ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2863
(By Delegates Manchin, Perdue, Schadler,
White, Caputo, Morgan, M. Poling,
Webster, Boggs and Fragale)
[Passed April 10, 2009; in effect from passage.]
AN ACT
to amend and reenact §5G-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §22C-1-5 of said code;
to amend and reenact §24-2-11 of said code; to amend and
reenact §31-15A-3 and §31-15A-6 of said code, all relating to
construction of state utility projects; putting limitations on
engineering design and construction inspection fees for state
and state subdivision sponsored utility construction;
requiring all Water Development Authority sponsored utility
projects to get authorization prior to removal of proposed
customers of a project; requiring the governmental agency
administering the utility project to perform an annual
maintenance audit of the utility; altering the number of
customers or proposed customers protesting requiring a formal
hearing; reducing time periods for the Public Service
Commission to review and approve certain applications by public utilities for certificate of public convenience and
necessity; and providing for additional members of the West
Virginia Infrastructure and Jobs Development Council.
Be it enacted by the Legislature of West Virginia:
That §5G-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §22C-1-5 of said code be amended and
reenacted; that §24-2-11 of said code be amended and reenacted; and
that §31-15A-3 and §31-15A-6 of said code be amended and reenacted,
all to read as follows:
CHAPTER 5G. PROCUREMENT OF ARCHITECT-ENGINEERSERVICES BY STATE AND
ITS SUBDIVISIONS.
ARTICLE 1. PROCUREMENT OF ARCHITECT-ENGINEER SERVICES.
§5G-1-3. Contracts for architectural and engineering services;
selection process where total project costs are estimated to
cost $250,000 or more.
In the procurement of architectural and engineering services
for projects estimated to cost $250,000 or more, the director of
purchasing shall encourage firms engaged in the lawful practice of
the profession to submit an expression of interest, which shall
include a statement of qualifications and performance data, and may
include anticipated concepts and proposed methods of approach to
the project. All jobs shall be announced by public notice published
as a Class II legal advertisement in compliance with the provisions
of article three, chapter fifty-nine of this code. A committee of three to five representatives of the agency initiating the request
shall evaluate the statements of qualifications and performance
data and other material submitted by interested firms and select
three firms which, in their opinion, are best qualified to perform
the desired service: Provided, That on projects funded wholly or in
part by school building authority moneys, in accordance with
sections fifteen and sixteen, article nine-d, chapter eighteen of
this code, two of said three firms shall have had offices within
this state for a period of at least one year prior to submitting an
expression of interest regarding a project funded by school
building authority moneys. Interviews with each firm selected shall
be conducted and the committee shall conduct discussions regarding
anticipated concepts and proposed methods of approach to the
assignment. The committee shall then rank, in order of preference,
no less than three professional firms deemed to be the most highly
qualified to provide the services required, and shall commence
scope of service and price negotiations with the highest qualified
professional firm for architectural or engineering services or
both. Should the agency be unable to negotiate a satisfactory
contract with the professional firm considered to be the most
qualified, at a fee determined to be fair and reasonable, price
negotiations with the firm of second choice shall commence. Failing
accord with the second most qualified professional firm, the
committee shall undertake price negotiations with the third most qualified professional firm. Should the agency be unable to
negotiate a satisfactory contract with any of the selected
professional firms, it shall select additional professional firms
in order of their competence and qualifications and it shall
continue negotiations in accordance with this section until an
agreement is reached: Provided, however, That county boards of
education may either elect to start the selection process over in
the original order of preference or it may select additional
professional firms in order of their competence and qualifications
and it shall continue negotiations in accordance with this section
until an agreement is reached: and Provided further, That for any
water or wastewater construction project the engineering design and
construction inspection costs may not exceed the amount calculated
pursuant to the compensation curves for consulting engineering
services based upon project construction costs published by the
American Society of Civil Engineers manual of practice, unless
granted a variance by the Infrastructure and Jobs Development
Council established pursuant to article fifteen-a, chapter thirty-
one of this code.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-5. Authority may construct, finance, maintain, etc., water
development projects; loans to governmental agencies are subject to terms of loan agreements.
To accomplish the public policies and purposes and to meet the
responsibility of the state as set forth in this article, the water
development authority may initiate, acquire, construct, maintain,
repair and operate water development projects or cause the same to
be operated pursuant to a lease, sublease or agreement with any
person or governmental agency; may make loans and grants to
governmental agencies for the acquisition or construction of water
development projects by governmental agencies, which loans may
include amounts to refinance debt issued for existing water
development projects of the governmental agency when the
refinancing is in conjunction with the financing for a new water
development project regardless of the source of the financing for
the new project:
Provided, That the amount of the refinancing may
not exceed 50% of the aggregate amount of the refinancing of an
existing project and the financing of a new project; and may issue
water development revenue bonds of this state, payable solely from
revenues, to pay the cost of projects, or finance projects, in
whole or in part, by loans to governmental agencies. A water
development project may not be undertaken unless it has been
determined by the authority to be consistent with any applicable
comprehensive plan of water management approved by the Secretary of
the Department of Environmental Protection or in the process of
preparation by the secretary and to be consistent with the standards set by the state environmental quality board, for the
waters of the state affected thereby. Any resolution of the
authority providing for acquiring or constructing projects or for
making a loan or grant for projects shall include a finding by the
authority that the determinations have been made. A loan agreement
shall be entered into between the authority and each governmental
agency to which a loan is made for the acquisition or construction
of a water development project, which loan agreement shall include,
without limitation, the following provisions:
(1) The cost of the project, the amount of the loan, the terms
of repayment of the loan and the security therefor, which may
include, in addition to the pledge of all revenues from the project
after a reasonable allowance for operation and maintenance
expenses, a deed of trust or other appropriate security instrument
creating a lien on the project;
(2) The specific purposes for which the proceeds of the loan
shall be expended including the refinancing of existing water
development project debt as provided above, the procedures as to
the disbursement of loan proceeds and the duties and obligations
imposed upon the governmental agency in regard to the construction
or acquisition of the project, including engineering fees and other
administrative costs relating to development of the project;
(3) The agreement of the governmental agency to impose,
collect, and, if required to repay the obligations of the governmental agency under the loan agreement, increase service
charges from persons using the project, which service charges shall
be pledged for the repayment of the loan together with all
interest, fees and charges thereon and all other financial
obligations of the governmental agency under the loan agreement;
(4) The agreement of the governmental agency to comply with
all applicable laws, rules and regulations issued by the authority
or other state, federal and local bodies in regard to the
construction, operation, maintenance and use of the project;
(5) The number of proposed customers and their physical
locations within the project, and providing as a condition of the
agreement, that no proposed customers listed in the project
application agreement may be removed from inclusion in the project
without prior authorization of the board; and
(6) The agreement of the governmental agency to perform an
annual maintenance audit which maintenance audit shall be submitted
to the board and the Public Service Commission of West Virginia.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11. Requirements for certificate of public convenience and
necessity.
(a) A public utility, person or corporation may not begin the
construction of any plant, equipment, property or facility for
furnishing to the public any of the services enumerated in section one, article two of this chapter, nor apply for, nor obtain any
franchise, license or permit from any municipality or other
governmental agency, except ordinary extensions of existing systems
in the usual course of business, unless and until it shall obtain
from the Public Service Commission a certificate of public
convenience and necessity authorizing such construction franchise,
license or permit.
(b) Upon the filing of any application for the certificate,
and after hearing, the commission may, in its discretion, issue or
refuse to issue, or issue in part and refuse in part, the
certificate of convenience and necessity:
Provided, That the
commission, after it gives proper notice and if no substantial
protest is received within thirty days after the notice is given,
may waive formal hearing on the application. Notice shall be given
by publication which shall state that a formal hearing may be
waived in the absence of substantial protest, made within thirty
days, to the application. The notice shall be published as a Class
I legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code. The publication area shall
be the proposed area of operation.
(c) Any public utility, person or corporation subject to the
provisions of this section shall give the commission at least
thirty days' notice of the filing of any the application for a
certificate of public convenience and necessity under this section:
Provided, That the commission may modify or waive the thirty-day
notice requirement and shall waive the thirty-day notice
requirement for projects approved by the Infrastructure and Jobs
Development Council.
(d) The commission shall render its final decision on any
application filed under the provisions of this section or section
eleven-a of this article within two hundred seventy days of the
filing of the application and within ninety days after final
submission of any such application for decision following a
hearing:
Provided, That if the application is for authority to
construct a water and sewer project and the projected total cost is
less than $10 million, the Commission shall render its final
decision within two hundred twenty-five days of the filing of the
application.
(e) The commission shall render its final decision on any
application filed under the provisions of this section that has
received the approval of the Infrastructure and Jobs Development
Council pursuant to article fifteen-a, chapter thirty-one of this
code within one hundred eighty days after filing of the
application:
Provided, That if a substantial protest is received
within thirty days after the notice is provided pursuant to
subsection (b) of this section, the commission shall render its
final decision within two hundred seventy days or two hundred
twenty-five days of the filing of the application, whichever is applicable as determined in subsection (d).
(f) If the projected total cost of a project which is the
subject of an application filed pursuant to this section or section
eleven-a of this article is greater than $50 million, the
commission shall render its final decision on any such application
filed under the provisions of this section or section eleven-a of
this article within four hundred days of the filing of the
application and within ninety days after final submission of any
such application for decision after a hearing.
(g) If a decision is not rendered within the, time-frames
established in this section, the commission shall issue a
certificate of convenience and necessity as applied for in the
application.
(h) The commission shall prescribe rules as it may deem proper
for the enforcement of the provisions of this section; and, in
establishing that public convenience and necessity do exist, the
burden of proof shall be upon the applicant.
(i) Pursuant to the requirements of this section, the
commission may issue a certificate of public convenience and
necessity to any intrastate pipeline, interstate pipeline or local
distribution company for the transportation in intrastate commerce
of natural gas used by any person for one or more uses, as defined
by rule, by the commission in the case of:
(1) Natural gas sold by a producer, pipeline or other seller to the person; or
(2) Natural gas produced by the person.
(j) A public utility, including a public service district,
which has received a certificate of public convenience and
necessity after July 8, 2005, from the commission and has been
approved by the Infrastructure and Jobs Development Council, is not
required to, and cannot be compelled to, reopen the proceeding if
the cost of the project changes but the change does not affect the
rates established for the project.
(k) Any public utility, person or corporation proposing any
electric power project that requires a certificate under this
section is not required to obtain such certificate before applying
for or obtaining any franchise, license or permit from any
municipality or other governmental agency.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-3. West Virginia Infrastructure and Jobs Development
Council continued; members of council; staff of council.
(a) The West Virginia infrastructure and Jobs Development
Council is continued. The council is a governmental
instrumentality of the state. The exercise by the council of the
powers conferred by this article and the carrying out of its
purpose and duties shall be considered and held to be, and are determined to be, essential governmental functions and for a public
purpose.
(b) The council shall consist of thirteen members, including:
(1) The Governor or designee;
(2) The Executive Director of the Housing Development Fund or
his or her designee;
(3) The director of the Division of Environmental Protection
or his or her designee;
(4) The director of the Economic Development Authority or his
or her designee;
(5) The Director of the Water Development Authority or his or
her designee;
(6) The Director of the Division of Health or his or her
designee;
(7) The chairman of the Public Service Commission or his or
her designee; and
(8) Six members representing the general public:
Provided,
That there shall be at least one member representing the general
public from each congressional district. No more than one member
representing the general public may be a resident of the same
county.
(c) The Governor shall appoint the public members of the
Council who shall serve three-year staggered terms.
(d) The Commissioner of the Division of Highways, the Executive Director of the state rail authority, two members of the
West Virginia Senate, two members of the West Virginia House of
Delegates, the Chancellor of the Higher Education Policy commission
and the Chancellor of the West Virginia Council for Community and
Technical College Education serve as advisory members of the
council. The advisory members shall be ex officio, nonvoting
members of the Council.
(e) The Governor shall appoint the legislative members of the
council:
Provided That no more than three of the legislative
members may be of the same political party.
(f) The Governor shall appoint the representatives of the
governing boards from a list of three names submitted by each
governing board.
(g) The Governor or designee shall serve as chairman and the
council shall annually appoint a vice chairperson and shall appoint
a secretary, who need not be a member of the Council and who shall
keep records of its proceedings. Seven members of the Council
shall constitute a quorum and the affirmative vote of at least the
majority of those members present shall be necessary for any action
taken by vote of the Council. A vacancy in the membership of the
council does not impair the rights of a quorum by such vote to
exercise all the rights and perform all the duties of the council.
(h) A member of the Council who serves by virtue of his or her
office does not receive compensation or reimbursement of expenses for serving as a member. The public members are reimbursed for
actual expenses incurred in the service of the Council in a manner
consistent with guidelines of the travel management office of the
Department of Administration.
(i) The Council meets at least monthly to review projects and
infrastructure projects requesting funding assistance and otherwise
to conduct its business and may meet more frequently if necessary.
Notwithstanding any other provision of this article to the
contrary, the Economic Development Authority is not subject to
council review with regard to any action taken pursuant to the
authority established in article fifteen, chapter thirty-one of
this code. The Governor's civil contingent fund is not subject to
council review with regard to projects or infrastructure projects
funded through the Governor's Civil Contingent Fund.
(j) The Water Development Authority shall provide office space
for the council and each governmental agency represented on the
council shall provide staff support for the council in the manner
determined appropriate by the council.
(k) The Council shall invite to each meeting one or more
representatives of the United States Department of Agriculture,
Rural Economic Community Development, the United States Economic
Development Agency and the United States Army Corps of Engineers or
any successors thereto. The council shall invite other appropriate
parties as is necessary to effectuate the purposes of this article.
§31-15A-6. Powers, duties and responsibilities of the council
generally; comprehensive assessment.
(a) In addition to the powers set forth elsewhere in this
article, the council is granted, has and may exercise all powers
necessary or appropriate to carry out and effectuate the purposes
and intent of this article. The council shall have the power and
capacity to:
(1) Provide consultation services to project sponsors in
connection with the planning, acquisition, improvement,
construction or development of any infrastructure project or
project;
(2) Periodically prepare a list of infrastructure projects or
projects which cannot meet the established funding guidelines of
the various state infrastructure agencies, other than the Housing
Development Fund, but which are consistent with the mandates of
this article and recommend to the Water Development Authority that
it make a grant or loan to the project sponsors from the
infrastructure fund to finance the cost of one or more such
projects or infrastructure projects;
(3) Do all other acts necessary and proper to carry out the
powers expressly granted to the authority in this article; and
(4) Make and execute contracts, commitments and obligations
and other instruments necessary or convenient for the exercise of
its powers.
(b) The council shall develop a comprehensive statewide
inventory of water supply systems and sewage treatment systems and
an assessment of current and future needs. The assessment shall
identify the areas of the state which do not have adequate public
water or sewage systems and offer recommendations for the
construction of new facilities or the extension or expansion of
existing facilities to meet the identified needs. The council
shall include in the assessment an identification of the obstacles,
issues and problems which prevent or inhibit development of
adequate infrastructure throughout the state, including financial,
governmental, physical, or geographical factors and make
recommendation as the council considers appropriate regarding the
obstacles, issues or problems identified. This comprehensive
inventory and assessment shall be updated at least once in every
three-year period after the initial assessment and inventory is
completed in 1996.
(c) The council shall study the viability of the consolidation
of public service districts throughout the state. The council
shall report their findings and conclusions on or before January
16, 1995 to the Governor, Speaker of the House of Delegates and
President of the Senate.