H. B. 3182
(By Mr. Speaker, Mr. Kiss, and Delegates Cann,
Stalnaker, Kominar, Michael and Varner)
[Introduced March 24, 2005; referred to the
Committee on Government Organization then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-1B-1, §5B-1B-2,
§5B-1B-3, §5B-1B-4, §5B-1B-5, §5B-1B-6, §5B-1B-7, §5B-1B-8 and
§5B-1B-9, all relating to the creation of community
infrastructure investment program within the Department of
Commerce; legislative findings; definitions; granting
rule-making authority; authority to promulgate emergency
rules; establishing process for issuance of certificate of
appropriateness; providing for community infrastructure
investment agreements; setting minimum terms; authority of
Division of Health and Department of Environmental Protection
not affected; requiring report to Joint Committee on
Government and Finance; providing for administrative fees;
establishing exemption from authority of Public Service
Commission; and setting time limits for approval.
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 §5B-1B-1, §5B-1B-2, §5B-1B-3, §5B-1B-4, §5B-1B-5, §5B-1B-6, §5B-1B-7, §5B-1B-8 and
§5B-1B-9, all to read as follows:
ARTICLE 1B. COMMUNITY INFRASTRUCTURE INVESTMENT PROJECTS.
§5B-1B-1. Legislative findings.
The Legislature finds and declares that:
(a) There is a growing need for the extension of public water
and sewer services throughout the state and that the extension of
these services and facilities maintains the health and economic
vitality of the citizens of West Virginia. In addition, access to
infrastructure facilities is equally essential to economic
development in all regions of the state.
(b) The extension of public water and sewer services promotes
public health and safety in that it enables businesses, residences,
municipalities, and other entities to comply with state and federal
water quality standards.
(c) The cost of publicly owned sewer and water facilities are
normally born by the state, its subdivisions, and the citizens of
West Virginia and public indebtedness incurred to construct these
facilities constitutes a financial burden on the state and its
political subdivisions, as well as residential consumers.
(d) The rates for public water and sewer services charged to
customers of all service classes have risen in recent years due
primarily to the cost of utility construction and the cost of debt
service associated with construction.
(e) There are private business entities that are in need of
water and sewer services for various residential, commercial and industrial projects throughout the state and those entities are
willing to pay the cost associated with constructing needed public
water and sewer services and to dedicate the facility to the local
certificated public utility after construction.
(f) These private business entities need a method by which to
enter into agreements with municipalities, or public service
districts to enable the construction of new infrastructure as well
as the expansion of existing facilities.
(g) The dedication of infrastructure facilities to the local
certificated public utility without cost greatly benefits the
citizens of the state and promotes industrial, commercial, and
For the purposes of this article, the following words or terms
defined have the meaning ascribed to them herein:
(a) "Certificate of appropriateness" means the document
evidencing approval of a project and is issued by the Secretary of
the Department of Commerce pursuant to the provisions of this
article. The issuance of the certificate of appropriateness
exempts a project from the provisions of section eleven of article
two, chapter twenty-four of this code.
(b) "Community infrastructure investment agreement" means a
written agreement between a municipality or public service district
and an entity transferring legal title to a project facility to the
municipality or public service district.
(c) "Community infrastructure investment project" means any newly constructed or enlarged and improved project facility that
may be transferred to a municipality or public service district
without cost to the municipality or public service district
pursuant to the provisions of this article.
(d) "Person" means any individual, partnership, firm, society,
association, trust, corporation, or other business entity.
(e) "Project cost" means the capital cost of proposed
community infrastructure investment project facilities to be
constructed pursuant to the provisions of this article. Project
cost also refers to newly constructed or enlarged and improved
existing project facilities. Project cost does not include any of
the costs or expenses of ordinary operation and maintenance of the
project facilities when they become operational.
(f)"Project facilities" mean waste water treatment plants or
water treatment plants constructed pursuant to the provisions of
this article and include, but are not limited to, related storage
buildings or structures, meters, hydrants, pump stations, force and
gravity mains, transmission lines, and other fixtures related to
the construction of water or sewer facilities. Project facilities
do not include the extension of collection and distribution lines
or facilities from or to the project constructed pursuant to the
provisions of this article to the property of any user of project
(g) "Public service district" means those public corporations
and political subdivisions of the state created pursuant to the provisions of section two, article thirteen-a, chapter sixteen of
(h) "Secretary" means the Secretary of the Department of
Commerce established in section one, article one, chapter five-b,
of this code.
§5B-1B-3. Creation of Community Infrastructure Investment Program;
certificate of appropriateness; rule-making authority.
(a) There is hereby created a Community Infrastructure
Investment Program within the Department of Commerce. The purpose
of the program is to facilitate the construction or expansion of
project facilities for the promotion of economic development and or
municipality or public service district the protection of public
health and environment in the state. A municipality or public
service district may enter into a community infrastructure
investment agreement with an entity if the cost of the project does
not exceed ten million dollars. The public service district or
municipality shall apply to the Secretary for approval of the
agreement and project. Neither a municipality nor a public service
district is required to participate in this program.
(b) If the Secretary finds that the community infrastructure
investment project meets the requirements set out in this article,
the Secretary may issue a certificate of appropriateness to the
municipality or public service district.
(c) Municipalities or public service districts may jointly
enter into agreements with any entity for the purpose of applying
to the Secretary of the Department of Commerce for approval of project facilities. Any proposed agreement shall include the
minimum terms and conditions established by the provisions of
section four of this article.
(d) The Secretary shall 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.
A municipality or a public service district may not enter into a
community infrastructure investment agreement without the approval
of the Secretary who is solely responsible for the approval.
§5B-1B-4. Community infrastructure investment agreements; terms;
report to Joint Committee on Government and Finance.
(a) Municipalities and public service districts have, with the
approval of the Secretary, the power and authority to enter into
community infrastructure investment agreements with any person or
entity for the purpose of constructing new project facilities, or
substantially improving or expanding project facilities.
(b) The Secretary shall review and may approve community
infrastructure investment agreements.
(c) Each agreement shall contain the following terms and
(1) The project facilities shall be engineered and constructed
in accordance with the requirements for new construction
established by the municipality or public service district;
(2) Proof or certification of the financial ability of the
municipality or public service district to maintain and operate the
(3) At the conclusion of a fixed term of months the title to
the public facility shall be transferred without cost to the
municipality or public service district;
(4) A finding, supported by documentation required by the
Secretary, that the construction of the new public facility, or the
substantial improvement or expansion of an existing public
facility, either: (i) Fosters economic growth by promoting
commercial, industrial, or residential development; or (ii)
improves water quality or otherwise enables the affected territory
to achieve compliance with any applicable state or federal health
or environmental law;
(5) The municipality or public service district shall receive
or otherwise obtain without cost to the public all real and
personal property and all necessary rights-of-way of the facility
and as needed for the operation of the public facility;
(6) The rates charged by the municipality or public service
district to new customers to be served by the project facility
shall be the rates in effect at the time of transfer of the project
facility to the utility until new rates may be approved by the
Public Service Commission, and the rates charged by the
municipality or public service district to existing customers may
not be impacted as a result of the obligation of the public service
district or municipality pursuant to the community infrastructure
(7) Confirmation that the agreement does not violate any of
the bond covenants imposed on the municipality or public service
(8) Proof that necessary permits, where applicable, have been
obtained from the Division of Health and the Department of
Environmental Protection; and
(9) Any other conditions that the Secretary may determine to
(d) If the Secretary finds that the community infrastructure
investment agreement meets the requirements contained in this
article, the Secretary shall issue a certificate of appropriateness
to the parties.
(e) Not later than thirty days prior to the issuance of a
certificate of appropriateness for any community infrastructure
investment project, the Secretary shall first submit a report of
the same to the Legislature's Joint Committee on Government and
§5B-1B-5. Authority of the Department of Environmental Protection
and Division of Health not affected.
Nothing contained in this article may be construed to affect
the authority of the Department of Environmental Protection
pursuant to the provisions of chapter twenty-two of this code, nor
the authority of the Division of Health pursuant to the provisions
of chapter sixteen of this code.
§5B-1B-6. Time for approval.
The Secretary shall approve or reject all applications for a
community investment infrastructure project or agreement within
sixty days of receipt, unless by mutual agreement, the time period
is extended. In no case shall the time period for approval extend
beyond ninety days.
The Secretary may establish by legislative rule a schedule of
fees reasonably calculated to pay for the costs of the
administration of the provisions of this article.
§5B-1B-8. Exemption from Public Service Commission approval.
All project facilities constructed or improved pursuant to the
provisions of this article are exempt from the provisions of
chapter twenty-four of this code until title to the public facility
is transferred to the municipality or public service district.
Nothing herein may be construed to give the Public Service
Commission authority to regulate or intervene in the approval and
construction of any project or agreement provided
article. Notwithstanding any other provision of this code to the
contrary, the acquisition of a project facility by a municipality
or public service district under the provisions of this article
does not require the issuance of a certificate of convenience and
necessity from the Public Service Commission.
§5B-1B-9. Rule-making authority.
The Secretary may propose legislative rules for promulgation
in accordance with the provisions of article three, chapter
twenty-nine-a of this code to effectuate the purposes of this article. Notwithstanding any provision of this code to the
contrary, the proposed legislative rules for this article filed in
the State register by the first day of August, two thousand five,
may be filed as emergency rules.
NOTE: The purpose of this bill is to facilitate the
construction of certain public water and sewer infrastructure
projects without cost to the public; for the promotion of economic
development; and to provide assistance to municipalities and public
service districts in achieving compliance with state and federal
water quality standards.
This article is new; therefore, strike-throughs and
underscoring have been omitted.