COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 322
(By Senators Tomblin, Mr. President, Bailey, McCabe, Caldwell,
Chafin, Fanning, Plymale, Unger and Rowe)
____________
[Originating in the Committee on Economic Development;
reported February 25, 2004.]
____________
A BILL to amend and reenact §4-10-5 of the code of West Virginia,
1931, as amended; and to amend and reenact §5D-1-5, §5D-1-5b,
§5D-1-6, §5D-1-12, §5D-1-14, §5D-1-15 and §5D-1-16 of said
code, all relating to the public energy authority; repealing
the termination of the authority and authority board scheduled
for the first day of July, two thousand four; reconstituting
the authority for the sole purpose of construction,
maintenance and operation of flood mitigation dams with
hydroelectric power generation facilities, electric
transmission lines integral to such generation facilities,
reservoirs and water impoundments formed by such dams and
lands bordering on such reservoirs and impoundments;
establishing legislative purpose and intent; providing definitions; establishing powers, duties and responsibilities
of the authority; requiring public hearings before certain
actions of the authority; authorizing the authority to
construct, finance, lease, sale, maintain, repair and
otherwise undertake projects; authorizing the sale of
electricity from projects solely in the wholesale market;
exemption from taxation of projects owned by the authority;
acquisition of property by the authority; and providing that
the authority is not a public utility and is not subject to
the jurisdiction of the public service commission.
Be it enacted by the Legislature of West Virginia:
That §4-10-5 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §5D-1-5, §5D-1-5b, §5D-1-6, §5D-
1-12, §5D-1-14, §5D-1-15 and §5D-1-16
of said code be amended and
reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-5. Termination of agencies following preliminary performance
reviews.
The following agencies terminate on the date indicated, but no
agency terminates under this section unless a preliminary
performance review has been conducted upon the agency:
(1) On the first day of July, one thousand nine hundred
ninety-six: Juvenile facilities review panel.
(2) On the first day of July, one thousand nine hundred
ninety-seven: Public employees insurance agency advisory board;
cable television advisory board.
(3) On the first day of July, one thousand nine hundred ninety-nine: Tree fruit industry self improvement assessment
program.
(4) On the first day of July, two thousand: Terms of family
law master and family law master system.
(5) On the first day of July, two thousand three: Advisory
council on public health; governors' office of fiscal risk analysis
and management.
(6) On the first day of July, two thousand four: Meat
inspection program of the department of agriculture; state board of
risk and insurance management; real estate commission; rural health
advisory panel; state fire commission; motorcycle safety awareness
board; motor vehicle dealers advisory board; interstate commission
on uniform state laws; design-build board; center for professional
development board; parks section and parks function of the division
of natural resources; office of water resources of the department
of environmental protection; division of protective services; state
rail authority; care home advisory board; steel advisory commission
and steel futures program; children's health insurance board;
capitol building commission; public defender services; public
employees insurance agency finance board; office of explosives and
blasting; workers' compensation appeal board; records management
and preservation board;
public energy authority and public energy
authority board; waste tire fund; and interstate commission on the
Potomac River basin.
(7) On the first day of July, two thousand five: Board of
banking and financial institutions; lending and credit rate board;
governor's cabinet on children and families; oil and gas
conservation commission; health care authority; educational broadcasting authority; clean coal technology council; racing
commission; manufactured housing construction and safety board;
environmental quality board; commission for the deaf and
hard-of-hearing; public employees insurance agency; oral health
program; and emergency medical services advisory council.
(8) On the first day of July, two thousand six: Family
protection services board; medical services fund advisory council;
West Virginia stream partners program; Ohio River valley water
sanitation commission; state lottery commission; whitewater
commission within the division of natural resources; unemployment
compensation; women's commission; personal assistance services
program; contractor licensing board; and soil conservation
committee.
(9) On the first day of July, two thousand seven: Human
rights commission; office of coalfield community development; and
state geological and economic survey.
(10) On the first day of July, two thousand eight: Ethics
commission; public service commission; and marketing and
development division of department of agriculture.
(11) On the first day of July, two thousand nine: Driver's
licensing advisory board; West Virginia commission for national and
community service; membership in the southern regional education
board; bureau of senior services; oil and gas inspector's examining
board; and commission on holocaust education.
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY
OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS
AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY ACT.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-2. Purpose and intent.
The Legislature finds and declares:
(a) That the long-term health and economy of the United States
will depend upon the availability of reliable sources of energy;
(b) That the state of West Virginia has abundant reserves of
coal, natural gas and other natural resources;
(c) That the economy of the state of West Virginia needs a
reliable and dependable market for the state's coal, natural gas
and other natural resources and the by-products thereof;
(d) That the state of West Virginia needs to encourage the
efficient utilization and disposition of by-products resultant from
the production of natural resources;
(e) That, with all due regard to the protection of the
environment and husbandry of the natural resources of this state,
the health, happiness, safety, right of gainful employment and
general welfare of the citizens of this state will be promoted by
the establishment and operation of coal fired electric generating
plants and transmission facilities and the establishment and
operation of natural gas transmission projects and/or other energy
projects; and
(a) The Legislature finds and declares that;
(1) Many areas of the state have suffered great personal and
economic loss as a result of flooding and, if flood controls
measures are not put in place, these areas are likely to suffer in
the future;
(2) Because of past and likely future flooding, some of these
areas have been and will be slow to recover economically, if they can do so at all;
(3) Because of the topography and geology of these areas, it
may be feasible in some of them to develop flood controls in the
form of dams and resulting reservoirs and water impoundments that
will also provide opportunities for economic development, housing,
recreation, tourism, mitigation of the effects of mining activity
and other beneficial results;
(4) The financial feasibility of such flood controls may be
enhanced by revenues derived from the sale of electric power
generated by hydroelectric power facilities constructed in
conjunction with such dams, reservoirs and impoundments; and
(f)(5) That the means and measures herein authorized for the
financing, building and operation of the facilities described in
subsection (e) subdivisions (3) and (4) of this section are, as a
matter of public policy, for the public purpose of the state.
(b) Accordingly, the public energy authority created herein
shall be authorized to initiate such directives and take such
measures as may be necessary to effectuate the public purpose of
this chapter.
§5D-1-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the West Virginia public energy
authority created in section four of by this article, the duties,
powers, responsibilities and functions of which are specified in
this article.
(2) "Board" means the West Virginia public energy authority
board created in section four of this article, which shall manage and control the West Virginia public energy authority.
(3) "Bond" means a revenue bond, or note or other evidence of
indebtedness, including, but not limited to, a taxable bond and
commercial paper, issued by the West Virginia economic development
authority or by the authority to effect the intents and purposes of
this article.
(4) "Construction" includes means acquisition, construction,
acquisition, reconstruction, enlargement, improvement and or
providing furnishings or equipment.
(5) "Cost" as applied to natural gas transmission projects,
electric power projects or other energy projects a project or
projects authorized by the authority includes, but is not limited
to: The cost of their acquisition and construction, including all
costs pertaining to pipelines; the cost of acquisition of all land,
rights-of-way, property rights, easements, franchise rights,
contract rights, lease rights and other rights or interests
required by the authority for such acquisition and construction;
the cost of demolishing or removing any pipeline, buildings or
other structures on, over or under land so acquired, including the
cost of acquiring any lands to which such pipelines, buildings or
other 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
and access roads to private property, including the cost of land or
easements therefor; the cost of all machinery, furnishings and
equipment, all financing finance charges, and interest prior to and
during construction and after completion of construction; the cost
of all engineering services and all expenses of research and development with respect to natural gas transmission projects,
electric power projects, and related facilities projects; 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 projects; all administrative expenses and
such other expenses as may be necessary or incident to the
acquisition or construction of any such projects; the financing of
such acquisition or construction, and the cost of financing of the
placing of any such project in operation the construction and
operation of projects. Any obligation or expenses incurred after
the effective date of this article by any person, 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 shall
be regarded as a part of the cost of such project and shall be
reimbursed out of the proceeds of loans or bonds as authorized by
the provisions of this article.
(6) "End-user" means any person who consumes or uses natural
gas in connection with any industrial, commercial, residential or
other use, except that such term shall not include any person
purchasing such natural gas for resale to another person. For
purposes of this article, the term end-user shall include local
distribution companies and intrastate pipelines as defined in
article three, chapter twenty-four of this code.
(7) "Electric power project" means the complex of structures,
machinery and associated equipment for the generation or transmission of electricity including the production and
distribution of other energy produced from coal, natural gas and
by-products of coal occurring as a result of the production of
coal, and all facilities related or incidental thereto.
(8)(6) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; public service districts; regional governmental
authorities and any other governmental agency, entity, political
subdivision, public corporation or agency; 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) "Local distribution company" means any person, other than
any interstate pipeline or any intrastate pipeline, engaged in
transportation or local distribution of natural gas and the sale of
natural gas for ultimate consumption.
(10) "Natural gas transmission project" means any natural gas
pipeline and all facilities necessary or incident to the
transportation of natural gas to or for the benefit of industrial
or other end-users in West Virginia, the acquisition or
construction of which is financed, in whole or in part, by the West
Virginia public energy authority or the acquisition or construction
of which is financed, in whole or in part, from funds made
available by grant, loan or any other source 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 West Virginia public energy authority or the
acquisition or construction of which is financed, in whole or in part, from funds made available by grant, loan or any other source
by, or through, the authority as provided in this article,
including all pipelines, buildings and facilities which the
authority deems necessary for the operation of the project,
together with all property, rights, easements and interests which
may be required for the operation of the project.
(11)(7) "Owner" includes all persons having any title or
interest in any property rights, easements and interests authorized
to be acquired by this article.
(12)(8) "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; public service district; partnership;
trust; estate; person or individual; and group of persons or
individuals acting individually or as a group or any other legal
entity whatever.
(13) "Pipeline" or "pipelines" means any actual lines of pipe
for the transmission and distribution of natural gas together with
all appurtenances, facilities, structures, equipment, machinery and
other items related to the transmission and distribution of gas
through lines of pipe.
(9) "Project" or "projects" means a dam with an associated
reservoir or water impoundment acquired or constructed for the
primary purpose of controlling flood waters, together with a
hydroelectric power generation facility and electric transmission
lines associated therewith acquired or constructed in conjunction with such dam, reservoir or impoundment, together with real and
personal property acquired and costs incurred, incidental to, or
necessary or desirable for, such dam, reservoir or impoundment,
hydroelectric power generation facility and associated electric
transmission lines;
(10) "Real property" means lands, structures, franchises and
interests in land, including lands under water and riparian rights,
and any and all other things and rights usually included within the
term, and includes also any and all other incorporeal hereditaments
and every estate, interest or right, legal or equitable, including
terms for years and liens thereon by way of judgements, mortgages
or otherwise, and also all claims for damages for the real estate;
and
(14)(11) "Revenue" means any money or thing of value collected
by, or paid to, the West Virginia public energy authority as rents,
loan payments, installment payments, or other proceeds of sale,
rates, user fees, service charges or other charges for the electric
power produced by, for the use of, for the lease, the lease with an
option to purchase or the purchase of, or in connection with any
electric power project; or as rent, use, transportation or service
fee or charge for use of, or in connection with, any natural gas
transmission project; a project, leases, leases with an option to
purchase, or other money or property from any source which is
received and may be expended for or pledged as revenues pursuant to
this article.
§5D-1-5. Powers, duties and responsibilities of authority
generally; termination of certain powers.
The West Virginia public energy authority is hereby granted, has and may exercise all powers necessary or appropriate to carry
out and effectuate its corporate purpose. The authority shall have
the power and capacity to may:
(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 legislative rules to implement and make
effective its powers and duties, such the rules and regulations to
be promulgated proposed in accordance with the provisions of
chapter twenty-nine-a of this code.
(2) Adopt and use an official seal and alter the same it at
pleasure.
(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 this article. Any actions against the
authority shall be brought in the circuit court of Kanawha County.
(5) Foster, encourage and promote the mineral development
industry.
(6) Represent the state with respect to national initiatives
concerning the mineral development industry, and international
marketing activities affecting the mineral development industry.
(7) Engage in strategic planning to enable the state to cope
with changes affecting or which may affect the mineral development
industry.
(8)(5) Acquire, whether by purchase, construction, gift,
lease, lease-purchase or otherwise, any electric power project or
natural gas transmission project. In the event that an electric power project to be constructed pursuant to this article is
designed to utilize coal wastes for the generation of electricity
or the production of other energy, such the project shall also be
capable of using coal as its primary energy input: Provided, That
it shall be is demonstrated to the authority's satisfaction that
quantities of coal wastes exist in amounts sufficient to provide
energy input for such project for the term of the bonds or notes
issued by the authority to finance the project and are accessible
to the project. Such project shall be planned and coordinated in
cooperation with the department f environmental protection,
including compliance with the provisions of article fourteen,
chapter twenty-two of this code relating to dam safety, the office
of emergency services, the hazard mitigation council established by
executive order number 18-03, the soil conservation district in
which the project is situate, and such other governmental agencies
as necessary.
(9)(6) Lease, lease with an option by the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of, to
persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for
such rentals or amounts and upon such terms and conditions as the
public energy authority board may deem considers advisable.
(10)(7) Finance one or more electric power projects or natural
gas transmission projects by making secured loans to persons other
than governmental agencies to provide funds for the acquisition, by
purchase, construction or otherwise, of any such project or
projects.
(11)(8) Issue bonds for the purpose of financing the cost of acquisition and construction of one or more electric power projects
or natural gas transmission projects or any additions, extensions
or improvements thereto which will be sold, leased with an option
by the lessee to purchase, leased or otherwise disposed of to
persons other than governmental agencies or for the purpose of
loaning the proceeds thereof to persons other than governmental
agencies for the acquisition and construction of said the projects
or both. Such The bonds shall be issued and the payment of such
the bonds secured in the manner provided by the applicable
provisions of sections seven, eight, nine, ten, eleven, twelve,
thirteen and seventeen, article two-c, chapter thirteen of this
code: Provided, That the principal and interest on such the bonds
shall be payable out of the revenues derived from the lease, lease
with an option by the lessee to purchase, sale or other disposition
of or from loan payments in connection with the electric power
project or natural gas transmission project for which the bonds are
issued, or any other revenue derived from such electric power
project or natural gas transmission the project.
(12)(9) In the event that the electric power project or
natural gas transmission If the project is to be owned by a
governmental agency, apply to the economic development authority
for the issuance of bonds payable solely from revenues as provided
in article fifteen, chapter thirty-one of this code: Provided,
That the economic development authority shall may not issue any
such bonds except by an act of general law: Provided, however,
That the authority shall require that in the construction of any
such project, prevailing wages shall be paid as part of a project
specific agreement which also takes into account terms and conditions contained in the West Virginia - Ohio valley market
retention and recovery agreement or a comparable agreement.
(13)(10) 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.
(14)(11) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems considers
proper, or by the exercise of the right of eminent domain in the
manner provided in chapter fifty-four of this code, such any real
property or parts thereof or rights therein, rights-of-way,
property, rights, easements and interests it deems considers
necessary for carrying out the provisions of this article, and
compensation shall be paid for public or private lands so taken;
and the authority may sell any of the real property or parts
thereof or rights therein, rights-of-way, property, rights,
easements and interests acquired hereunder in such the manner and
upon such terms and conditions as the authority deems considers
proper: Provided, That if the authority determines that land or an
interest therein acquired by the authority through the exercise of
the power of eminent domain for the purpose of this article is no
longer necessary or useful for such purposes, and if the authority
desires to sell such the land or interest, therein the authority
shall first offer to sell such the land or interest to the owner or
owners from whom it was acquired, at a price equal to its fair
market value: Provided, however, That if the prior owner or owners
shall decline declines to reacquire the land or interest therein,
the authority shall be authorized to may dispose of such the
property by direct sale, auction, or competitive bidding. In no case shall such Land or an interest therein in land acquired under
this subdivision may not be sold for less than its fair market
value. This article does not authorize the authority to take or
disturb property or facilities belonging to any public utility or
to a common carrier, which property or facilities are required for
the proper and convenient operation of such the public utility or
common carrier, except for the acquisition of easements or
rights-of-way which will not unreasonably interfere with the
operation of the property or facilities of such public utility or
common carrier, and in the event of the if there is a taking or
disturbance of property or facilities of public utility or common
carrier, provision shall be made for the restoration, relocation or
duplication of such the property or facilities elsewhere at the
sole cost of the authority.
The term "real property" as used in this article is defined to
include lands, structures, franchises and interests in land,
including lands under water and riparian rights, and any and all
other things and rights usually included within the said that term,
and includes also any and all interests in such the property less
than full title, such as easements, rights-of-way, uses, leases,
licenses and all other incorporeal hereditaments and every estate,
interest or right, legal or equitable, including terms for years
and liens thereon by way of judgments, mortgages or otherwise, and
also all claims for damages for such the real estate.
For the purposes of this section article "fair market value"
shall be determined by an appraisal made by an independent person
or firm chosen by the authority. The appraisal shall be performed
using the principles contained in the "Uniform Appraisal Standards for Federal Land Acquisitions" published under the auspices of the
Interagency Land Acquisition Conference, United States Government
Printing Office, 1972.
(15)(12) 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: Provided, That if
any electric power project or natural gas transmission project is
to be constructed by a person other than a governmental agency, and
with whom the authority has contracted to lease, sell or finance
such the project upon its completion, then the authority shall may
not be required to comply with the provisions of article
twenty-two, chapter five of this code requiring the solicitation of
competitive bids for the construction of such a the project.
(16)(13) Employ managers, superintendents and other employees,
and retain or contract with consulting engineers, financial
consultants, accountants, 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 shall be
payable solely from the proceeds of bonds issued by the economic
development authority, from the proceeds of bonds issued by or loan
payments, lease payments or other payments received by the
authority, from revenues and from funds appropriated for such
purpose by the Legislature.
(17)(14) Receive and accept from any federal agency, or any
other source, grants for or in aid of the construction of any
project or for research and development with respect to electric
power projects, natural gas transmission projects or other energy projects a project, and receive and accept aid or contribution from
any source of money, property, labor or other things of value to be
held, used and applied only for the purpose for which such the
grants and contributions are made.
(18)(15) Purchase property coverage and liability insurance
for any electric power project or natural gas transmission project
or other energy 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 which may be provided for under
a resolution authorizing the issuance of bonds or in any trust
agreement securing the same this.
(19) Charge, alter and collect transportation fees and other
charges for the use or services of any natural gas transmission
project as provided in this article.
(20)(16) Charge and collect fees or other charges from any
energy project undertaken as a result of this article.
(21)(17) When the electric power project a project is owned
and operated by the authority, charge reasonable fees in connection
with the making and providing of electric power and the sale
thereof to corporations, states, municipalities or other entities
in the furtherance of the purposes of this article sell the
electric power generated by the project solely in the wholesale
market at reasonable rates.
(22) Purchase and sell electricity or other energy produced by
an electric power project or flood mitigation dam project with
small electric power generator capacity in and out of the state of West Virginia.
(23)(18) Enter into wheeling contracts Arrange for the
transmission of electric power over the authority's or another
party's person's lines.
(24)(19) Make and enter into contracts for the construction of
a project facility and joint ownership with another a public
utility, and the provisions of this article shall may not constrain
the authority from participating as a joint partner. therein
(25)(20) Make and enter into joint ownership agreements.
(26)(21) 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 issued by the economic
development authority pursuant to the provisions of article
fifteen, chapter thirty-one of this code or bonds issued by the
authority.
(27) Broker the purchase of natural gas for resale to
end-users: Provided, That whenever there are local distribution
company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by
the public service commission of West Virginia.
(28)(22) Engage in market research, feasibility studies,
commercial research, and other studies and research pertaining to
electric power projects and natural gas transmission projects, or
any other functions of the authority pursuant to this article.
(29)(23) Enter upon any lands, waters and premises in the
state for the purpose of making surveys and examinations as it may
deem considers necessary or convenient for the purpose of this
article, and such entry shall may not be deemed considered a trespass, nor shall may an entry for such these purposes be deemed
considered an entry under any condemnation proceedings which may be
then pending, and the authority shall make reimbursement for any
actual damages resulting to such the lands, waters and premises as
a result of such these activities.
(30)(24) Participate in any reorganization proceeding pending
pursuant to the United States Code (being the act of Congress
establishing a uniform system of bankruptcy throughout the United
States, as amended) or any receivership proceeding in a state or
federal court for the reorganization or liquidation of a
responsible buyer or responsible tenant. The authority may file
its claim against any such responsible buyer or responsible tenant
in any of the foregoing proceedings, vote upon any question pending
therein, which requires the approval of the creditors participating
in any reorganization proceeding or receivership, exchange any
evidence of such indebtedness for any property, security or
evidence of indebtedness offered as a part of the reorganization of
such the responsible buyer or responsible tenant or of any entity
formed to acquire the assets thereof and may compromise or reduce
the amount of any indebtedness owing to it as a part of any such
reorganization.
(31)(25) Make or enter into management contracts with a second
party or parties to operate any electric power project or any gas
transmission project and associated facilities, flood mitigation
dam project with small electric power generator capacity or other
related energy project, either during construction or permanent
operation.
(32)(26) Do all acts necessary and proper to carry out the powers expressly granted to the authority in this article.
(33) Nothing herein shall be construed to permit the
transportation of gas produced outside of this state through a
natural gas transmission project.
(34)(27) The authority shall, After consultation with other
agencies of state government having environmental regulatory
functions, promulgate propose legislative rules pursuant to chapter
twenty-nine-a of this code, to establish standards and principles
to be applied to all projects in assessing the effects of projects
on the environment: Provided, That when a proposed project
requires an environmental impact statement pursuant to the National
Environmental Policy Act of 1969, a copy of the environmental
impact statement shall be filed with the authority and be made
available prior to any final decision or final approval of any
project and prior to the conducting of any public hearings
regarding the project, and in any such case, no assessment pursuant
to the legislative rule need be made.
§5D-1-5b. Public hearing before final consideration of bond issue
or exercise of right of eminent domain.
(a) Prior to any final decision of the board to take action
with respect to the issuance of revenue bonds or to authorize the
exercise of the right of eminent domain with respect to any
electric power or natural gas transmission project, the authority
shall:
(1) Prepare and reduce to writing the nature of the proposed
project, a summary of the data supporting the board's
determination and a description and location identification of the
proposed real property, right of way, or easement to be acquired. The written statement under this section and the environmental
impact statement or assessment required pursuant to section five of
this article shall be available for public inspection at the office
of the county clerk at the county courthouse of each county in
which the project is located during the two successive weeks before
the date of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable
time and place within at least one county in which the project is
located to allow interested members of the public to attend the
hearing without undue hardship. Members of the public may be
present, submit statements and testimony and question the
authority's representative appointed pursuant to this section;
(3) Not less than thirty days prior to such public hearing,
provide notice to all members of the Legislature, unless otherwise
notified by a member that such member does not desire such notice,
to the county commission of each county within which the project is
located and to the municipal council of each municipality in said
county;
(4) Cause to be published a notice of the required public
hearing. The notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
each county in which the project is located. The public hearing
shall be held no earlier than the fourteenth successive day and no
later than the twenty-first successive day following the first
publication of the notice. The notice shall contain the time and
place of the public hearing along with a brief description of the
project and its proposed location;
(5) Cause a copy of the required notice to be posted at the
county seat of each county within which the project is located for
members of the public to observe. Such notice shall remain posted
for two successive weeks prior to the date of the public hearing;
(6) Appoint a representative of the authority who shall
conduct the required public hearing. The representative of the
authority shall make a report of the public hearing available for
inspection by the public or, upon written request of any interested
person, provide a written copy thereof and to all individuals
previously receiving written notice of the hearing within thirty
days following the public hearing; and
(7) The representative of the authority conducting the public
hearing shall make the results of the hearing available to the
board for its consideration prior to the board making decisions
regarding the proposed project.
(b) No final action of the board with respect to the issuance
of revenue bonds or authorizing the exercise of the right of
eminent domain with respect to a proposed project may be made
before the thirtieth successive day following the public hearing
required by this section, but in no event shall final action of the
board be made prior to fifteen days after the report of the public
hearings are made available to the public in general.
§5D-1-6. Authority may construct, finance, lease, sell, maintain,
etc.,
electric power projects and transmission
facilities projects.
To accomplish the public policies and purposes and to meet the
responsibility of the state as set forth in this article, the West
Virginia public energy authority may initiate, acquire, construct, maintain, lease, lease with an option for the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of,
repair and operate electric power generating projects and
transmission facilities, projects. and The authority may issue
bonds for the purpose of financing the cost of acquisition and
construction of electric power projects and transmission facilities
which projects that will be sold, leased, leased with an option by
the lessee to purchase or otherwise disposed of to person other
than governmental agencies or for the purpose of loaning the
proceeds thereof to persons other than governmental agencies for
the acquisition and construction of said such projects or both.; or
if the electric power If a project is to be owned by a governmental
agency request the issuance of bonds by the economic development
authority, payable solely from revenues, to pay the cost or finance
in whole or in part such projects: Provided, That the economic
development authority shall not be authorized to issue any such
bonds except by an act of general law, as provided in article
fifteen, chapter thirty-one of this code. An electric power , and
a project shall not be undertaken unless it has been determined by
the authority that the project will be consistent with the purposes
set out in this article. Any resolution providing for acquiring or
constructing such projects shall include a finding by the authority
that such determinations have been made.
The authority is authorized and directed:
(1) To Cooperate with the appropriate agencies and officials
of the United States government to the end that any electric power
project shall be so planned and constructed as to be adaptable to
the plans of the United States.
(2) To Apply to the appropriate agencies and officials of the
United States government including the federal energy regulatory
commission for such licenses, permits or approval of its plans or
projects as it may deem necessary or advisable, and in its
discretion and upon such terms and conditions as it may deem
appropriate, to accept such licenses, permits or approvals as may
be tendered to it by such agencies or officials and such federal or
other public or governmental assistance as is now or may hereafter
become available to it; and to enter into contracts with such
agencies or officials relating to the construction or operation of
any project authorized by this article.
(3) To Proceed with the physical construction or completion of
any project authorized by this article, including the erection of
the necessary power houses, transmission lines and other
facilities, instrumentalities and things necessary or convenient to
that end, and including also the erection of such transmission
lines as may be necessary to conduct the electricity; and including
also the acquisition or construction of transmission lines or
contracting for the use of such electric transmission lines, that
are available or which may be made available, to conduct
electricity to such point or points at which the electricity is
sold by the authority to any person, corporation or association,
public or private it is made available for sale in the wholesale
market.
(4) To cooperate with and, when the board deems considers it
feasible and advisable, to enter into contractual arrangements with
utility companies.
(5) To purchase, when available, coal, natural gas or the by-products of coal produced in this state as the fuel source for
all electric power projects.
§5D-1-12. Maintenance, operation and repair of projects.
Each electric power project, each natural gas transmission
project or other energy project owned and operated by the
authority, when constructed and placed in operation, shall be
maintained and kept in good condition and repair by the authority.
Each such project owned and operated by the authority shall be
operated by such operating employees as the authority employs or
pursuant to a contract or lease with a governmental agency or
other person. All public or private property damaged or destroyed
in carrying out the provisions of this article and in the exercise
of the powers granted hereunder with regard to any a project shall
be restored or repaired and placed in its original condition, as
nearly as practicable, or adequate compensation made therefor out
of funds provided in accordance with the provisions of this
article.
§5D-1-14. Exemption from taxation.
The exercise of the powers granted to the authority by this
article will be in all respects for the benefit of the people of
the state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their residential,
agricultural, recreational, economic, commercial and industrial
opportunities and is a public purpose. As the ownership, operation
and maintenance of natural gas transmission projects and electric
power projects and other energy projects owned and/or operated by
the authority or another governmental agency will constitute the
performance of essential governmental functions, the authority or other governmental agency shall not be is not required to pay any
taxes or assessments upon any such project or upon any property
acquired or used by the authority or upon the income therefrom.
Natural gas transmission projects and electric power projects and
other energy Projects owned or leased by persons other than the
authority or a governmental agencies agency shall be are subject to
any taxes or assessments upon any such project or projects as
provided by law. Bonds issued by either the West Virginia economic
development authority or the authority and all interest and income
thereon shall be are exempt from all taxation by this state, or any
county, municipality, political subdivision or agency thereof,
except inheritance taxes: Provided, That the authority shall
require a fee in substitution of any ad valorem tax exemption to be
negotiated by said authority.
§5D-1-15. Acquisition of property by authority -- Acquisition by
purchase, lease or eminent domain; governmental
agencies authorized to convey, etc., property; sale
of property by authority.
(a) The authority may acquire by purchase, or otherwise, as
authorized by this article whenever it deems such acquisition
expedient, any land, property, rights, rights-of-way, franchises,
easements, leases and other interests in lands it deems necessary
or convenient for the construction and operation of any natural gas
transmission project, any electric power project, or other energy
project.
(b) Any contrary provision of law notwithstanding, all
governmental agencies, notwithstanding any contrary provision of
law, may lease, lend, grant or convey to the authority, at its request, upon such terms as the proper authorities of such
governmental agencies deem consider reasonable and fair, any real
property or interest therein, including improvements thereto or
personal property which is necessary or convenient to the
effectuation of the authorized purposes of the authority, including
public roads and other real property or interests therein,
including improvements thereto or personal property already devoted
to public use.
(c) The authority may sell any land, property, rights,
rights-of-way, franchises, easements, leases and other interests in
land acquired under the provisions of this section in such the
manner and upon such terms and conditions as it deems proper.
§5D-1-16. Authority not public utility and not subject to full
jurisdiction of public service commission; authority
subject to provisions concerning gas pipeline safety.
Notwithstanding anything contained in this article to the
contrary, and specifically notwithstanding Any provision of this
article to the contrary notwithstanding, including any activities
of the authority which shall constitute that constitutes a public
service, the authority shall not be considered or deemed is not a
public utility in any respect for purposes of chapter twenty-four
of this code, and neither the authority, nor any of its activities
or the activities of its agents or employees, nor any project
constructed, maintained or owned and operated by the authority, nor
any other matters pertaining to the authority, shall be is subject
to the jurisdiction of the public service commission. of West
Virginia, either with respect to the powers of said public service
commission generally, or with respect to its power over rates, or otherwise: Provided, That the authority and all natural gas
transmission projects which it constructs, maintains or operates
shall nevertheless be subject to the provisions of chapter twenty-
four-b of this code concerning gas pipeline safety.
NOTE: The purpose of this bill is to reconstitute the Public
Energy Authority which is scheduled to terminate July 1, 2004. It
also authorizes issuance and sale of bonds, exercise of eminent
domain and long-term contracts for sale of electric power from the
construction of flood mitigation dams with small electric power
generator capacity.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
