of entry is a violation punishable by a civil penalty not to exceed five hundred dollars per day for each day the violation exists.
(1) Any law enforcement officer may enter private property to investigate a potential violation and may issue a citation to a landowner if a violation exists.
(2) A landowner may appeal a citation to the director of the division of natural resources. The decision of the director is the final agency decision and may be appealed by either party under the provisions of chapter twenty-nine, article five of this code.
(3) All fines collected pursuant to this section shall be deposited in the Planning and Development-Public Land Corporation Fund.
(4) The corporation shall propose for promulgation, in accordance with the provisions of chapter twenty-nine-a, article three of this code, rules for obtaining a right of entry and determining what may be placed in streambed and establishing procedures required by this section.
CHAPTER 21. LABOR.
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY STANDARDS.

§21-9-4. General powers and duties; persons adversely affected entitled to hearing.

(a) The board shall have the power to:
(1) Regulate its own procedure and practice;
(2) Propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article and the federal standards;
(3) Advise the commissioner in all matters within his jurisdiction under this article;
(4) Prepare and submit to HUD a state plan application seeking the designation of the board as a state administrative agency for the purpose of administering and enforcing the federal standards and take all other action necessary to enable the board to serve as a state administrative agency;
(5) Study and report to the governor and the Legislature on matters pertinent to the manufacture, distribution and sale of manufactured housing in this state and recommend changes in the law determined by the board to be necessary to promote consumer safety and protect purchasers of manufactured housing;
(6) Conduct hearings and presentations of views consistent with its rules and the federal standards;
(7) Approve or disapprove applications for licenses to manufacturers, dealers, distributors and contractors in accordance with section nine of this article, and revoke or suspend licenses in accordance with that section, and set the amounts of license fees and bonds or other forms of assurance in accordance with sections nine and ten of this article;
(8) Delegate to and authorize the commissioner to exercise the powers and duties of the board that the board may determine, including without limitation, the authority to approve, disapprove, revoke or suspend licenses in accordance with section nine of this article;
(9) Require all new or previously owned manufactured homes installed in a flood plain area in this state after the amendment and reenactment of this section during the two thousand six legislative session to be sufficiently secured to prevent the home from being separated from its foundation or location during a flood.
(A) The board shall promulgate a rule in accordance with the provisions of chapter twenty-nine, article three of this code to implement the requirements of this subdivision.
(B) The board shall adopt standards which are no less stringent than the standards published by the Federal Emergency Management Agency. More stringent standards may be adopted when necessary to protect the health, safety and welfare of the citizens of this State.
(C) The rule shall require licensed dealers and installers to obtain from the homeowner or obtain on behalf of the homeowner a certificate from the county or municipal flood plain manager or licensed engineer approved by the local flood plain manager that the proposed home site is not in the regulated flood plain or that the installation design has been approved by the local flood plain manager or a licensed engineer approved by the local flood plain manager, for site specific flooding conditions.
 (D) A copy of the site certification or installation approval shall be maintained in a safe location by the licensed dealer or installer for a minimum of seven years.
(E) The board shall require and provide all licensed dealers and installers of manufactured housing information and practical guidance and require regular training detailing the flood plain installation requirements set forth in this subdivision or other requirements required by a federal, state or local government.
(F) In addition to any other penalties provided by law, any person failing to comply with the provisions of this section is in violation of the applicable county or municipal flood plain management plan and any applicable ordnance.
(b) Any person adversely affected by a decision of the board or the commissioner shall be afforded an opportunity for hearing before the board in accordance with section one, article five, chapter twenty-nine-a, section one, article five of this code.
§21-9-12. Violation of article; penalties; injunction.

(a) Any person who violates any of the following provisions relating to manufactured homes or any legislative rule proposed by the board pursuant to the provisions of this article, is liable to the state for a penalty, as determined by the board, not to exceed one thousand dollars for each violation. Each violation constitutes a separate violation with respect to each manufactured home, except that the maximum penalty may not exceed one million dollars for any related series of violations occurring within one year from the date of the first violation. No person may:
(1) Manufacture for sale, lease, sell, offer for sale or lease, or introduce or deliver, or import into this state any manufactured home which is manufactured on or after the effective date of any applicable standard established by a rule promulgated by the board pursuant to the provisions of this article, or any applicable federal standard, which does not comply with that standard.
(2) Fail or refuse to permit access to or copying of records, or fail to make reports or provide information or fail or refuse to permit entry or inspection as required by the provisions of this article.
(3) Fail to furnish notification of any defect as required by the provisions of 42 U.S.C. §5414.
(4) Fail to issue a certification required by the provisions of 42 U.S.C. §5415 or issue a certification to the effect that a manufactured home conforms to all applicable federal standards, when the person knows or in the exercise of due care would have reason to know that the certification is false or misleading in a material respect.
(5) Fail to establish and maintain records, make reports, and provide information as the board may reasonably require to enable the board to determine whether there is compliance with the federal standards; or fail to permit, upon request of a person duly authorized by the board, the inspection of appropriate books, papers, records and documents relative to determining whether a manufacturer, dealer, distributor or contractor has acted or is acting in compliance with the provisions of this article or applicable federal standards.
(6) Issue a certification pursuant to the provisions of 42 U.S.C. §5403(a), when the person knows or in the exercise of due care would have reason to know that the certification is false or misleading in a material respect.
(7) Violate the provisions of section four, subsection (a), subdivision nine of this article, any person found guilty of such violation will be subjected to double the maximum penalty provided by this section and disciplinary action by the board.
(b) Subdivision (1), subsection (a) of this section does not apply to:
(1) The sale or the offer for sale of any manufactured home after the first purchase of it in good faith for purposes other than resale;
(2) Any person who establishes that he did not have reason to know in the exercise of due care that the manufactured home is not in conformity with applicable federal standards; or
(3) Any person who, prior to the first purchase, holds a certificate by the manufacturer or importer of the manufactured home to the effect that the manufactured home conforms to all applicable federal standards, unless that person knows that the manufactured home does not conform to those standards.
(c) Any manufacturer, dealer, distributor or contractor who engages in business in this state without furnishing a bond or other form of assurance as required by the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than fifty dollars for each day the violation continues.
(d) The board may institute proceedings in the circuit court of the county in which the alleged violation occurred or are occurring to enjoin any violation of the provisions of this article.
(e) Any person or officer, director, partner or agent of a corporation, partnership or other entity who willfully or knowingly violates any of the provisions listed in subsection (a) of this section, in any manner which threatens the health or safety of any purchaser, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for a period of not more than one year, or both fined and imprisoned.
(f) Nothing in this article applies to any bank or financial institution engaged in the disposal of foreclosed or repossessed manufactured homes.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.

§24-2-2. General power of commission to regulate public utilities.

(a) The commission is hereby given power to investigate all rates, methods and practices of public utilities subject to the provisions of this chapter; to require them to conform to the laws of this state and to all rules, regulations and orders of the commission not contrary to law; and to require copies of all reports, rates, classifications, schedules and timetables in effect and used by the public utility or other person, to be filed with the commission, and all other information desired by the commission relating to the investigation and requirements, including inventories of all property in such form and detail as the commission may prescribe. The commission may compel obedience to its lawful orders by mandamus or injunction or other proper proceedings in the name of the state in any circuit court having jurisdiction of the parties or of the subject matter, or the supreme court of appeals direct, and the proceedings shall have priority over all pending cases. The commission may change any intrastate rate, charge or toll which is unjust or unreasonable or any interstate charge with respect to matters of a purely local nature which have not been regulated by or pursuant to an act of Congress and may prescribe a rate, charge or toll that is just and reasonable, and change or prohibit any practice, device or method of service in order to prevent undue discrimination or favoritism between persons and between localities and between commodities for a like and contemporaneous service. But in no case shall the rate, toll or charge be more than the service is reasonably worth, considering the cost of the service. Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in the order, or until revoked or modified by the commission, unless the order is suspended, modified or revoked by order or decree of a court of competent jurisdiction: Provided, That in the case of utilities used by emergency shelter providers, the commission shall prescribe such rates, charges or tolls that are the lowest available. "Emergency shelter provider" means any nonprofit entity which provides temporary emergency housing and services to the homeless or to victims of domestic violence or other abuse.
(b) Notwithstanding any other provision of this code to the contrary, rates are not discriminatory if, when considering the debt costs associated with a future water or sewer project which would not benefit existing customers, the commission establishes rates which ensure that the future customers to be served by the new project are solely responsible for the debt costs associated with the project.
(c) The commission shall, after June thirtieth, two thousand seven, prohibit any electric utility from providing service to any newly constructed public or private building or new installation or relocation of manufactured housing, to be used for commercial or dwelling purposes, until the building or property owner or his or her designee provides the electrical inspector, where applicable, with a certificate that the building or manufactured housing is not in the regulated flood plain, as determined by the county commission or municipal governing body or, if the building or manufactured housing is in the regulated flood plain, that the construction, engineering and installation design have been approved by the county or municipal flood plain manager for site specific flooding conditions. In any area that does not have an electrical inspector, the homeowner shall provide a floodplain certificate number to the utility at the time the request for service is made. It is not the responsibility of the utility to obtain for the customer the flood plain certification or construction, engineering or installation design approval. It is the responsibility of the customer, at the time a complaint for failure to timely provide service is filed, to provide the commission with a flood plain certificate or design approval required in this subsection. Failure to provide the flood plain certificate or design approval will result in rejection of the complaint prior to requiring a response from the utility. The commission shall allow a complaint to be filed at a later date if the customer provides the flood plain certificate or design approval required by this subdivision.

NOTE: The purpose of this bill is enact measures to assist local and state authorities in flood plain management for the protection of the health and safety of the citizens of this sate.

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