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.