COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 206
(By Senators Oliverio, Dempsey, Fanning, Foster, Hunter, Jenkins,
Kessler, Barnes, Weeks, Unger, McKenzie, McCabe and Sharpe)
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[Originating in the Committee on the Judiciary;
reported February 28, 2006.]
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A BILL to amend and reenact §7-1-3u of the Code of West Virginia,
1931, as amended; to amend and reenact §20-1A-3 of said code;
to amend and reenact §21-9-4 and §21-9-12 of said code; and to
amend and reenact §24-2-2 of said code, all relating to
floodplain management and flood debris generally; requiring
floodplain management plans to regulate new construction,
placement of manufactured housing and storage of materials
which may become flood debris or present additional flood
hazards; requiring local governments to establish process for
approval of construction or installation of residence or
business in floodplain; authorizing reasonable fee for
services provided by local government; requiring local
governments establish penalties for violations of floodplain
management ordinances or plans; requiring landowner remove
certain structures located in streambed under certain circumstances; authorizing Public Land Corporation enter into
interagency agreements for assistance in removing certain
structures for streambeds; authorizing Public Land Corporation
remove certain structures from streambeds in limited
circumstances; clarifying rights, duties and privileges under
issuance of right of entry; providing for enforcement of right
of entry; authorizing Division of Labor to regulate
installation of manufactured housing in regulated floodplains;
authorizing rulemaking; requiring licensed dealers and
installers of manufactured housing obtain certificate of
approval for installation of homes in regulated floodplains;
providing for recordkeeping; providing for penalties;
prohibiting connection of electric service to new construction
of a residence or business or installation or relocation of
manufactured housing in regulated floodplain without local
government approval; requiring landowner to show proof of
local government approval to electrical inspector or provide
certification number; establishing certain requirements for
filing complaints with the Public Service Commission; and
requiring rulemaking by Public Service Commission.
Be it enacted by the Legislature of West Virginia:
That §7-1-3u of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §20-1A-3 of said code be amended and
reenacted; that §21-9-4 and §21-9-12 of said code be amended and
reenacted; and that §24-2-2 of said code be amended and reenacted;
all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3u. Authority of counties and municipalities to treat streams
to prevent floods.
(a) To protect people and property from floods, counties and
municipalities are hereby empowered
, unless otherwise prohibited by
state or federal law, to rechannel and dredge streams; remove
accumulated debris, snags, sandbars, rocks and any other kinds of
obstructions from streams; straighten stream channels; and carry
out erosion and sedimentation control measures and programs.
(b) For stream treatment to prevent floods as provided in this
section, counties and municipalities are hereby further empowered
to levy, within all constitutional and statutory limitations;
acquire property by purchase, exercise of the right of eminent
domain, lease, gift or grant; accept any and all benefits, moneys,
services and assistance which may be available from the federal and
state government or any private source; issue and sell bonds within
the constitutional and statutory limitations prescribed by law for
the issuance and sale of bonds by counties and municipalities for
public purposes generally. Any such levy shall be equal and
uniform throughout the county or municipality.
(c) The power and authority granted in this section, may be
exercised by any county or municipality in cooperation with each
other or separately as provided in section three-I of this article.
Any county or municipality which exercises any power or authority
set forth in this section shall comply with all applicable provisions of federal and state laws and rules and regulations
lawfully promulgated thereunder.
(d) Each county commission and municipal governing body shall,
as part of its flood plain management plan, on before June
thirtieth, two thousand seven, regulate the location of any
building, manufactured housing or recreational vehicle, whether
permanent or temporary, utilized for a business, residence,
vacation home or camp and storage of hazardous or floatable
materials, outbuildings, private culverts, pipes and fuel oil and
propane tanks within the regulated flood plain as defined by the
county or municipal ordinance or flood management plan as approved
by Federal Emergency Management Agency.
(1) The county commission or municipal governing body may,
prohibit such structures, vehicles and materials in the regulated
flood plain or require such structures, vehicles and materials to
be elevated above the level of the regulated flood plain on
reinforced piers, securely anchored to a fixed structure on a
permanent foundation, relocated out of the regulated flood plain or
utilize other appropriate measures designed to keep such items out
of streams, resist expected flood waters and impact from debris.
(2) Each county commission and municipal governing body shall
establish and enforce penalties for violations of its flood plain
management plan and any applicable ordnance.
(3) Each county commission and municipal governing body shall
establish
a process for certifying whether proposed construction or
installation of any public or private business or residence is located in the regulated flood plain designated on flood plain maps
or based on other credible, reliable information available to the
county or municipal flood plain manager. A reasonable fee shall be
established to cover the cost of making the certification.
(4) Each county commission and municipal governing body shall
establish
a process for approving construction or installation of
businesses or residences in the regulated flood plain. Any new
construction or installation in the regulated flood plain shall, at
a minimum, meet
the standards for construction of a building for
business or residential purposes or location of manufactured
housing in a flood plain published by the Federal Emergency
Management Agency or the United States Department of Housing and
Urban Development Authority, which ever is more protective of human
health and safety. More stringent standards may be adopted by a
county or municipal government when necessary to protect the
health, safety and welfare of the citizens of this State.
Reasonable fees shall be established to cover the cost of approving
construction or installation in the regulated flood plain and any
additional services provided by the local government such as
engineering design and inspecting the site, construction or
installation.
(5) A county commission or municipal governing body may
authorize and approve private contractors to conduct the
inspections and issue the certification or approval required by
this subsection.
(6) A county commission or municipal governing body that allows new or relocated businesses or residents to locate in the
regulated flood plain shall develop a procedure for issuing
certificates and design approvals to the businesses and residents
in a timely manner prior to the electrical inspection being
conducted at the business or residence. The procedure shall be
integrated with the system for electrical inspections prior to
connection of electric utility service to the business or
residence.
(7) A county commission or municipal governing body that
allows businesses or residents to locate in the regulated flood
plain shall
require the property owner to obtain adequate flood
insurance: Provided, that the county commission or municipal
governing body may exempt any business which would not suffer undue
financial loss as the result of a flood: Provided, however That no
such exemption may be granted if it would jeopardize receipt of
federal assistance after a flood.
(e) The term "stream" as used in this section means any
watercourse, whether natural or man-made, distinguishable by banks
and a bed, regardless of their size, through which water flows
continually or intermittently, regardless of its volume.
CHAPTER 20. NATURAL RESOURCES.
§20-1A-3. Public land corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the state auditor or any
local, state or federal agency, by purchase, lease or other
agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement,
receive by gifts and devises, or exchange, rights-of-way,
easements, waters and minerals suitable for public use;
(3) Require the landowner to remove, at his or her expense,
any abandoned structure located in a streambed, including, but not
limited to private culverts, pipes, bridges and low water
crossings, except those owned or operated by a railroad or the
division of highways. Removal may be required after the corporation
has determined that the following conditions exist: (I) the
structure is abandoned and (ii) the structure obstructs, inhibits
or otherwise alters the flow of the watercourse and causes or
increases the likelihood of flooding or streambed erosion, or
causes accumulation of materials behind the structure that alters
or otherwise inhibits the flow and direction of the watercourse.
(4) Require a landowner to remove, at his or her expense, any
structure that has been placed in a streambed without the required
right of entry into the streambed from the public land corporation
or any structure that varies from the structure which was granted
a right of entry. Any structure which is not removed within a
reasonable amount of time by the owner shall be removed by the
public land corporation at the owner's expense. The public land
corporation may use any lawful means necessary to collect
reimbursement from the owner for any structure that the corporation
removes from a streambed. All reimbursement moneys shall be
deposited into the Planning and Development-Public Land Corporation
Fund and may be expended for removal of structures in streambed.
(5) Enter into interagency agreements with any federal, state
or local government or contract with private business for removal
or assistance in removing structures from streambed.
(3) (6) Sell or exchange public lands where it is determined
that the sale or exchange of such tract meets any or all of the
following disposal criteria:
(A) The tract was acquired for a specific purpose and the
tract is no longer required for that or any other state purpose;
(B) Disposal of the tract serves important public objectives
including, but not limited to, expansion of communities and
economic development which cannot be achieved on lands other than
public lands and which clearly outweigh other public objectives and
values including, but not limited to, recreation and scenic values
which would be served by maintaining the tract in state ownership;
or
(C) The tract, because of its location or other
characteristics, is difficult and uneconomic to manage as part of
the public lands and is not suitable for management by another
state department or agency.
(4) (7) Sell, purchase or exchange lands or stumpage for the
purpose of consolidating lands under state or federal government
administration subject to the disposal criteria specified in
subdivision (3) (6) of this section;
(5) (8) Negotiate and effect loans or grants from the
government of the United States or any agency thereof for
acquisition and development of lands as may be authorized by law to be acquired for public use;
(6) (9) Expend the income from the use and development of
public lands for the following purposes:
(A) Liquidate obligations incurred in the acquisition,
development and administration of lands, until all obligations have
been fully discharged;
(B) Purchase, develop, restore and preserve for public use,
sites, structures, objects and documents of prehistoric,
historical, archaeological, recreational, architectural and
cultural significance to the state of West Virginia; and
(C) Obtain grants or matching moneys available from the
government of the United States or any of its instrumentalities for
prehistoric, historic, archaeological, recreational, architectural
and cultural purposes.
(7) (10) Designate lands, to which it has title, for
development and administration for the public use including
recreation, wildlife stock grazing, agricultural rehabilitation and
homesteading or other conservation activities;
(8) (11) Enter into leases as a lessor for the development and
extraction of minerals, including coal, oil, gas, sand or gravel,
except as otherwise circumscribed herein: Provided, That leases
for the development and extraction of minerals shall be made in
accordance with the provisions of sections five and six of this
article. The corporation shall reserve title and ownership to the
mineral rights in all cases;
(9) (12) Convey, assign, or allot lands to the title or custody of proper departments or other agencies of state government
for administration and control within the functions of departments
or other agencies as provided by law;
(10) (13) Make proper lands available for the purpose of
cooperating with the government of the United States in the relief
of unemployment and hardship or for any other public purpose.
(b) There is hereby created in the state treasury a special
public land corporation fund into which shall be paid all proceeds
from public land sales and exchanges and rents, royalties and other
payments from mineral leases. The corporation may acquire public
lands from use of the payments made to the fund, along with any
interest accruing to the fund. The corporation shall report
annually, just prior to the beginning of the regular session of the
Legislature, to the finance committees of the Legislature on the
financial condition of the special fund. The corporation shall
report annually to the Legislature on its public land holdings and
all its leases, its financial condition and its operations and
shall make such recommendations to the Legislature concerning the
acquisition, leasing, development, disposition and use of public
lands.
(c) All state agencies, institutions, divisions and
departments shall make an inventory of the public lands of the
state as may be by law specifically allocated to and used by each
and provide to the corporation a list of such public lands and
minerals, including their current use, intended use or best use to
which lands and minerals may be put: Provided, That the division of highways need not provide the inventory of public lands
allocated to and used by it. The inventory shall identify those
parcels of land which have no present or foreseeable useful purpose
to the state of West Virginia. The inventory shall be submitted
annually to the corporation by the first day of August. The
corporation shall compile the inventory of all public lands and
minerals and report annually to the Legislature by no later than
the first day of January, on its public lands and minerals and the
lands and minerals of the other agencies, institutions, divisions
or departments of this state which are required to report their
holdings to the corporation as set forth in this subsection, and
its financial condition and its operations.
(d) A right of entry granted by the public land corporation is
a privilege authorizing specific activity in a streambed. Failure
to obtain a right of entry into a streambed or changing the
structure permitted in a streambed without obtaining an amended
right of entry is a violation punishable by a civil penalty not to
exceed five hundred dollars per day for each day the violation
exists.
(1) Any law enforcement officer may enter private property to
investigate a potential violation and may issue a citation to a
landowner if a violation exists.
(2) A landowner may appeal a citation to the director of the
division of natural resources. The decision of the director is the
final agency decision and may be appealed by either party under the
provisions of chapter twenty-nine, article five of this code.
(3) All fines collected pursuant to this section shall be
deposited in the Planning and Development-Public Land Corporation
Fund.
(4) The corporation shall propose for promulgation, in
accordance with the provisions of chapter twenty-nine-a, article
three of this code, rules for obtaining a right of entry and
determining what may be placed in streambed and establishing
procedures required by this section.
CHAPTER 21. LABOR.
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY
STANDARDS.
§21-9-4. General powers and duties; persons adversely affected
entitled to hearing.
(a) The board shall have the power to:
(1) Regulate its own procedure and practice;
(2) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, to implement the provisions of this article and the federal
standards;
(3) Advise the commissioner in all matters within his
jurisdiction under this article;
(4) Prepare and submit to HUD a state plan application seeking
the designation of the board as a state administrative agency for
the purpose of administering and enforcing the federal standards
and take all other action necessary to enable the board to serve as
a state administrative agency;
(5) Study and report to the governor and the Legislature on
matters pertinent to the manufacture, distribution and sale of
manufactured housing in this state and recommend changes in the law
determined by the board to be necessary to promote consumer safety
and protect purchasers of manufactured housing;
(6) Conduct hearings and presentations of views consistent
with its rules and the federal standards;
(7) Approve or disapprove applications for licenses to
manufacturers, dealers, distributors and contractors in accordance
with section nine of this article, and revoke or suspend licenses
in accordance with that section, and set the amounts of license
fees and bonds or other forms of assurance in accordance with
sections nine and ten of this article;
(8) Delegate to and authorize the commissioner to exercise the
powers and duties of the board that the board may determine,
including without limitation, the authority to approve, disapprove,
revoke or suspend licenses in accordance with section nine of this
article;
(9) Require all new or previously owned manufactured homes
installed in a flood plain area in this state after the amendment
and reenactment of this section during the two thousand six
legislative session to be sufficiently secured to prevent the home
from being separated from its foundation or location during a
flood.
(A) The board shall promulgate a rule in accordance with the
provisions of chapter twenty-nine, article three of this code to implement the requirements of this subdivision.
(B) The board shall adopt standards which are no less
stringent than the standards published by the Federal Emergency
Management Agency. More stringent standards may be adopted when
necessary to protect the health, safety and welfare of the citizens
of this State.
(C) The rule shall require licensed dealers and installers to
obtain from the homeowner or obtain on behalf of the homeowner a
certificate from the county or municipal flood plain manager or
licensed engineer approved by the local flood plain manager that
the proposed home site is not in the regulated flood plain or that
the installation design has been approved by the local flood plain
manager or a licensed engineer approved by the local flood plain
manager, for site specific flooding conditions.
(D) A
copy of the site certification or installation approval
shall be maintained in a safe location by the licensed dealer or
installer for a minimum of seven years.
(E) The board shall require and provide all licensed dealers
and installers of manufactured housing information and practical
guidance and require regular training detailing the flood plain
installation requirements set forth in this subdivision or other
requirements required by a federal, state or local government.
(F) In addition to any other penalties provided by law, any
person failing to comply with the provisions of this section is in
violation of the applicable county or municipal flood plain
management plan and any applicable ordnance.
(b) Any person adversely affected by a decision of the board
or the commissioner shall be afforded an opportunity for hearing
before the board in accordance with section one, article five,
chapter twenty-nine-a, section one, article five of this code.
§21-9-12. Violation of article; penalties; injunction.
(a) Any person who violates any of the following provisions
relating to manufactured homes or any legislative rule proposed by
the board pursuant to the provisions of this article, is liable to
the state for a penalty, as determined by the board, not to exceed
one thousand dollars for each violation. Each violation
constitutes a separate violation with respect to each manufactured
home, except that the maximum penalty may not exceed one million
dollars for any related series of violations occurring within one
year from the date of the first violation. No person may:
(1) Manufacture for sale, lease, sell, offer for sale or
lease, or introduce or deliver, or import into this state any
manufactured home which is manufactured on or after the effective
date of any applicable standard established by a rule promulgated
by the board pursuant to the provisions of this article, or any
applicable federal standard, which does not comply with that
standard.
(2) Fail or refuse to permit access to or copying of records,
or fail to make reports or provide information or fail or refuse to
permit entry or inspection as required by the provisions of this
article.
(3) Fail to furnish notification of any defect as required by the provisions of 42 U.S.C. §5414.
(4) Fail to issue a certification required by the provisions
of 42 U.S.C. §5415 or issue a certification to the effect that a
manufactured home conforms to all applicable federal standards,
when the person knows or in the exercise of due care would have
reason to know that the certification is false or misleading in a
material respect.
(5) Fail to establish and maintain records, make reports, and
provide information as the board may reasonably require to enable
the board to determine whether there is compliance with the federal
standards; or fail to permit, upon request of a person duly
authorized by the board, the inspection of appropriate books,
papers, records and documents relative to determining whether a
manufacturer, dealer, distributor or contractor has acted or is
acting in compliance with the provisions of this article or
applicable federal standards.
(6) Issue a certification pursuant to the provisions of 42
U.S.C. §5403(a), when the person knows or in the exercise of due
care would have reason to know that the certification is false or
misleading in a material respect.
(7) Violate the provisions of section four, subsection (a),
subdivision nine
of this article, any person found guilty of such
violation will be subjected to double the maximum penalty provided
by this section and disciplinary action by the board.
(b) Subdivision (1), subsection (a) of this section does not
apply to:
(1) The sale or the offer for sale of any manufactured home
after the first purchase of it in good faith for purposes other
than resale;
(2) Any person who establishes that he did not have reason to
know in the exercise of due care that the manufactured home is not
in conformity with applicable federal standards; or
(3) Any person who, prior to the first purchase, holds a
certificate by the manufacturer or importer of the manufactured
home to the effect that the manufactured home conforms to all
applicable federal standards, unless that person knows that the
manufactured home does not conform to those standards.
(c) Any manufacturer, dealer, distributor or contractor who
engages in business in this state without furnishing a bond or
other form of assurance as required by the provisions of this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than fifty dollars for each day the
violation continues.
(d) The board may institute proceedings in the circuit court
of the county in which the alleged violation occurred or are
occurring to enjoin any violation of the provisions of this
article.
(e) Any person or officer, director, partner or agent of a
corporation, partnership or other entity who willfully or knowingly
violates any of the provisions listed in subsection (a) of this
section, in any manner which threatens the health or safety of any
purchaser, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in
the county or regional jail for a period of not more than one year,
or both fined and imprisoned.
(f) Nothing in this article applies to any bank or financial
institution engaged in the disposal of foreclosed or repossessed
manufactured homes.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-2. General power of commission to regulate public
utilities.
(a) The commission is hereby given power to investigate all
rates, methods and practices of public utilities subject to the
provisions of this chapter; to require them to conform to the laws
of this state and to all rules, regulations and orders of the
commission not contrary to law; and to require copies of all
reports, rates, classifications, schedules and timetables in effect
and used by the public utility or other person, to be filed with
the commission, and all other information desired by the commission
relating to the investigation and requirements, including
inventories of all property in such form and detail as the
commission may prescribe. The commission may compel obedience to
its lawful orders by mandamus or injunction or other proper
proceedings in the name of the state in any circuit court having
jurisdiction of the parties or of the subject matter, or the
supreme court of appeals direct, and the proceedings shall have
priority over all pending cases. The commission may change any intrastate rate, charge or toll which is unjust or unreasonable or
any interstate charge with respect to matters of a purely local
nature which have not been regulated by or pursuant to an act of
Congress and may prescribe a rate, charge or toll that is just and
reasonable, and change or prohibit any practice, device or method
of service in order to prevent undue discrimination or favoritism
between persons and between localities and between commodities for
a like and contemporaneous service. But in no case shall the rate,
toll or charge be more than the service is reasonably worth,
considering the cost of the service. Every order entered by the
commission shall continue in force until the expiration of the
time, if any, named by the commission in the order, or until
revoked or modified by the commission, unless the order is
suspended, modified or revoked by order or decree of a court of
competent jurisdiction: Provided, That in the case of utilities
used by emergency shelter providers, the commission shall prescribe
such rates, charges or tolls that are the lowest available.
"Emergency shelter provider" means any nonprofit entity which
provides temporary emergency housing and services to the homeless
or to victims of domestic violence or other abuse.
(b) Notwithstanding any other provision of this code to the
contrary, rates are not discriminatory if, when considering the
debt costs associated with a future water or sewer project which
would not benefit existing customers, the commission establishes
rates which ensure that the future customers to be served by the
new project are solely responsible for the debt costs associated with the project.
(c) The commission shall, after June thirtieth, two thousand
seven, prohibit any electric utility from providing service to any
newly constructed public or private building or new installation or
relocation of manufactured housing, to be used for commercial or
dwelling purposes, until the building or property owner or his or
her designee provides the electrical inspector, where applicable,
with a certificate that the building or manufactured housing is not
in the regulated flood plain, as determined by the county
commission or municipal governing body or, if the building or
manufactured housing is in the regulated flood plain, that the
construction, engineering and installation design have been
approved by the county or municipal flood plain manager for site
specific flooding conditions. In any area that does not have an
electrical inspector, the homeowner shall provide a floodplain
certificate number to the utility at the time the request for
service is made. It is not the responsibility of the utility to
obtain for the customer the flood plain certification or
construction, engineering or installation design approval. It is
the responsibility of the customer, at the time a complaint for
failure to timely provide service is filed, to provide the
commission with a flood plain certificate or design approval
required in this subsection. Failure to provide the flood plain
certificate or design approval will result in rejection of the
complaint prior to requiring a response from the utility. The
commission shall allow a complaint to be filed at a later date if the customer provides the flood plain certificate or design
approval required by this subdivision.
NOTE: The purpose of this bill is enact measures to assist
local and state authorities in flood plain management for the
protection of the health and safety of the citizens of this sate.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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