Florida Senate - 2009 SB 1192
By Senator Richter
37-01082-09 20091192__
1 A bill to be entitled
2 An act relating to state oversight of utility services
3 provided by intergovernmental authorities; amending s.
4 163.01, F.S.; deleting a provision that exempts
5 certain legal entities from the jurisdiction of the
6 Public Service Commission; amending s. 288.0655, F.S.;
7 conforming a cross-reference; amending s. 367.021,
8 F.S.; defining “intergovernmental authority”; revising
9 definitions; amending s. 367.022, F.S.; exempting
10 certain water and wastewater systems from regulation
11 by the commission; amending ss. 367.071 and 367.145,
12 F.S.; exempting an intergovernmental authority from
13 certain fees; amending s. 367.171, F.S.; deleting the
14 exception of certain utility systems subject to
15 interlocal utility agreements from the exclusive
16 jurisdiction of the commission; amending s. 624.105,
17 F.S.; conforming a cross-reference; providing an
18 effective date.
19
20 Be It Enacted by the Legislature of the State of Florida:
21
22 Section 1. Paragraph (g) of subsection (7) of section
23 163.01, Florida Statutes, is amended to read:
24 163.01 Florida Interlocal Cooperation Act of 1969.—
25 (7)
26 (g)1. Notwithstanding any other provisions of this section,
27 any separate legal entity created under this section, the
28 membership of which is limited to municipalities and counties of
29 the state, and which may include a special district in addition
30 to a municipality or county or both, may acquire, own,
31 construct, improve, operate, and manage public facilities, or
32 finance facilities on behalf of any person, relating to a
33 governmental function or purpose, including, but not limited to,
34 wastewater facilities, water or alternative water supply
35 facilities, and water reuse facilities, which may serve
36 populations within or outside of the members of the entity.
37 Notwithstanding s. 367.171(7), any separate legal entity created
38 under this paragraph is not subject to Public Service Commission
39 jurisdiction. The separate legal entity may not provide utility
40 services within the service area of an existing utility system
41 unless it has received the consent of the utility.
42 2. For purposes of this paragraph, the term:
43 a. “Host government” means the governing body of the
44 county, if the largest number of equivalent residential
45 connections currently served by a system of the utility is
46 located in the unincorporated area, or the governing body of a
47 municipality, if the largest number of equivalent residential
48 connections currently served by a system of the utility is
49 located within that municipality's boundaries.
50 b. “Separate legal entity” means any entity created by
51 interlocal agreement the membership of which is limited to two
52 or more special districts, municipalities, or counties of the
53 state, but which entity is legally separate and apart from any
54 of its member governments.
55 c. “System” means a water or wastewater facility or group
56 of such facilities owned by one entity or affiliate entities.
57 d. “Utility” means a water or wastewater utility and
58 includes every person, separate legal entity, lessee, trustee,
59 or receiver owning, operating, managing, or controlling a
60 system, or proposing construction of a system, who is providing,
61 or proposes to provide, water or wastewater service to the
62 public for compensation.
63 3. A separate legal entity that seeks to acquire any
64 utility shall notify the host government in writing by certified
65 mail about the contemplated acquisition not less than 30 days
66 before any proposed transfer of ownership, use, or possession of
67 any utility assets by such separate legal entity. The potential
68 acquisition notice shall be provided to the legislative head of
69 the governing body of the host government and to its chief
70 administrative officer and shall provide the name and address of
71 a contact person for the separate legal entity and information
72 identified in s. 367.071(4)(a) concerning the contemplated
73 acquisition.
74 4.a. Within 30 days following receipt of the notice, the
75 host government may adopt a resolution to become a member of the
76 separate legal entity, adopt a resolution to approve the utility
77 acquisition, or adopt a resolution to prohibit the utility
78 acquisition by the separate legal entity if the host government
79 determines that the proposed acquisition is not in the public
80 interest. A resolution adopted by the host government which
81 prohibits the acquisition may include conditions that would make
82 the proposal acceptable to the host government.
83 b. If a host government adopts a membership resolution, the
84 separate legal entity shall accept the host government as a
85 member on the same basis as its existing members before any
86 transfer of ownership, use, or possession of the utility or the
87 utility facilities. If a host government adopts a resolution to
88 approve the utility acquisition, the separate legal entity may
89 complete the acquisition. If a host government adopts a
90 prohibition resolution, the separate legal entity may not
91 acquire the utility within that host government's territory
92 without the specific consent of the host government by future
93 resolution. If a host government does not adopt a prohibition
94 resolution or an approval resolution, the separate legal entity
95 may proceed to acquire the utility after the 30-day notice
96 period without further notice.
97 5. After the acquisition or construction of any utility
98 systems by a separate legal entity created under this paragraph,
99 revenues or any other income may not be transferred or paid to a
100 member of a separate legal entity, or to any other special
101 district, county, or municipality, from user fees or other
102 charges or revenues generated from customers that are not
103 physically located within the jurisdictional or service delivery
104 boundaries of the member, special district, county, or
105 municipality receiving the transfer or payment. Any transfer or
106 payment to a member, special district, or other local government
107 must be solely from user fees or other charges or revenues
108 generated from customers that are physically located within the
109 jurisdictional or service delivery boundaries of the member,
110 special district, or local government receiving the transfer of
111 payment.
112 6. This section is an alternative provision otherwise
113 provided by law as authorized in s. 4, Art. VIII of the State
114 Constitution for any transfer of power as a result of an
115 acquisition of a utility by a separate legal entity from a
116 municipality, county, or special district.
117 7. The entity may finance or refinance the acquisition,
118 construction, expansion, and improvement of such facilities
119 relating to a governmental function or purpose through the
120 issuance of its bonds, notes, or other obligations under this
121 section or as otherwise authorized by law. The entity has all
122 the powers provided by the interlocal agreement under which it
123 is created or which are necessary to finance, own, operate, or
124 manage the public facility, including, without limitation, the
125 power to establish rates, charges, and fees for products or
126 services provided by it, the power to levy special assessments,
127 the power to sell or finance all or a portion of such facility,
128 and the power to contract with a public or private entity to
129 manage and operate such facilities or to provide or receive
130 facilities, services, or products. Except as may be limited by
131 the interlocal agreement under which the entity is created, all
132 of the privileges, benefits, powers, and terms of s. 125.01,
133 relating to counties, and s. 166.021, relating to
134 municipalities, are fully applicable to the entity. However,
135 neither the entity nor any of its members on behalf of the
136 entity may exercise the power of eminent domain over the
137 facilities or property of any existing water or wastewater plant
138 utility system, nor may the entity acquire title to any water or
139 wastewater plant utility facilities, other facilities, or
140 property which was acquired by the use of eminent domain after
141 the effective date of this act. Bonds, notes, and other
142 obligations issued by the entity are issued on behalf of the
143 public agencies that are members of the entity.
144 8. Any entity created under this section may also issue
145 bond anticipation notes in connection with the authorization,
146 issuance, and sale of bonds. The bonds may be issued as serial
147 bonds or as term bonds or both. Any entity may issue capital
148 appreciation bonds or variable rate bonds. Any bonds, notes, or
149 other obligations must be authorized by resolution of the
150 governing body of the entity and bear the date or dates; mature
151 at the time or times, not exceeding 40 years from their
152 respective dates; bear interest at the rate or rates; be payable
153 at the time or times; be in the denomination; be in the form;
154 carry the registration privileges; be executed in the manner; be
155 payable from the sources and in the medium or payment and at the
156 place; and be subject to the terms of redemption, including
157 redemption prior to maturity, as the resolution may provide. If
158 any officer whose signature, or a facsimile of whose signature,
159 appears on any bonds, notes, or other obligations ceases to be
160 an officer before the delivery of the bonds, notes, or other
161 obligations, the signature or facsimile is valid and sufficient
162 for all purposes as if he or she had remained in office until
163 the delivery. The bonds, notes, or other obligations may be sold
164 at public or private sale for such price as the governing body
165 of the entity shall determine. Pending preparation of the
166 definitive bonds, the entity may issue interim certificates,
167 which shall be exchanged for the definitive bonds. The bonds may
168 be secured by a form of credit enhancement, if any, as the
169 entity deems appropriate. The bonds may be secured by an
170 indenture of trust or trust agreement. In addition, the
171 governing body of the legal entity may delegate, to an officer,
172 official, or agent of the legal entity as the governing body of
173 the legal entity may select, the power to determine the time;
174 manner of sale, public or private; maturities; rate of interest,
175 which may be fixed or may vary at the time and in accordance
176 with a specified formula or method of determination; and other
177 terms and conditions as may be deemed appropriate by the
178 officer, official, or agent so designated by the governing body
179 of the legal entity. However, the amount and maturity of the
180 bonds, notes, or other obligations and the interest rate of the
181 bonds, notes, or other obligations must be within the limits
182 prescribed by the governing body of the legal entity and its
183 resolution delegating to an officer, official, or agent the
184 power to authorize the issuance and sale of the bonds, notes, or
185 other obligations.
186 9. Bonds, notes, or other obligations issued under this
187 paragraph may be validated as provided in chapter 75. The
188 complaint in any action to validate the bonds, notes, or other
189 obligations must be filed only in the Circuit Court for Leon
190 County. The notice required to be published by s. 75.06 must be
191 published in Leon County and in each county that is a member of
192 the entity issuing the bonds, notes, or other obligations, or in
193 which a member of the entity is located, and the complaint and
194 order of the circuit court must be served only on the State
195 Attorney of the Second Judicial Circuit and on the state
196 attorney of each circuit in each county that is a member of the
197 entity issuing the bonds, notes, or other obligations or in
198 which a member of the entity is located. Section 75.04(2) does
199 not apply to a complaint for validation brought by the legal
200 entity.
201 10. The accomplishment of the authorized purposes of a
202 legal entity created under this paragraph is in all respects for
203 the benefit of the people of the state, for the increase of
204 their commerce and prosperity, and for the improvement of their
205 health and living conditions. Since the legal entity will
206 perform essential governmental functions in accomplishing its
207 purposes, the legal entity is not required to pay any taxes or
208 assessments of any kind whatsoever upon any property acquired or
209 used by it for such purposes or upon any revenues at any time
210 received by it. The bonds, notes, and other obligations of an
211 entity, their transfer, and the income therefrom, including any
212 profits made on the sale thereof, are at all times free from
213 taxation of any kind by the state or by any political
214 subdivision or other agency or instrumentality thereof. The
215 exemption granted in this subparagraph is not applicable to any
216 tax imposed by chapter 220 on interest, income, or profits on
217 debt obligations owned by corporations.
218 Section 2. Paragraph (b) of subsection (2) of section
219 288.0655, Florida Statutes, is amended to read:
220 288.0655 Rural Infrastructure Fund.—
221 (2)
222 (b) To facilitate access of rural communities and rural
223 areas of critical economic concern as defined by the Rural
224 Economic Development Initiative to infrastructure funding
225 programs of the Federal Government, such as those offered by the
226 United States Department of Agriculture and the United States
227 Department of Commerce, and state programs, including those
228 offered by Rural Economic Development Initiative agencies, and
229 to facilitate local government or private infrastructure funding
230 efforts, the office may award grants for up to 30 percent of the
231 total infrastructure project cost. Eligible projects must be
232 related to specific job-creation or job-retention opportunities.
233 Eligible projects may also include improving any inadequate
234 infrastructure that has resulted in regulatory action that
235 prohibits economic or community growth or reducing the costs to
236 community users of proposed infrastructure improvements that
237 exceed such costs in comparable communities. Eligible uses of
238 funds shall include improvements to public infrastructure for
239 industrial or commercial sites and upgrades to or development of
240 public tourism infrastructure. Authorized infrastructure may
241 include the following public or public-private partnership
242 facilities: storm water systems; telecommunications facilities;
243 roads or other remedies to transportation impediments; nature
244 based tourism facilities; or other physical requirements
245 necessary to facilitate tourism, trade, and economic development
246 activities in the community. Authorized infrastructure may also
247 include publicly owned self-powered nature-based tourism
248 facilities and additions to the distribution facilities of the
249 existing natural gas utility as defined in s. 366.04(3)(c), the
250 existing electric utility as defined in s. 366.02, or the
251 existing water or wastewater utility as defined in s.
252 367.021(13) s. 367.021(12), or any other existing water or
253 wastewater facility, which owns a gas or electric distribution
254 system or a water or wastewater system in this state where:
255 1. A contribution-in-aid of construction is required to
256 serve public or public-private partnership facilities under the
257 tariffs of any natural gas, electric, water, or wastewater
258 utility as defined herein; and
259 2. Such utilities as defined herein are willing and able to
260 provide such service.
261 Section 3. Subsections (7) and (12) of section 367.021,
262 Florida Statutes, are amended, subsections (9) through (13) of
263 that section are renumbered as subsections (10) through (14),
264 respectively, and a new subsection (9) is added to that section,
265 to read:
266 367.021 Definitions.—As used in this chapter, the following
267 words or terms shall have the meanings indicated:
268 (7) “Governmental authority” means a political subdivision,
269 as defined by s. 1.01(8), a regional water supply authority
270 created pursuant to s. 373.1962, or a nonprofit corporation
271 formed for the purpose of acting on behalf of a political
272 subdivision with respect to a water or wastewater facility. The
273 term does not include an intergovernmental authority.
274 (9) “Intergovernmental authority” means a separate legal
275 entity created by interlocal agreement under s. 163.01(7)(g).
276 (13)(12) “Utility” means a water or wastewater utility and,
277 except as provided in s. 367.022, the term includes every
278 person, lessee, trustee, or receiver, or intergovernmental
279 authority owning, operating, managing, or controlling a system,
280 or proposing construction of a system, who is providing, or
281 proposes to provide, water or wastewater service to the public
282 for compensation.
283 Section 4. Subsection (13) is added to section 367.022,
284 Florida Statutes, to read:
285 367.022 Exemptions.—The following are not subject to
286 regulation by the commission as a utility nor are they subject
287 to the provisions of this chapter, except as expressly provided:
288 (13) A system owned, operated, managed, or controlled by an
289 intergovernmental authority within the first 48 months after the
290 authority obtains ownership, operation, management, or control
291 of the system.
292 Section 5. Subsection (3) of section 367.071, Florida
293 Statutes, is amended to read:
294 367.071 Sale, assignment, or transfer of certificate of
295 authorization, facilities, or control.—
296 (3) An application for proposed sale, assignment, or
297 transfer shall be accompanied by a fee as provided by s.
298 367.145. A No fee is not required to be paid by a governmental
299 authority or intergovernmental authority that is the buyer,
300 assignee, or transferee.
301 Section 6. Paragraph (a) of subsection (1) of section
302 367.145, Florida Statutes, is amended to read:
303 367.145 Regulatory assessment and application fees.—
304 (1) The commission shall set by rule a regulatory
305 assessment fee that each utility must pay in accordance with s.
306 350.113(3); however, each small utility with annual revenues of
307 less than $200,000 shall pay once a year in conjunction with
308 filing its annual financial report required by commission rule.
309 Notwithstanding any provision of law to the contrary, the amount
310 of the regulatory assessment fee shall not exceed 4.5 percent of
311 the gross revenues of the utility derived from intrastate
312 business, excluding sales for resale made to a regulated
313 company.
314 (a) A governmental authority or intergovernmental authority
315 to which ownership or control of a utility is transferred is not
316 liable for any fees owed the commission by the utility as of the
317 date of transfer. However, whenever a purchase at wholesale is
318 made of any water or wastewater service and a fee is paid or
319 payable thereon by the selling utility and the utility
320 purchasing such water or wastewater service resells the same
321 directly to customers, the purchasing utility is entitled to,
322 and must receive, credit on such fees as may be due by it under
323 this section to the extent of the fee paid or payable upon such
324 water or wastewater service by the utility from which such
325 purchase was made. All such fee payments and penalties must be
326 deposited in accordance with s. 350.113.
327 Section 7. Subsection (7) of section 367.171, Florida
328 Statutes, is amended to read:
329 367.171 Effectiveness of this chapter.—
330 (7) Notwithstanding any provision of anything in this
331 section to the contrary, the commission has shall have exclusive
332 jurisdiction over a all utility system systems whose service
333 transverses county boundaries, whether the counties involved are
334 jurisdictional or nonjurisdictional, except for utility systems
335 that are subject to, and remain subject to, interlocal utility
336 agreements in effect as of January 1, 1991, that create a single
337 governmental authority to regulate the utility systems whose
338 service transverses county boundaries, provided that no such
339 interlocal agreement shall divest commission jurisdiction over
340 such systems, any portion of which provides service within a
341 county that is subject to commission jurisdiction under this
342 section.
343 Section 8. Section 624.105, Florida Statutes, is amended to
344 read:
345 624.105 Waiver of customer liability.—Any regulated company
346 as defined in s. 350.111, any electric utility as defined in s.
347 366.02(2), any utility as defined in s. 367.021(13) s.
348 367.021(12) or s. 367.022(2) and (7), and any provider of
349 communications services as defined in s. 202.11(2) may charge
350 for and include an optional waiver of liability provision in
351 their customer contracts under which the entity agrees to waive
352 all or a portion of the customer's liability for service from
353 the entity for a defined period in the event of the customer's
354 call to active military service, death, disability, involuntary
355 unemployment, qualification for family leave, or similar
356 qualifying event or condition. Such provisions may not be
357 effective in the customer's contract with the entity unless
358 affirmatively elected by the customer. No such provision shall
359 constitute insurance so long as the provision is a contract
360 between the entity and its customer.
361 Section 9. This act shall take effect July 1, 2009.