Florida Senate - 2014                        COMMITTEE AMENDMENT
       Bill No. SB 1050
       
       
       
       
       
       
                                Ì714954?Î714954                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/01/2014           .                                
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       (Bean) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 159.8105, Florida Statutes, is created
    6  to read:
    7         159.8105 Allocation of bonds for water and wastewater
    8  infrastructure projects.—The division shall review the
    9  allocation of private activity bonds to determine the
   10  availability of additional allocation or reallocation of bonds
   11  for water facilities and sewage facilities.
   12         Section 2. Present subsections (9) through (12) of section
   13  367.022, Florida Statutes, are renumbered as subsections (10)
   14  through (13), respectively, and a new subsection (9) is added to
   15  that section, to read:
   16         367.022 Exemptions.—The following are not subject to
   17  regulation by the commission as a utility nor are they subject
   18  to the provisions of this chapter, except as expressly provided:
   19         (9) A person who resells water service to his or her
   20  tenants or to individually metered residents for a fee that does
   21  not exceed the actual purchase price plus:
   22         (a) Up to 9 percent of the actual purchase price; or
   23         (b) The actual cost of meter reading and billing.
   24         Section 3. Present subsections (7) and (8) of section
   25  367.081, Florida Statutes, are renumbered as subsections (8) and
   26  (9), respectively, subsections (2) and (4) and present
   27  subsection (7) of that section are amended, and a new subsection
   28  (7) is added to that section, to read:
   29         367.081 Rates; procedure for fixing and changing.—
   30         (2)(a)1. The commission shall, either upon request or upon
   31  its own motion, fix rates that which are just, reasonable,
   32  compensatory, and not unfairly discriminatory.
   33         1. In each every such proceeding, the commission shall
   34  consider the value and quality of the service and the cost of
   35  providing the service, which must shall include, but need not be
   36  limited to, debt interest; the requirements of the utility for
   37  working capital; maintenance, depreciation, tax, and operating
   38  expenses incurred in the operation of all property used and
   39  useful in the public service; and a fair return on the
   40  investment of the utility in property used and useful in the
   41  public service. However, the commission shall not allow the
   42  inclusion of contributions-in-aid-of-construction in the rate
   43  base of a any utility during a rate proceeding or, nor shall the
   44  commission impute prospective future contributions-in-aid-of
   45  construction against the utility’s investment in property used
   46  and useful in the public service.; and Accumulated depreciation
   47  on such contributions-in-aid-of-construction shall not be used
   48  to reduce the rate base, and nor shall depreciation on such
   49  contributed assets shall not be considered a cost of providing
   50  utility service.
   51         2. For purposes of such proceedings, the commission shall
   52  consider utility property, including land acquired or facilities
   53  constructed or to be constructed within a reasonable time in the
   54  future, up to not to exceed 24 months after the end of the
   55  historic base year used to set final rates unless a longer
   56  period is approved by the commission, to be used and useful in
   57  the public service, if:
   58         a. Such property is needed to serve current customers;
   59         b. Such property is needed to serve customers 5 years after
   60  the end of the test year used in the commission’s final order on
   61  a rate request as provided in subsection (6) at a growth rate
   62  for equivalent residential connections up to not to exceed 5
   63  percent per year; or
   64         c. Such property is needed to serve customers more than 5
   65  full years after the end of the test year used in the
   66  commission’s final order on a rate request as provided in
   67  subsection (6) only to the extent that the utility presents
   68  clear and convincing evidence to justify such consideration.
   69         3. In determining the value and quality of water service
   70  provided by a utility and whether such utility has satisfied its
   71  obligation to provide water service to its customers, the
   72  commission shall consider the extent to which the utility meets
   73  secondary drinking water standards regarding taste, odor, color,
   74  or corrosiveness adopted by the Department of Environmental
   75  Protection and the local government. In making its
   76  determination, the commission shall consider:
   77         a. Testimony and evidence provided by customers and the
   78  utility.
   79         b. Complaints that relate to the secondary drinking water
   80  standards which customers have filed during the past 5 years
   81  with the commission, the Department of Environmental Protection,
   82  the county health departments, or the applicable local
   83  government.
   84         c. The results of past tests required by the Department of
   85  Environmental Protection or county health departments which
   86  measure the utility’s compliance with the applicable secondary
   87  drinking water standards.
   88         d. The results of other tests, if deemed necessary by the
   89  commission.
   90         4. In determining the value and quality of wastewater
   91  service provided by a utility, the commission shall consider the
   92  extent to which the utility provides wastewater service to its
   93  customers which does not cause odor, noise, aerosol drift, or
   94  lighting that adversely affects customers. In making its
   95  determination, the commission shall consider:
   96         a. Testimony and evidence provided by customers and the
   97  utility.
   98         b. Complaints that relate to the alleged odor, noise,
   99  aerosol drift, or lighting problem which customers have filed
  100  during the past 5 years with any of the following:
  101         (I) The commission;
  102         (II) The Department of Environmental Protection;
  103         (III) The county health departments; or
  104         (IV) The local government.
  105         5. If the commission determines that a utility provides
  106  water service that does not meet the secondary water quality
  107  standards of the Department of Environmental Protection and the
  108  local government regarding taste, odor, color, or corrosiveness,
  109  or that a utility provides wastewater service that adversely
  110  affects customers due to odor, noise, aerosol drift, or
  111  lighting, the utility shall provide the commission with
  112  estimates of the costs and benefits of various solutions to the
  113  problems. The utility shall meet with its customers to discuss
  114  the costs and benefits of the various solutions and report to
  115  the commission the conclusions of the meetings. The commission
  116  shall adopt rules necessary to assess and enforce the utility’s
  117  compliance with this subparagraph. The rules shall prescribe
  118  penalties, including fines and reduction of return on equity of
  119  up to 100 basis points, if a utility fails to adequately address
  120  or offer solutions to the water or wastewater problems.
  121         6. A utility may recover its prudently incurred costs and
  122  expenses to resolve deficiencies found by the commission
  123  pursuant to this subsection or found by the Department of
  124  Environmental Protection in a proceeding under chapter 403,
  125  related to noncompliance with secondary drinking water standards
  126  regarding taste, odor, color, or corrosiveness, or concerning
  127  wastewater service issues related to odor, noise, aerosol drift,
  128  or lighting. Such costs shall be recoverable through a rate case
  129  filed pursuant to this section or through a separate proceeding
  130  initiated by petition of the utility. In its filing, the utility
  131  shall describe the activities and costs projected or incurred to
  132  resolve the deficiencies found by the commission or the
  133  department. Such costs may be a result of action agreed upon by
  134  the utility and the commission or the department or as a
  135  consequence of a consent order.
  136  
  137  Notwithstanding the provisions of this paragraph, the commission
  138  shall approve rates for service which allow a utility to recover
  139  from customers the full amount of environmental compliance
  140  costs. Such rates may not include charges for allowances for
  141  funds prudently invested or similar charges. For purposes of
  142  this requirement, the term “environmental compliance costs”
  143  includes all reasonable expenses and fair return on any prudent
  144  investment incurred by a utility in complying with the
  145  requirements or conditions contained in any permitting,
  146  enforcement, or similar decisions of the United States
  147  Environmental Protection Agency, the Department of Environmental
  148  Protection, a water management district, or any other
  149  governmental entity with similar regulatory jurisdiction.
  150         (b) In establishing initial rates for a utility, the
  151  commission may project the financial and operational data as set
  152  out in paragraph (a) to a point in time when the utility is
  153  expected to be operating at a reasonable level of capacity.
  154         (c) In establishing rates for a utility, the commission may
  155  authorize the creation of a utility reserve fund. The commission
  156  shall adopt rules to govern the fund, including, but not limited
  157  to, rules relating to expenses for which the fund may be used,
  158  segregation of reserve account funds, requirements for a capital
  159  improvement plan, and requirements for commission authorization
  160  before disbursements are made from the reserve fund.
  161         (4)(a) On or before March 31 of each year, the commission
  162  by order shall establish a price increase or decrease index for
  163  major categories of operating costs incurred by utilities
  164  subject to its jurisdiction reflecting the percentage of
  165  increase or decrease in such costs from the most recent 12-month
  166  historical data available. The commission by rule shall
  167  establish the procedure to be used in determining such indices
  168  and a procedure by which a utility, without further action by
  169  the commission, or the commission on its own motion, may
  170  implement an increase or decrease in its rates based upon the
  171  application of the indices to the amount of the major categories
  172  of operating costs incurred by the utility during the
  173  immediately preceding calendar year, except to the extent of any
  174  disallowances or adjustments for those expenses of that utility
  175  in its most recent rate proceeding before the commission. The
  176  rules shall provide that, upon a finding of good cause,
  177  including inadequate service, the commission may order a utility
  178  to refrain from implementing a rate increase hereunder unless
  179  implemented under a bond or corporate undertaking in the same
  180  manner as interim rates may be implemented under s. 367.082. A
  181  utility may not use this procedure between the official filing
  182  date of the rate proceeding and 1 year thereafter, unless the
  183  case is completed or terminated at an earlier date. A utility
  184  may not use this procedure to increase any operating cost for
  185  which an adjustment has been or could be made under paragraph
  186  (b), or to increase its rates by application of a price index
  187  other than the most recent price index authorized by the
  188  commission at the time of filing.
  189         (b) Upon verified notice to the commission 45 days before
  190  implementation of the increase or decrease, and without a
  191  hearing, the approved rates of a utility shall automatically
  192  increase or decrease. Such notice shall inform the commission
  193  that the utility’s costs for a specified expense item have
  194  changed.
  195         1. The new rates shall reflect, on an amortized or annual
  196  basis, as appropriate, the cost or amount of change in the cost
  197  of the specified expense item. The new rates may not reflect the
  198  costs of a specified expense item already included in the rates
  199  of a utility. Specified expense items eligible for automatic
  200  increase or decrease of a utility’s rates include, but are not
  201  limited to:
  202         a. The rates charged by a governmental authority or other
  203  water or wastewater utility regulated by the commission which
  204  provides utility service to the utility.
  205         b. The rates or fees that the utility is charged for
  206  electric power.
  207         c. The amount of ad valorem taxes assessed against the
  208  utility’s used and useful property.
  209         d. The fees charged by the Department of Environmental
  210  Protection in connection with the National Pollutant Discharge
  211  Elimination System permit program.
  212         e. The regulatory assessment fees imposed upon the utility
  213  by the commission.
  214         f. Costs incurred for water quality or wastewater quality
  215  testing required by the Department of Environmental Protection.
  216         g. The fees charged for wastewater sludge disposal.
  217         h. A loan service fee or loan origination fee associated
  218  with a loan related to an eligible project. The commission shall
  219  adopt rules governing the determination of eligible projects,
  220  which shall be limited to those projects associated with new
  221  infrastructure or improvements to existing infrastructure needed
  222  to achieve or maintain compliance with federal, state, and local
  223  governmental primary or secondary drinking water standards or
  224  wastewater treatment standards that relate to:
  225         (I) The provision of water or wastewater service for
  226  existing customers;
  227         (II) The remediation or prevention of a violation of
  228  federal, state, and local governmental primary or secondary
  229  health standards;
  230         (III) The replacement or upgrade of aging water or
  231  wastewater infrastructure if needed to achieve or maintain
  232  compliance with federal, state, and local governmental primary
  233  or secondary drinking water regulations; or
  234         (IV) Projects consistent with the most recent long-range
  235  plan of the utility on file with the commission. Eligible
  236  projects do not include projects primarily intended to serve
  237  future growth.
  238         i. Costs incurred for a tank inspection required by the
  239  Department of Environmental Protection or a local governmental
  240  authority.
  241         j. Operator and distribution license fees required by the
  242  Department of Environmental Protection or a local governmental
  243  authority.
  244         k. Water or wastewater operating permit fees charged by the
  245  Department of Environmental Protection or a local governmental
  246  authority.
  247         l. Consumptive or water use permit fees charged by a water
  248  management district.
  249         2. A utility may not use the procedure under this paragraph
  250  to increase or decrease its rates as a result of an increase or
  251  decrease in a specific expense item which occurred more than 12
  252  months before the filing by the utility.
  253         3. The commission may establish by rule additional specific
  254  expense items that cause an automatic increase or decrease in a
  255  utility’s rates as provided in this paragraph. To be eligible
  256  for such treatment, an additional expense item shall be imposed
  257  upon the utility by a federal, state, or local law, rule, order,
  258  or notice and shall be outside the control of the utility. If
  259  the commission exercises its authority to establish such rule,
  260  the commission shall, at least once every 5 years, review the
  261  rule and determine if each expense item should continue to be
  262  cause for the automatic increase or decrease of a utility’s
  263  rates, or if any additional items should become cause for the
  264  automatic increase or decrease of a utility’s rates as provided
  265  in this paragraph The approved rates of any utility which
  266  receives all or any portion of its utility service from a
  267  governmental authority or from a water or wastewater utility
  268  regulated by the commission and which redistributes that service
  269  to its utility customers shall be automatically increased or
  270  decreased without hearing, upon verified notice to the
  271  commission 45 days prior to its implementation of the increase
  272  or decrease that the rates charged by the governmental authority
  273  or other utility have changed. The approved rates of any utility
  274  which is subject to an increase or decrease in the rates or fees
  275  that it is charged for electric power, the amount of ad valorem
  276  taxes assessed against its used and useful property, the fees
  277  charged by the Department of Environmental Protection in
  278  connection with the National Pollutant Discharge Elimination
  279  System Program, or the regulatory assessment fees imposed upon
  280  it by the commission shall be increased or decreased by the
  281  utility, without action by the commission, upon verified notice
  282  to the commission 45 days prior to its implementation of the
  283  increase or decrease that the rates charged by the supplier of
  284  the electric power or the taxes imposed by the governmental
  285  authority, or the regulatory assessment fees imposed upon it by
  286  the commission have changed. The new rates authorized shall
  287  reflect the amount of the change of the ad valorem taxes or
  288  rates imposed upon the utility by the governmental authority,
  289  other utility, or supplier of electric power, or the regulatory
  290  assessment fees imposed upon it by the commission. The approved
  291  rates of any utility shall be automatically increased, without
  292  hearing, upon verified notice to the commission 45 days prior to
  293  implementation of the increase that costs have been incurred for
  294  water quality or wastewater quality testing required by the
  295  Department of Environmental Protection. The new rates authorized
  296  shall reflect, on an amortized basis, the cost of, or the amount
  297  of change in the cost of, required water quality or wastewater
  298  quality testing performed by laboratories approved by the
  299  Department of Environmental Protection for that purpose. The new
  300  rates, however, shall not reflect the costs of any required
  301  water quality or wastewater quality testing already included in
  302  a utility’s rates. A utility may not use this procedure to
  303  increase its rates as a result of water quality or wastewater
  304  quality testing or an increase in the cost of purchased water
  305  services, sewer services, or electric power or in assessed ad
  306  valorem taxes, which increase was initiated more than 12 months
  307  before the filing by the utility.
  308         4.The provisions of This subsection does do not prevent a
  309  utility from seeking a change in rates under pursuant to the
  310  provisions of subsection (2).
  311         (c) Before implementing a change in rates under this
  312  subsection, the utility must shall file an affirmation under
  313  oath as to the accuracy of the figures and calculations upon
  314  which the change in rates is based, stating that the change will
  315  not cause the utility to exceed the range of its last authorized
  316  rate of return on equity. A person who Whoever makes a false
  317  statement in the affirmation required under this subsection
  318  hereunder, which statement he or she does not believe to be true
  319  in regard to any material matter, commits is guilty of a felony
  320  of the third degree, punishable as provided in s. 775.082, s.
  321  775.083, or s. 775.084.
  322         (d) If, within 15 months after the filing of a utility’s
  323  annual report required by s. 367.121, the commission finds that
  324  the utility exceeded the range of its last authorized rate of
  325  return on equity after an adjustment in rates as authorized by
  326  this subsection was implemented within the year for which the
  327  report was filed or was implemented in the preceding year, the
  328  commission may order the utility to refund, with interest, the
  329  difference to the ratepayers and adjust rates accordingly. This
  330  provision does shall not be construed to require a bond or
  331  corporate undertaking not otherwise required.
  332         (e) Notwithstanding anything in this section herein to the
  333  contrary, a utility may not adjust its rates under this
  334  subsection more than two times in any 12-month period. For the
  335  purpose of this paragraph, a combined application or
  336  simultaneously filed applications that were filed under the
  337  provisions of paragraphs (a) and (b) are shall be considered one
  338  rate adjustment.
  339         (f) At least annually, the commission shall may regularly,
  340  not less often than once each year, establish by order a
  341  leverage formula or formulae that reasonably reflect the range
  342  of returns on common equity for an average water or wastewater
  343  utility and that which, for purposes of this section, are shall
  344  be used to calculate the last authorized rate of return on
  345  equity for a any utility which otherwise would not have an no
  346  established rate of return on equity. In any other proceeding in
  347  which an authorized rate of return on equity is to be
  348  established, a utility, in lieu of presenting evidence on its
  349  rate of return on common equity, may move the commission to
  350  adopt the range of rates of return on common equity which is
  351  that has been established under this paragraph.
  352         (7) A water utility may file tariffs establishing a
  353  surcharge, or other method for the automatic adjustment of its
  354  rates, which shall provide for recovery of the prudently
  355  incurred fixed costs consisting of depreciation and pretax
  356  returns of certain system improvement projects, as approved by
  357  the commission, which are completed and placed in service
  358  between base rate proceedings. Such projects shall be for the
  359  specific purpose of achieving compliance with secondary drinking
  360  water quality standards regarding taste, odor, color, or
  361  corrosiveness. With respect to each tariff filed, the commission
  362  shall prescribe the specific procedures to be followed in
  363  establishing the sliding scale or other automatic adjustment
  364  method.
  365         (8)(7) The commission shall determine the reasonableness of
  366  rate case expenses and shall disallow all rate case expenses
  367  determined to be unreasonable. A No rate case expense determined
  368  to be unreasonable may not shall be paid by a consumer. In
  369  determining the reasonable level of rate case expense, the
  370  commission shall consider the extent to which a utility has used
  371  utilized or failed to use utilize the provisions of paragraph
  372  (4)(a) or paragraph (4)(b) and such other criteria as it may
  373  establish by rule.
  374         Section 4. Subsection (3) of section 367.0814, Florida
  375  Statutes, is amended to read:
  376         367.0814 Staff assistance in changing rates and charges;
  377  interim rates.—
  378         (3) The provisions of s. 367.081(1), (2)(a), (2)(c), and
  379  (3), and (7) shall apply in determining the utility’s rates and
  380  charges.
  381         Section 5. Subsection (3) of section 403.8532, Florida
  382  Statutes, is amended to read:
  383         403.8532 Drinking water state revolving loan fund; use;
  384  rules.—
  385         (3) The department may make, or request that the
  386  corporation make, loans, grants, and deposits to community water
  387  systems, for-profit privately owned or investor-owned water
  388  systems, nonprofit transient noncommunity water systems, and
  389  nonprofit nontransient noncommunity water systems to assist them
  390  in planning, designing, and constructing public water systems,
  391  unless such public water systems are for-profit privately owned
  392  or investor-owned systems that regularly serve 1,500 service
  393  connections or more within a single certified or franchised
  394  area. However, a for-profit privately owned or investor-owned
  395  public water system that regularly serves 1,500 service
  396  connections or more within a single certified or franchised area
  397  may qualify for a loan only if the proposed project will result
  398  in the consolidation of two or more public water systems. The
  399  department may provide loan guarantees, purchase loan insurance,
  400  and refinance local debt through the issue of new loans for
  401  projects approved by the department. Public water systems may
  402  borrow funds made available pursuant to this section and may
  403  pledge any revenues or other adequate security available to them
  404  to repay any funds borrowed.
  405         (a) The department shall administer loans so that amounts
  406  credited to the Drinking Water Revolving Loan Trust Fund in any
  407  fiscal year are reserved for the following purposes:
  408         1. At least 15 percent for qualifying small public water
  409  systems.
  410         2. Up to 15 percent for qualifying financially
  411  disadvantaged communities.
  412         (b) If an insufficient number of the projects for which
  413  funds are reserved under this subsection have been submitted to
  414  the department at the time the funding priority list authorized
  415  under this section is adopted, the reservation of these funds no
  416  longer applies. The department may award the unreserved funds as
  417  otherwise provided in this section.
  418         Section 6. This act shall take effect July 1, 2014.
  419  
  420  ================= T I T L E  A M E N D M E N T ================
  421  And the title is amended as follows:
  422         Delete everything before the enacting clause
  423  and insert:
  424                        A bill to be entitled                      
  425         An act relating to water and wastewater utility
  426         systems; creating s. 159.8105, F.S.; requiring the
  427         Division of Bond Finance of the State Board of
  428         Administration to review the allocation of private
  429         activity bonds to determine the availability of
  430         additional allocation or reallocation of bonds for
  431         water facilities or sewage facilities; amending s.
  432         367.022, F.S.; exempting from regulation by the
  433         Florida Public Service Commission a person who resells
  434         water service to certain tenants or residents up to a
  435         specified cost; amending s. 367.081, F.S.;
  436         establishing criteria for determining the quality of
  437         water and wastewater services provided by a utility;
  438         establishing a procedure to follow if the commission
  439         determines that a utility has failed to provide water
  440         and wastewater services that meet certain standards;
  441         requiring the commission to adopt rules that include
  442         fines; providing for recovery of costs prudently
  443         incurred by a utility to address certain findings of
  444         the commission or the Department of Environmental
  445         Protection; authorizing the creation of a utility
  446         reserve fund to establish rates for a utility;
  447         requiring the commission to adopt rules to govern such
  448         fund; providing for the automatic increase or decrease
  449         of approved rates under certain circumstances;
  450         establishing criteria for adjusted rates; specifying
  451         expense items that permit an automatic increase or
  452         decrease in utility rates; providing standards to
  453         allow the commission to establish, by rule, additional
  454         specified expense items that cause an automatic
  455         increase or decrease of utility rates; deleting
  456         certain requirements for approved utility rates that
  457         are automatically increased or decreased, upon notice
  458         to the commission; deleting a prohibition to conform
  459         to changes made by the act; authorizing a water
  460         utility to establish a surcharge or other mechanism to
  461         recover the prudently incurred fixed costs of certain
  462         system improvement projects approved by the
  463         commission; amending s. 367.0814, F.S.; conforming
  464         cross-references to changes made by the act; amending
  465         s. 403.8532, F.S.; authorizing the Department of
  466         Environmental Protection to make, or to request that
  467         the Florida Water Pollution Control Financing
  468         Corporation make, loans, grants, and deposits to for
  469         profit privately owned or investor-owned water
  470         systems, and deleting current restrictions on such
  471         activities; providing an effective date.