ENROLLED
Senate Bill No. 466
(By Senators Unger, Plymale, Prezioso, Foster, Jenkins, Stollings and Hunter)
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[Passed March 6, 2008; in effect ninety days from passage.]
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AN ACT to amend and reenact §22C-1-3, §22C-1-6 and §22C-1-16 of the
Code of West Virginia, 1931, as amended, all relating to the
Water Development Authority; defining terms; providing that
stormwater systems may qualify as water development projects;
and authorizing the Water Development Authority to administer
the Dam Safety Rehabilitation Revolving Fund Loan Program.
Be it enacted by the Legislature of West Virginia:
That §22C-1-3, §22C-1-6 and §22C-1-16 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the Water Development Authority provided
for in section four of this article, the duties, powers, responsibilities and functions of which are specified in this
article.
(2) "Beneficial use" means a use of water by a person or by
the general public that is consistent with the public interest,
health and welfare in utilizing the water resources of this state,
including, but not limited to, domestic, agricultural, irrigation,
industrial, manufacturing, mining, power, public, sanitary, fish
and wildlife, state, county, municipal, navigational, recreational,
aesthetic and scenic use.
(3) "Board" means the Water Development Authority Board
provided for in section four of this article, which shall manage
and control the Water Development Authority.
(4) "Bond" or "water development revenue bond" means a revenue
bond, note or other evidence of indebtedness issued by the Water
Development Authority to effect the intents and purposes of this
article.
(5) "Construction" includes reconstruction, enlargement,
improvement and providing furnishings or equipment.
(6) "Cost" means, as applied to water development projects,
the cost of their acquisition and construction; the cost of
acquisition of all land, rights-of-way, property rights, easements,
franchise rights and interests required by the authority for such
acquisition and construction; the cost of demolishing or removing
any buildings or structures on land so acquired, including the cost of acquiring any lands to which such buildings or structures may be
moved; the cost of acquiring or constructing and equipping a
principal office and suboffices of the authority; the cost of
diverting highways, interchange of highways; access roads to
private property, including the cost of land or easements therefor;
the cost of all machinery, furnishings and equipment; all financing
charges and interest prior to and during construction and for no
more than eighteen months after completion of construction; the
cost of all engineering services and all expenses of research and
development with respect to public water facilities, stormwater
systems or wastewater facilities; the cost of all legal services
and expenses; the cost of all plans, specifications, surveys and
estimates of cost and revenues; all working capital and other
expenses necessary or incident to determining the feasibility or
practicability of acquiring or constructing any such project; all
administrative expenses and such other expenses as may be necessary
or incident to the acquisition or construction of the project; the
financing of such acquisition or construction, including the amount
authorized in the resolution of the authority providing for the
issuance of water development revenue bonds to be paid into any
special funds from the proceeds of such bonds; and the financing of
the placing of any such project in operation. Any obligation or
expenses incurred by any governmental agency, with the approval of
the authority, for surveys, borings, preparation of plans and specifications and other engineering services in connection with
the acquisition or construction of a project are a part of the cost
of such project and shall be reimbursed out of the proceeds of
loans or water development revenue bonds as authorized by the
provisions of this article.
(7) "Establishment" means an industrial establishment, mill,
factory, tannery, paper or pulp mill, mine, colliery, breaker or
mineral processing operation, quarry, refinery, well and each and
every industry or plant or works or activity in the operation or
process of which industrial wastes or other wastes are produced.
(8) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; watershed improvement districts; soil conservation
districts; sanitary districts; public service districts; drainage
districts; regional governmental authorities and any other
governmental agency, entity, political subdivision, public
corporation or agency having the authority to acquire, construct or
operate public water facilities, stormwater systems or wastewater
facilities; the United States government or any agency, department,
division or unit thereof; and any agency, commission or authority
established pursuant to an interstate compact or agreement.
(9) "Industrial wastes" means any liquid, gaseous, solid or
other waste substance or any combination thereof, resulting from or
incidental to any process of industry, manufacturing, trade or business, or from or incidental to the development, processing or
recovery of any natural resources; and the admixture with such
industrial wastes of sewage or other wastes, as defined in this
section, are also industrial wastes.
(10) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark and other wood debris and residues, sand,
lime, cinders, ashes, offal, night soil, silt, oil, tar, dyestuffs,
acids, chemicals and all other materials or substances not sewage
or industrial wastes which may cause or might reasonably be
expected to cause or to contribute to the pollution of any of the
waters of this state.
(11) "Owner" includes all persons, copartnerships or
governmental agencies having any title or interest in any property
rights, easements and interests authorized to be acquired by this
article.
(12) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the State of West Virginia; any federal or state
governmental agency; political subdivision; county commission;
municipality; industry; sanitary district; public service district;
drainage district; soil conservation district; watershed
improvement district; partnership; trust; estate; person or
individual; group of persons or individuals acting individually or as a group or any other legal entity whatever.
(13) "Pollution" means: (a) The discharge, release, escape,
deposit or disposition, directly or indirectly, of treated or
untreated sewage, industrial wastes or other wastes, of whatever
kind or character, in or near any waters of the state, in such
condition, manner or quantity, as does, will or is likely to: (1)
contaminate or substantially contribute to the contamination of any
of such waters; or (2) alter or substantially contribute to the
alteration of the physical, chemical or biological properties of
any of such waters, if such contamination or alteration, or the
resulting contamination or alteration where a person only
contributes thereto, is to such an extent as to make any of such
waters: (i) Directly or indirectly harmful, detrimental or
injurious to the public health, safety and welfare; or (ii)
directly or indirectly detrimental to existing animal, bird, fish,
aquatic or plant life; or (iii) unsuitable for present or future
domestic, commercial, industrial, agricultural, recreational,
scenic or other legitimate uses; and also means (b) the discharge,
release, escape, deposit or disposition, directly or indirectly, of
treated or untreated sewage, industrial wastes or other wastes, of
whatever kind or character, in or near any waters of the state in
such condition, manner or quantity, as does, will or is likely to
reduce the quality of the waters of the state below the standards
established therefor by the United States or any department, agency, board or commission of this state authorized to establish
such standards.
(14) "Project" or "water development project" means any public
water facility, stormwater system or wastewater facility, the
acquisition or construction of which is authorized, in whole or in
part, by the Water Development Authority or the acquisition or
construction of which is financed, in whole or in part, from funds
made available by grant or loan by, or through, the authority as
provided in this article, including facilities, the acquisition or
construction of which is authorized, in whole or in part, by the
Water Development Authority or the acquisition or construction of
which is financed, in whole or in part, from funds made available
by grant or loan by, or through, the authority as provided in this
article, including all buildings and facilities which the authority
deems necessary for the operation of the project, together with all
property, rights, easements and interest which may be required for
the operation of the project, but excluding all buildings and
facilities used to produce electricity other than electricity for
consumption by the authority in the operation and maintenance of
the project.
(15) "Public roads" mean all public highways, roads and
streets in this state, whether maintained by the state, county,
municipality or other political subdivision.
(16) "Public utility facilities" means public utility plants or installations and includes tracks, pipes, mains, conduits,
cables, wires, towers, poles and other equipment and appliances of
any public utility.
(17) "Revenue" means any money or thing of value collected by,
or paid to, the Water Development Authority as rent, use or service
fee or charge for use of, or in connection with, any water
development project, or as principal of or interest, charges or
other fees on loans, or any other collections on loans made by the
Water Development Authority to governmental agencies to finance, in
whole or in part, the acquisition or construction of any water
development project or projects or other money or property which is
received and may be expended for or pledged as revenues pursuant to
this article.
(18) "Sewage" means water-carried human or animal wastes from
residences, buildings, industrial establishments or other places,
together with such groundwater infiltration and surface waters as
may be present.
(19) "Stormwater system" means a stormwater system in its
entirety or any integral part thereof used to collect, control or
dispose of stormwater and an associated stormwater management
program. It includes all facilities, structures and natural water
courses used for collecting and conducting stormwater to, through
and from drainage areas to the points of final outlet, including,
but not limited to, any and all of the following: Inlets, conduits, corals, outlets, channels, ponds, drainage ways, easements, water
quality facilities, catch basins, ditches, streams, gulches,
flumes, culverts, siphons, retention or detention basins, dams,
floodwalls, pipes, flood control systems, levies and pumping
stations. The term "stormwater system" does not include highways,
road and drainage easements or stormwater facilities constructed,
owned or operated by the West Virginia Division of Highways.
(20) "Stormwater management program" means those activities
associated with the management, operation and maintenance and
control of stormwater and stormwater systems and includes, but is
not limited to, public education, stormwater and surface runoff
water quality improvement, mapping, planning, flood control,
inspection, enforcement and any other activities required by state
and federal law. The term "stormwater management program" does not
include those activities associated with the management, operation,
maintenance and control of highways, road and drainage easements or
stormwater facilities constructed, owned or operated by the West
Virginia Division of Highways without the express agreement of the
Commissioner of the Division of Highways.
(21) "Water resources", "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused or flowing, wholly or partially within this
state, or bordering this state and within its jurisdiction, and
includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks,
ponds (except farm ponds, industrial settling basins and ponds and
water treatment facilities), impounding reservoirs, springs, wells
and watercourses.
(22) "Wastewater" means any water containing sewage,
industrial wastes or other wastes or contaminants derived from the
prior use of such water and includes, without limiting the
generality of the foregoing, surface water of the type storm sewers
are designed to collect and dispose of.
(23) "Wastewater facilities" means facilities for the purpose
of treating, neutralizing, disposing of, stabilizing, cooling,
segregating or holding wastewater, including, without limiting the
generality of the foregoing, facilities for the treatment and
disposal of sewage, industrial wastes or other wastes, waste water
and the residue thereof; facilities for the temporary or permanent
impoundment of wastewater, both surface and underground; and
sanitary sewers or other collection systems, whether on the surface
or underground, designed to transport wastewater together with the
equipment and furnishings thereof and their appurtenances and
systems, whether on the surface or underground, including force
mains and pumping facilities therefor.
(24) "Water facility" means all facilities, land and equipment
used for the collection of water, both surface and underground,
transportation of water, treatment of water and distribution of water all for the purpose of providing potable, sanitary water
suitable for human consumption and use.
§22C-1-6. Powers, duties and responsibilities of authority
generally.
The Water Development Authority has and may exercise all
powers necessary or appropriate to carry out and effectuate its
corporate purpose. The authority has the power and capacity to:
(1) Adopt and, from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business and rules to implement and make effective
its powers and duties, such rules to be promulgated in accordance
with the provisions of chapter twenty-nine-a of this code.
(2) Adopt an official seal.
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be impleaded
in its own name and particularly to enforce the obligations and
covenants made under sections nine, ten and sixteen of this
article. Any actions against the authority shall be brought in the
circuit court of Kanawha County in which the principal office of
the authority shall be located.
(5) Make loans and grants to governmental agencies for the
acquisition or construction of water development projects by any
such governmental agency and, in accordance with the provisions of chapter twenty-nine-a of this code, adopt rules and procedures for
making such loans and grants.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by a governmental agency or person, water
development projects and, in accordance with the provisions of
chapter twenty-nine-a of this code, adopt rules for the use of such
projects.
(7) Make available the use or services of any water
development project to one or more persons, one or more
governmental agencies or any combination thereof.
(8) Issue water development revenue bonds and notes and water
development revenue refunding bonds of the state, payable solely
from revenues as provided in section nine of this article unless
the bonds are refunded by refunding bonds, for the purpose of
paying all or any part of the cost of, or financing by loans to
governmental agencies, one or more water development projects or
parts thereof.
(9) Acquire by gift or purchase, hold and dispose of real and
personal property in the exercise of its powers and the performance
of its duties as set forth in this article.
(10) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper, or
by the exercise of the right of eminent domain in the manner provided in chapter fifty-four of this code, such public or private
lands, or parts thereof or rights therein, rights-of-way, property,
rights, easements and interests it deems necessary for carrying out
the provisions of this article, but excluding the acquisition by
the exercise of the right of eminent domain of any public water
facilities, stormwater systems or wastewater facilities, operated
under permits issued pursuant to the provisions of article eleven,
chapter twenty-two of this code and owned by any person or
governmental agency, and compensation shall be paid for public or
private lands so taken.
(11) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the performance
of its duties and the execution of its powers. When the cost under
any such contract or agreement, other than compensation for
personal services, involves an expenditure of more than two
thousand dollars, the authority shall make a written contract with
the lowest responsible bidder after public notice published as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, the publication
area for such publication to be the county wherein the work is to
be performed or which is affected by the contract, which notice
shall state the general character of the work and the general
character of the materials to be furnished, the place where plans
and specifications therefor may be examined and the time and place of receiving bids, but a contract or lease for the operation of a
water development project constructed and owned by the authority or
an agreement for cooperation in the acquisition or construction of
a water development project pursuant to section sixteen of this
article is not subject to the foregoing requirements and the
authority may enter into such contract or lease or such agreement
pursuant to negotiation and upon such terms and conditions and for
such period as it finds to be reasonable and proper under the
circumstances and in the best interests of proper operation or of
efficient acquisition or construction of such project. The
authority may reject any and all bids. A bond with good and
sufficient surety, approved by the authority, is required of all
contractors in an amount equal to at least fifty percent of the
contract price, conditioned upon the faithful performance of the
contract.
(12) Employ managers, superintendents and other employees, who
are covered by the state civil service system, and retain or
contract with consulting engineers, financial consultants,
accounting experts, architects, attorneys and such other
consultants and independent contractors as are necessary in its
judgment to carry out the provisions of this article and fix the
compensation or fees thereof. All expenses thereof are payable
solely from the proceeds of water development revenue bonds or
notes issued by the authority, from revenues and from funds appropriated for such purpose by the Legislature.
(13) Receive and accept from any federal agency, subject to
the approval of the Governor, grants for or in aid of the
construction of any water development project or for research and
development with respect to public water facilities, stormwater
systems or wastewater facilities and receive and accept aid or
contributions from any source of money, property, labor or other
things of value to be held, used and applied only for the purposes
for which such grants and contributions are made.
(14) Engage in research and development with respect to public
water facilities, stormwater systems or wastewater facilities.
(15) Purchase property coverage and liability insurance for
any water development project and for the principal office and
suboffices of the authority, insurance protecting the authority and
its officers and employees against liability, if any, for damage to
property or injury to or death of persons arising from its
operations and any other insurance the authority may agree to
provide under any resolution authorizing the issuance of water
development revenue bonds or in any trust agreement securing the
same.
(16) Charge, alter and collect rentals and other charges for
the use or services of any water development project as provided in
this article and charge and collect reasonable interest, fees and
charges in connection with the making and servicing of loans to governmental agencies in the furtherance of the purposes of this
article.
(17) Establish or increase reserves from moneys received or to
be received by the authority to secure or to pay the principal of
and interest on the bonds and notes issued by the authority
pursuant to this article.
(18) Administer on behalf of the Department of Environmental
Protection the Dam Safety Rehabilitation Revolving Fund Loan
Program pursuant to the provisions of article fourteen of chapter
twenty-two of this code. Revenues or moneys designated by this
code or otherwise appropriated for use by the authority pursuant to
the provisions of this article may not be used for the Dam Safety
Rehabilitation Revolving Fund Loan Program and moneys in the Dam
Safety Rehabilitation Revolving Fund shall be kept separate from
all revenues and moneys of the authority.
(19) Do all acts necessary and proper to carry out the powers
expressly granted to the authority in this article.
§22C-1-16. Rentals and other revenues from water development
projects owned by the authority; contracts and
leases of the authority; cooperation of other
governmental agencies; bonds of such agencies.
This section applies to any water development project or
projects which are owned, in whole or in part, by the authority.
The authority may charge, alter and collect rentals or other charges for the use or services of any water development project,
and contract in the manner provided by this section with one or
more persons, one or more governmental agencies, or any combination
thereof, desiring the use or services thereof, and fix the terms,
conditions, rentals or other charges for such use or services.
Such rentals or other charges are not subject to supervision or
regulation by any other authority, department, commission, board,
bureau or agency of the state and such contract may provide for
acquisition by such person or governmental agency of all or any
part of such water development project for such consideration
payable over the period of the contract or otherwise as the
authority in its sole discretion determines to be appropriate, but
subject to the provisions of any resolution authorizing the
issuance of water development revenue bonds or notes or water
development revenue refunding bonds of the authority or any trust
agreement securing the same. Any governmental agency which has
power to construct, operate and maintain public water facilities,
stormwater systems or wastewater facilities may enter into a
contract or lease with the authority whereby the use or services of
any water development project of the authority will be made
available to such governmental agency and pay for such use or
services such rentals or other charges as may be agreed to by such
governmental agency and the authority.
Any governmental agency or agencies or combination thereof may cooperate with the authority in the acquisition or construction of
a water development project and shall enter into such agreements
with the authority as are necessary, with a view to effective
cooperative action and safeguarding of the respective interests of
the parties thereto, which agreements shall provide for such
contributions by the parties thereto in such proportion as may be
agreed upon and such other terms as may be mutually satisfactory to
the parties, including, without limitation, the authorization of
the construction of the project by one of the parties acting as
agent for all of the parties and the ownership and control of the
project by the authority to the extent necessary or appropriate for
purposes of the issuance of water development revenue bonds by the
authority. Any governmental agency may provide such contribution
as is required under such agreements by the appropriation of money
or, if authorized by a favorable vote of the electors to issue
bonds or notes or levy taxes or assessments and issue notes or
bonds in anticipation of the collection thereof, by the issuance of
bonds or notes or by the levying of taxes or assessments and the
issuance of bonds or notes in anticipation of the collection
thereof and by the payment of such appropriated money or the
proceeds of such bonds or notes to the authority pursuant to such
agreements.
Any governmental agency, pursuant to a favorable vote of the
electors in an election held for the purpose of issuing bonds to provide funds to acquire, construct or equip, or provide real
estate and interests in real estate for a public water facility,
stormwater system or wastewater facility, whether or not the
governmental agency at the time of such an election had the
authority to pay the proceeds from such bonds or notes issued in
anticipation thereof to the authority as provided in this section,
may issue such bonds or notes in anticipation of the issuance
thereof and pay the proceeds thereof to the authority in accordance
with an agreement between such governmental agency and the
authority
: Provided, That the legislative authority of the
governmental agency finds and determines that the water development
project to be acquired or constructed by the authority in
cooperation with such governmental agency will serve the same
public purpose and meet substantially the same public need as the
facility otherwise proposed to be acquired or constructed by the
governmental agency with the proceeds of such bonds or notes.