CS/HB 691

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

CODING: Words stricken are deletions; words underlined are additions.