Senate Bill No. 688
(By Senator Unger)
____________
[Introduced February 20, 2006; referred to the Committee
on Natural Resources
; and then to the Committee on
Agriculture.]
____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §8A-13-1, §8A-13-2,
§8A-13-3, §8A-13-4, §8A-13-5, §8A-13-6, §8A-13-7, §8A-13-8,
§8A-13-9, §8A-13-10, §8A-13-11, §8A-13-12, §8A-13-13,
§8A-13-14, §8A-13-15, §8A-13-16, §8A-13-17, §8A-13-18 and
§8A-13-19, all relating to voluntary wetland protection
programs; providing legislative findings and purpose;
providing for county wetland protection programs while
authorizing wetland protection boards; authorizing county
commissions to approve purchases of wetland easements;
providing for required content of wetland protection programs;
providing for wetland protection boards and the boards' powers
and duties; establishing the West Virginia Wetland Protection
Authority and prescribing its powers and duties; defining
certain terms; setting forth methods of wetland protection; authorizing owners of wetlands to offer conservation and
preservation easements; providing for the valuation of
conservation and preservation easements; providing criteria to
be used by county wetland protection boards and the authority
for acquiring easements; prescribing various means for funding
of wetland protection programs; and authorizing the
Commissioner of Natural Resources to propose rules.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §8A-13-1, §8A-13-2,
§8A-13-3, §8A-13-4, §8A-13-5, §8A-13-6, §8A-13-7, §8A-13-8,
§8A-13-9, §8A-13-10, §8A-13-11, §8A-13-12, §8A-13-13, §8A-13-14,
§8A-13-15, §8A-13-16, §8A-13-17, §8A-13-18 and §8A-13-19, all
to
read as follows:
ARTICLE 13. VOLUNTARY WETLAND PROTECTION PROGRAMS.
§8A-13-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that the
wetlands of this state are a unique and essential component of the
natural "life support" environmental components to which all
citizens of this state have a vested interest in keeping secure and
pollution free. Further, a need exists to nurture and maintain
those wet wetland areas of the state which are in danger of
irreversible loss or environmental calamity.
(b) It is the intent of the Legislature to provide persons and other entities an opportunity to voluntarily protect wetlands in
order to:
(1) Assist in sustaining the ecological balance of the natural
environment;
(2) Retain and preserve within the state wetlands in a natural
state for recreational and commercial uses for the citizens of the
state;
(3) Control the urban expansion which is endangering the
wetlands of the state;
(4) Curb the spread of urban blight and deterioration which
threatens the natural ecological balance of natural wetlands;
(5) Protect wetlands as open-space wetlands;
(6) Enhance tourism; and
(7) Protect worthwhile community values, institutions and
landscapes which are inseparably associated with natural wetlands
existing within the state.
(c) Further, it is the intent of the Legislature to establish
a West Virginia wetland authority, hereinafter "authority", to
assist persons, other entities and counties to obtain funding from
any source available to accomplish the purposes of the voluntary
wetland protection programs.
§8A-13-2. County wetland protection programs and wetland
protection boards authorized; authority of county
commission to approve purchase of wetland easements; expense reimbursement of actual expenses
for the board members.
(a) The county commission of each county may adopt and
implement a wetland protection program within the county. The
county commission of each county which decides to adopt and
implement a wetland protection program shall appoint a wetland
protection board. The wetland protection board shall administer on
behalf of the county commission all matters concerning wetland
protection. The county commission has final approval authority for
any and all purchases of easements for the wetland protection
program by the board.
(b) The wetland protection board shall adopt bylaws
prescribing the board's officers, meeting dates, record-keeping
procedures, meeting attendance requirements and other internal
operational procedures. The member of the wetland protection board
who is a county commissioner shall serve as temporary chairman of
the board until the board's bylaws are adopted and until the
board's officers are selected as prescribed by those bylaws. The
wetland protection board shall prepare a document proposing a
wetland protection program which is consistent with the
Legislature's intent.
(c) Each member of the board shall receive expense
reimbursement for actual expenses incurred while engaged in the
discharge of official duties, the actual expenses not to exceed the amount paid to members of the Legislature.
§8A-13-3. Content and requirements of wetland protection
programs.
(a) An adopted wetland protection program shall include
wetlands existing in each county as designated by each county
wetland protection board in this state.
(b) An adopted wetland protection program shall meet the
following minimum requirements:
(1) The program shall be developed by the county wetland
protection board and approved by the county commission. The county
wetland protection board, in consultation with the local
conservation district, shall administer the wetland protection
program;
(2) The board shall establish uniform standards and guidelines
for the eligibility of areas as designated wetlands for the
program. The standards and guidelines shall take into
consideration the location of the wetland in relation to other
wetlands within the county; impending threat of conversion of the
property to nonwetland usage or usage contrary to the maintenance
and preservation of sound ecological and environmental conditions;
public and private ownership of wetlands and existing deed
covenants regarding the wetlands; and restrictions with respect to
the wetlands; and
(3) The guidelines established by the board shall outline the various methods of wetland protection which are available to
prospective participating property owners and the procedures to be
followed in applying for program consideration.
§8A-13-4. Wetland protection boards -- Appointment, composition,
terms.
(a) Composition. -- A wetland protection board shall be
composed of seven members, each serving without compensation.
Membership on the wetland protection board shall consist of the
following: One county commissioner; the executive director of the
county development authority; one marine biologist; one who is a
county resident and a member of a conservation district; the mayor
or city manager of a municipality located in the county; and two
county residents who are not members of any of the foregoing
organizations. All members of the wetland protection board shall
be voting members, except the county commissioner who shall serve
in an advisory capacity as a nonvoting member.
(b) Terms. -- Each member of a wetland protection board shall
be appointed for a term of office of four years except the initial
appointment of two voting board members shall be for a term of two
years:
(1) No member may serve for more than two consecutive full
terms; and
(2) An appointment to fill a vacancy shall be for the
remainder of the unexpired term.
§8A-13-5. Wetland protection boards -- Powers.
A wetland protection board has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters
in its own name;
(b) Power to contract. -- To enter into contracts generally
and to execute all instruments necessary or appropriate to carry
out its purposes;
(c) Power to restrict use of wetlands. -- To acquire or
cohold, by gift, purchase, devise, bequest or grant, easements in
gross, fee or other rights to restrict the use of wetlands as may
be designated to maintain the character of the wetlands: Provided,
That the county commission has final approval authority for any and
all purchases of easements for the wetland protection program by
the board;
(d) Power to implement rules. -- To implement rules necessary
to achieve the purposes of the voluntary wetland protection
programs;
(e) Power to disseminate information. -- To promote the
dissemination of information throughout the county concerning the
activities of the wetland protection board; and
(f) Power to seek funding. -- To pursue and apply for any and
all county, state, federal and private funding available,
consistent with the purpose of the voluntary wetland protection
programs.
§8A-13-6. Wetland protection board duties.
The duties of each wetland protection board are as follows:
(a) To report to the county commission with respect to the
acquisition of easements by the wetland protection board within the
county and to obtain final approval authority for any and all
purchases of easements for the wetland protection program by the
board;
(b) To advise the authority concerning county priorities for
wetland maintenance and preservation;
(c) To promote protection of wetlands within the county by
offering information and assistance to wetland owners with respect
to preferred activities related to ecological and environmental
concerns;
(d) To seek and apply for all available funds from federal,
state, county and private sources to accomplish the purposes of the
voluntary wetland protection programs; and
(e) To perform any other duties assigned by the county
commission.
§8A-13-7. West Virginia wetland protection authority --
Established.
A West Virginia wetland protection authority is established
within the Division of Natural Resources. The authority has the
powers and duties provided in this article.
§8A-13-8. West Virginia wetland protection authority -- Board of Trustees.
(a) Composition; chairman; quorum; qualifications. -- The
authority established on the first day of July, two thousand six,
shall be governed and administered by a board of trustees composed
of the State Treasurer, the Auditor and the Commissioner of Natural
Resources, who shall serve as ex officio members, and nine members
to be appointed by the Governor, by and with the advice and consent
of the Senate, at least five of whom shall be representative of
marine biologists from different areas of the state. The State
Treasurer, Auditor and the Commissioner of Natural Resources
may
appoint designees to serve on the board of trustees. One of the
appointed members who is not a representative of marine biologists
shall be a representative of the Division of Natural Resources; one
of the appointed members who is not a marine biologist
representative shall be a representative of the conservation
district; and one of the appointed members who is not a marine
biologist
representative of The Division of Tourism. Three of the
five marine biologist
representatives shall be appointed as
follows:
(1) Two from a list of five nominees submitted by the West
Virginia Division of Natural Resources; and
(2) One from a list of three nominees submitted by the
Governor.
The Governor shall appoint the chairman of the board from among the nine appointed members. A majority of the members of the
board serving at any one time constitutes a quorum for the
transaction of business.
Notwithstanding any provision of law to the contrary, a person
may be appointed to and serve on the board as an appointed member
even if prior to the appointment the person conveyed an easement on
the person's wetland to the authority.
(b) Terms. -- (1) The Governor, with the advice and consent of
the Senate, shall appoint the nine members for the following terms:
(A) Three for a term of four years;
(B) Three for a term of three years; and
(C) Three for a term of two years.
(2) Successors to appointed members whose terms expire shall
be appointed for terms of four years. Vacancies shall be filled
for the unexpired term. An appointed member may not serve more
than two successive terms. Appointment to fill a vacancy may not
be considered as one of two terms.
(c) Oath. -- Appointed members shall take the oath of office
as prescribed by law.
(d) Compensation and expenses. -- Members shall not receive
compensation. Each member of the board shall receive expense
reimbursement for actual expenses incurred while engaged in the
discharge of official duties, the actual expenses not to exceed the
amount paid to members of the Legislature.
§8A-13-9. West Virginia wetland protection authority -- Powers.
The authority has the following general powers:
(a) Power to sue. -- To sue and be sued in contractual matters
in its own name;
(b) Power to contract. -- To enter into contracts generally
and to execute all instruments necessary or appropriate to carry
out its purposes;
(c) Power to restrict use of wetlands. -- To acquire or
cohold, by gift, purchase, devise, bequest or grant, easements in
gross, fee or other rights to restrict the use of wetlands as may
be designated to maintain the character of the wetlands in its
natural ecological and environmental state;
(d) Power to disseminate information. -- To promote the
dissemination of information throughout the state concerning the
activities of the wetland protection board; and
(e) Power to seek funding. -- To pursue and apply for any and
all state, federal and private funding available consistent with
the purpose of the voluntary wetland protection programs.
§8A-13-10. West Virginia wetland protection authority -- Duties.
The authority shall:
(a) Disseminate information regarding wetland protection and
promote the protection of wetlands in the state;
(b) Assist county wetland protection boards in applying for
and obtaining all state and federal funding available consistent with the purposes of the wetland protection programs;
(c) Upon request of a wetland protection board, provide
technical and legal services necessary to procure, acquire, draft,
file and record conservation and preservation easements;
(d) Prepare and file electronically with the Governor's office
and with the Legislature by the thirty-first day of August of each
year a report including, but not limited to, the following
information:
(1) The cost per easement obtained;
(2) The identity of all applicants for conservation and
preservation easements; and
(3) The identity of all applicants from whom conservation and
preservation easements have been acquired;
(e) Seek and apply for all available funds from federal, state
and private sources to accomplish the purposes of the wetland
protection programs.
§8A-13-11. Definitions.
For purposes of the voluntary wetland protection programs, the
following terms have the meanings set forth in this section.
(a) Acquisition of easement. -- The holding or coholding of
wetland-use restrictions as defined in this article, whether
obtained through purchase, gift, devise, bequest, grant or contract
to cohold with another holder.
(b) Conservation easement. -- This article incorporates the definition of a conservation easement found in section three,
article twelve, chapter twenty of this code, except that a
conservation easement created under this article must be held or
coheld by at least one "holder" as defined in that section in
perpetuity.
(c) Wetland. -- A geographically defined area
any size,
historically containing high contents of moisture or water
accumulation or dispersal, whether in the form of swamps, creeks,
waterfalls, ponds, lakes, rivers or other areas with similar
concentrations or collections of moisture or water and includes all
real property designated as wetlands that are part of a property
used or useable as a wetland for any purpose, including, but not
limited to, recreation, navigation, agriculture, commerce, energy
production or other uses associated with high moisture content or
water collection or dispersal.
(d) Preservation easement. -- This article incorporates the
definition of a preservation easement found in section three,
article twelve, chapter twenty of this code, except that a
preservation easement created under this article must be held or
coheld by at least one "holder" as defined in that section and must
be perpetual in its duration.
(e) Opt-out provision. -- A provision which may be inserted
into any conservation or preservation easement agreement entered
into pursuant to this article which would act as a mechanism to place the easement selling price into an escrow fund for the
purpose of allowing the owner or owners up to five years to rescind
the decision to enter into the wetland protection program.
§8A-13-12. Methods of wetland protection.
(a) The authority or a county wetland protection board may
negotiate with and compensate eligible property owners to ensure
the protection of wetlands within the county or state. Methods of
protecting wetlands may include, but are not limited to, the
following:
(1) Acquisition of conservation easement or preservation
easement. -- With the consent of a property owner, the county
wetland protection board or the authority may acquire and place on
record a conservation or preservation easement. Acquired easements
apply only to those properties which qualify for consideration
under the terms established by an adopted wetland protection
program; and
(2) Acquisition of wetland and disposition. -- With the
consent of a property owner, the county wetland protection board or
the authority may acquire any property which qualifies for wetland
protection under terms established by an adopted wetland protection
program. The county wetland protection board or the authority may
lease, as lessor, acquired property for wetland uses or may
restrict the property to wetland uses and sell the property at fair
market value for use as a wetland. Any property acquired by a county wetland protection board or the authority and then sold
shall be sold subject to a conservation or preservation easement.
If the property is leased, the lessee shall pay to the county
commission, in addition to rent, an annual fee set by the county
commission. The amount of this annual fee shall be commensurate
with the amount of property taxes which would be assessed in
accordance with the provisions of this code upon the property if
the property were held by a private wetland owner.
(b) Revenues from the sale of properties restricted to wetland
uses shall be used to recover the original purchase costs of the
properties and shall be returned to the applicable funds which were
used by the county wetland protection board or the authority to
purchase the property. Any profits resulting from the sale of
property restricted to wetland uses shall be deposited in a wetland
protection fund.
§8A-13-13. offer of conservation or preservation easements.
(a) Owner may offer to sell or donate a conservation or
preservation easement. -- An owner of a wetland may offer by
written application to sell or donate a conservation or
preservation easement on all or any portion of the wetland to a
county wetland board or the authority.
(b) Requirements for application to sell or donate. -- In
order to be considered by a county wetland protection board or the
authority, an application to sell or donate shall:
(1) Include an asking price, if any, at which the owner is
willing to sell a conservation or preservation easement and shall
specify the terms under which the offer is made; and
(2) Include a complete description of the wetland, including,
but not limited to, an itemization of all debts secured by the
wetland and the identity and amount of all liens.
§8A-13-14. Value of conservation or preservation easement.
(a) Maximum value. -- The maximum value of any conservation or
preservation easement acquired by the county wetland protection
board or the authority is the asking price or the difference
between the fair market value of the wetland intrinsically and its
value associated with its recreational, agricultural, commercial or
other usage, whichever is lower.
(b) Fair market value. -- The fair market value of the wetland
is the price as of the valuation date for the highest and best use
of the wetland which a vendor, willing but not obligated to sell,
would accept for the property, and which a purchaser, willing but
not obligated to buy, would pay for the property if the property
was not subject to any restriction imposed under this article.
(c) Agricultural value of wetland. -- The agricultural value
of a wetland is the price as of the valuation date which a vendor,
willing but not obligated to sell, would accept for the property,
and which a purchaser, willing but not obligated to buy, would pay
for the property subject to the restrictions placed upon it by the conservation or preservation easement.
(d) Determination of values. -- The value of the easement is
determined at the time the county wetland protection board or the
authority is requested in writing to acquire the easement. The
fair market value is determined by the county wetland protection
board or the authority based on one or more appraisals obtained by
the county wetland protection board or the authority, and
appraisals, if any, of the wetland owner.
(e) Arbitration. -- If the wetland owner and the county
wetland protection board or the authority do not agree on the value
of the easement as determined by the state, the wetland owner, the
county wetland protection board or the authority may request that
the matter be referred to a mutually agreed upon mediator for
arbitration as to the value of the easement. The arbitration shall
be conducted in accordance with the rules promulgated by the
American arbitration association. The value determined at
arbitration is binding upon the owner and the county wetland
protection board or the authority in a purchase of the easement
made subsequent to the arbitration for a period of two years,
unless the wetland owner and the county wetland protection board or
the authority agree upon a lesser value or the wetland owner, the
county wetland protection board or the authority appeals the
results of the arbitration to the circuit court.
§8A-13-15. Criteria for acquisition of conservation and preservation easements by county wetland protection
boards and the authority.
The authority and county wetland protection boards, in ranking
applications for conservation and preservation easements, shall
consider the following factors as priorities:
(a) The imminence of residential, commercial or industrial
development;
(b) The total acreage offered for conservation or preservation
easement;
(c) The presence of prime wetland, unique wetland, wetland of
statewide importance, other locally significant wetlands and the
agricultural productive capacity of the wetland, if any;
(d) Whether the wetland offered is contiguous or appurtenant
to other wetlands of similar or dissimilar characteristics;
(e) The ratio of the asking price, if any, of the easement to
the fair market value of the easement;
(f) The historical, architectural, archaeological, cultural,
recreational, natural, scenic, source water protection or unique
value of the easement: Provided, That determinations of the
authority or a county wetland protection board are not a substitute
for and do not have the effect of other procedures under state or
federal law for granting protected status to wetlands, including,
but not limited to, procedures under the National Historic
Preservation Act of 1966, as amended, or rules of the director of the historic preservation section of the Division of Culture and
History authorized in section eight, article one, chapter
twenty-nine of this code, or procedures under the authority of the
tourism commissioner or the parks and recreation section of the
Division of Natural Resources;
(g) The existence and amount of secured debt upon the
property, as determined by a title search, and whether the total
exceeds the intrinsic value of the wetland as determined by the
appraisal as required in subsection (d), section fourteen of this
article; and
(h) The length of the protective easement.
§8A-13-16. Use of wetland for which conservation or preservation
easement acquired.
(a) Provisions to be included in conservation or preservation
easement and county wetland protection board rules, or the
authority rules. - A wetland upon which a conservation or
preservation easement has been recorded may be used for the
following:
(1) Recreational use;
(2) Game or commercial fishing;
(3) Navigation and boating; and
(4) Any commercial use that does not require a Division of
Environmental Protection permit to operate.
Notwithstanding any of the exceptions in this subsection, any use of a wetland under a preservation or conservation easement must
be consistent with the purpose of the wetland protection programs.
(b) Use for commercial, industrial or residential purposes. --
Excepting existing and future uses described in subsections (c),
(d) and (e) of this section, a wetland owner whose wetland is
subject to a conservation or preservation easement may not develop
the wetland for any commercial, industrial, residential or other
nonwetland purpose.
(c) Exclusion for certain existing and future uses. -- This
article neither abrogates nor creates any preexisting rights in a
wetland owned by any person not joining as a grantor of a
conservation or preservation easement. Neither the creation nor
the existence of a conservation or preservation easement shall
prevent existing or future use of the wetland based on a
preexisting right, or prevent any existing or future use consistent
with state law with respect to transmission and telecommunications
facilities' rights-of-way, easements and licenses.
(e) Condemnation of private property for public use. -- This
article neither abrogates nor creates any rights inconsistent with
state or federal law respecting the power of condemnation of
private property for public use. Any person or entity exercising
the power of eminent domain must pay compensation at not less than
the fair market value of the wetland to the court having
jurisdiction of the proceeding or as directed by the court. The term "fair market value" as used in this subsection shall be
determined without regard to the existence of the conservation or
preservation easement. Neither the creation nor the existence of
a conservation or preservation easement shall prevent acquisition
of real property, or any right or interest in the property, for
public use.
§8A-13-17. Funding of wetland protection programs.
(a) County funds. --
(1) Creation of county funds. -- Once having created a county
wetland protection program, a county commission may authorize the
county wetland protection board to create and maintain a wetland
protection fund and hire staff as it considers appropriate.
(2) Sources. -- A county wetland protection fund is comprised
of:
(A) Any moneys not specifically limited to other uses and
dedicated to the fund by a county commission;
(B) Any moneys collected pursuant to section twenty-one of
this article;
(C) Any money made available to the fund by grants or
transfers from governmental or private sources; and
(D) Any money realized by investments, interest, dividends or
distributions.
(b) State fund. --
(1) Created and continued. -- The West Virginia Wetland Protection Fund is created for the purposes specified in this
article.
(2) Sources. -- The West Virginia Wetland Protection Fund is
comprised of:
(A) Any money made available to the fund by general or special
fund appropriations;
(B) Any money made available to the fund by grants or
transfers from governmental or private sources;
(C) Any money realized by investments, interest, dividends or
distributions; and
(D) Any money appropriated by the Legislature for the West
Virginia Wetland Protection Fund.
(3) Disbursements. -- The treasurer may not disburse any money
from the fund other than:
(A) For costs associated with the staffing, administration,
and technical and legal duties of the authority;
(B) For reasonable expenses incurred by the members of the
board of trustees of the authority in the performance of official
duties; and
(C) For consideration in the purchase of wetland conservation
and preservation easements.
(4) Money remaining at end of fiscal year. -- Any money
remaining in the fund at the end of a fiscal year shall not revert
to the General Revenue Fund of the state, but shall remain in the West Virginia Wetland Protection Fund to be used for the purposes
specified in this article.
(5) Budget. -- The estimated budget of the authority for the
next fiscal year shall be included with the budget of the West
Virginia Department of Agriculture.
(6) Audit. -- The fund shall be audited annually.
§8A-13-18. Disbursements by the authority to county wetland
protection boards.
(a) Applications; amount. -- If a county has established a
county wetland protection program, the authority shall distribute
within sixty days after the end of its fiscal year at least eighty
percent of that fiscal year's remaining funds to county wetland
protection boards who have certified to the authority that there is
then pending an application for one or more conservation or
preservation easements. Each certification shall include:
(1) The name of each applicant for an easement and the date of
each application for an easement during the fiscal year;
(2) A description of the wetland upon which an easement is
offered; and
(3) An appraisal of the value of the conservation or
preservation easement as provided in section fourteen of this
article.
(b) Disbursement formula. -- Disbursement of authority funds
to qualifying counties shall be based on the ratio of each county wetland protection board's appraisal value of conservation and
preservation easement applications, including those applications to
donate easements, received during the fiscal year to the total of
the appraisal value of all applications for conservation and
preservation easements for the fiscal year received by the
authority from county wetland protection boards. Applications for
easement donations may only be counted if the county wetland
protection board holds or coholds the easement.
§8A-13-19. Authorization for Commissioner of Natural Resources to
promulgate proposed rules.
The Commissioner of Natural Resources may 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.
NOTE: The purpose of this bill is to establish the Voluntary
Wetland Protection Programs. The bill provides for legislative
findings and purpose while providing for county wetland protection
programs and authorizing wetland protection boards. The bill also
authorizes county commissions to approve purchases of wetland
easements. It further provides a required content of wetland
protection programs while providing for wetland protection boards
and the respective boards' powers and duties. The bill establishes
the West Virginia Wetland Protection Authority and prescribes its
powers and duties. It sets forth methods of wetland protection as
it authorizes owners of wetlands to offer conservation and
preservation easements. It provides for the valuation of
conservation and preservation easements while providing criteria to
be used by county wetland protection boards and the authority for
acquiring easements. Finally, it prescribes various means for
funding of wetland protection programs and authorizes the
Commissioner of Natural Resources to propose rules.
This article is new; therefore, strike-throughs and
underscoring have been omitted.