Florida Senate - 2014                                    SB 1050
       
       
        
       By Senator Hays
       
       
       
       
       
       11-00226B-14                                          20141050__
    1                        A bill to be entitled                      
    2         An act relating to water and wastewater utility
    3         systems; creating s. 159.810, F.S.; requiring the
    4         Division of Bond Finance of the State Board of
    5         Administration to review the allocation of private
    6         activity bonds to determine the availability of
    7         additional allocation or reallocation of bonds for
    8         water and wastewater infrastructure projects; amending
    9         s. 212.08, F.S.; extending specified tax exemptions to
   10         certain investor-owned water and wastewater utilities;
   11         amending s. 367.022, F.S.; exempting from regulation
   12         by the Florida Public Service Commission a person who
   13         resells water service to certain tenants or residents
   14         up to a specified cost; amending s. 367.081, F.S.;
   15         establishing criteria for determining the quality of
   16         water and wastewater services provided by a utility;
   17         establishing a procedure for the commission to follow
   18         if it determines that a utility has failed to provide
   19         water and wastewater services that meet certain
   20         standards; authorizing the commission to adopt rules
   21         that include fines; authorizing the commission to
   22         create a utility reserve fund to establish rates for a
   23         utility; providing for the automatic increase or
   24         decrease of approved rates under certain
   25         circumstances; establishing criteria for adjusted
   26         rates; specifying expense items that cause an
   27         automatic increase or decrease in utility rates;
   28         providing standards to allow the commission to
   29         establish, by rule, additional specified expense items
   30         that cause an automatic increase or decrease of
   31         utility rates; deleting certain requirements for
   32         approved utility rates that are automatically
   33         increased or decreased, upon notice to the commission;
   34         deleting a prohibition to conform to changes made by
   35         the act; prohibiting the commission from awarding rate
   36         case expense under certain circumstances; amending s.
   37         367.0814, F.S.; describing the circumstances under
   38         which the commission may award rate case expense to
   39         cover attorney fees or fees for other outside
   40         consultants; requiring the commission to adopt related
   41         rules; amending s. 367.0816, F.S.; requiring the
   42         commission to determine that the amount of rate case
   43         expense is reasonable before the expense can be
   44         apportioned for a certain period; providing
   45         limitations on and rules for the amortized rate case
   46         expense recovery; amending s. 403.8532, F.S.; allowing
   47         the Department of Environmental Protection to make, or
   48         to request that the Florida Water Pollution Control
   49         Financing Corporation make, loans, grants, and
   50         deposits to for-profit privately owned or investor
   51         owned systems, and deleting current restrictions on
   52         such activity; providing an effective date.
   53          
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Section 159.810, Florida Statutes, is created to
   57  read:
   58         159.810 Allocation of bonds for water and wastewater
   59  infrastructure projects.—The division shall review the
   60  allocation of private activity bonds to determine the
   61  availability of additional allocation or reallocation of bonds
   62  for water and wastewater infrastructure projects.
   63         Section 2. Paragraph (kkk) is added to subsection (7) of
   64  section 212.08, Florida Statutes, to read:
   65         212.08 Sales, rental, use, consumption, distribution, and
   66  storage tax; specified exemptions.—The sale at retail, the
   67  rental, the use, the consumption, the distribution, and the
   68  storage to be used or consumed in this state of the following
   69  are hereby specifically exempt from the tax imposed by this
   70  chapter.
   71         (7) MISCELLANEOUS EXEMPTIONS.—Exemptions provided to any
   72  entity by this chapter do not inure to any transaction that is
   73  otherwise taxable under this chapter when payment is made by a
   74  representative or employee of the entity by any means,
   75  including, but not limited to, cash, check, or credit card, even
   76  when that representative or employee is subsequently reimbursed
   77  by the entity. In addition, exemptions provided to any entity by
   78  this subsection do not inure to any transaction that is
   79  otherwise taxable under this chapter unless the entity has
   80  obtained a sales tax exemption certificate from the department
   81  or the entity obtains or provides other documentation as
   82  required by the department. Eligible purchases or leases made
   83  with such a certificate must be in strict compliance with this
   84  subsection and departmental rules, and a any person who makes an
   85  exempt purchase with a certificate that is not in strict
   86  compliance with this subsection and the rules is liable for and
   87  shall pay the tax. The department may adopt rules to administer
   88  this subsection.
   89         (kkk) Investor-owned water and wastewater utilities.—Sales
   90  or leases to an investor-owned water or wastewater utility owned
   91  or operated by a Florida corporation are exempt from the tax
   92  imposed by this chapter if the sole or primary function of the
   93  corporation is to construct, maintain, or operate a water or
   94  wastewater system in this state and if the goods or services
   95  purchased or leased are used in this state.
   96         Section 3. Present subsections (9) through (12) of section
   97  367.022, Florida Statutes, are redesignated as subsections (10)
   98  through (13), respectively, and a new subsection (9) is added to
   99  that section, to read:
  100         367.022 Exemptions.—The following are not subject to
  101  regulation by the commission as a utility nor are they subject
  102  to the provisions of this chapter, except as expressly provided:
  103         (9) Any person who resells water service to his or her
  104  tenants or to individually metered residents for a fee that does
  105  not exceed the actual purchase price plus:
  106         (a) Up to 9 percent of the actual purchase price; or
  107         (b) The actual cost of meter reading and billing.
  108         Section 4. Subsections (2), (4), and (7) of section
  109  367.081, Florida Statutes, are amended to read:
  110         367.081 Rates; procedure for fixing and changing.—
  111         (2)(a)1. The commission shall, either upon request or upon
  112  its own motion, fix rates that which are just, reasonable,
  113  compensatory, and not unfairly discriminatory.
  114         1. In each every such proceeding, the commission shall
  115  consider the value and quality of the service and the cost of
  116  providing the service, which must shall include, but need not be
  117  limited to, debt interest; the requirements of the utility for
  118  working capital; maintenance, depreciation, tax, and operating
  119  expenses incurred in the operation of all property used and
  120  useful in the public service; and a fair return on the
  121  investment of the utility in property used and useful in the
  122  public service. However, the commission shall not allow the
  123  inclusion of contributions-in-aid-of-construction in the rate
  124  base of a any utility during a rate proceeding or, nor shall the
  125  commission impute prospective future contributions-in-aid-of
  126  construction against the utility’s investment in property used
  127  and useful in the public service.; and Accumulated depreciation
  128  on such contributions-in-aid-of-construction shall not be used
  129  to reduce the rate base, and nor shall depreciation on such
  130  contributed assets shall not be considered a cost of providing
  131  utility service.
  132         2. For purposes of such proceedings, the commission shall
  133  consider utility property, including land acquired or facilities
  134  constructed or to be constructed within a reasonable time in the
  135  future, up to not to exceed 24 months after the end of the
  136  historic base year used to set final rates unless a longer
  137  period is approved by the commission, to be used and useful in
  138  the public service, if:
  139         a. Such property is needed to serve current customers;
  140         b. Such property is needed to serve customers 5 years after
  141  the end of the test year used in the commission’s final order on
  142  a rate request as provided in subsection (6) at a growth rate
  143  for equivalent residential connections up to not to exceed 5
  144  percent per year; or
  145         c. Such property is needed to serve customers more than 5
  146  full years after the end of the test year used in the
  147  commission’s final order on a rate request as provided in
  148  subsection (6) only to the extent that the utility presents
  149  clear and convincing evidence to justify such consideration.
  150         3. In determining the value and quality of water service
  151  provided by a utility and whether such utility has satisfied its
  152  obligation to provide water service to its customers, the
  153  commission shall consider the extent to which the utility meets
  154  secondary drinking water standards regarding taste, odor, color,
  155  or corrosiveness which are established by the Department of
  156  Environmental Protection and the local government. In making its
  157  determination, the commission shall consider:
  158         a. Testimony and evidence provided by customers and the
  159  utility;
  160         b. Complaints that relate to the secondary water standards
  161  which customers have filed during the past 5 years with the
  162  commission, the Department of Environmental Protection, the
  163  county health departments, or the local government;
  164         c. The results of past tests required by the Department of
  165  Environmental Protection or county health departments which
  166  measure the utility’s compliance with the applicable secondary
  167  drinking water standards; and
  168         d. The results of other tests, if deemed necessary by the
  169  commission.
  170         4. In determining the value and quality of wastewater
  171  service provided by a utility, the commission shall consider the
  172  extent to which the utility provides wastewater service to its
  173  customers which does not cause odor, noise, aerosol drift, or
  174  lighting that adversely affects customers. In making its
  175  determination, the commission shall consider:
  176         a. Testimony and evidence provided by customers and the
  177  utility; and
  178         b. All complaints related to the alleged odor, noise,
  179  aerosol drift, or lighting problem which customers have filed
  180  over the past 5 years with any of the following:
  181         (I) The commission;
  182         (II) The Department of Environmental Protection;
  183         (III) The county health departments; or
  184         (IV) The local government.
  185         5. If the commission determines that a utility provides
  186  water service that does not meet the secondary water quality
  187  standards of the Department of Environmental Protection and the
  188  local government regarding taste, odor, color, or corrosiveness,
  189  or that a utility provides wastewater service that adversely
  190  affects customers due to odor, noise, aerosol drift, or
  191  lighting, the utility shall provide estimates of the costs and
  192  benefits of various solutions to the problems. The utility must
  193  meet with its customers to discuss the costs and benefits of the
  194  various solutions and report to the commission the conclusions
  195  of the meetings. The commission shall adopt rules necessary to
  196  assess and enforce the utility’s compliance with this section.
  197  The rules must prescribe penalties, including fines and
  198  reduction of return on equity of up to 100 basis points, if a
  199  utility fails to adequately address or offer solutions to the
  200  water or wastewater problems.
  201  
  202  Notwithstanding the provisions of this paragraph, the commission
  203  shall approve rates for service which allow a utility to recover
  204  from customers the full amount of environmental compliance
  205  costs. Such rates may not include charges for allowances for
  206  funds prudently invested or similar charges. For purposes of
  207  this requirement, the term “environmental compliance costs”
  208  includes all reasonable expenses and fair return on any prudent
  209  investment incurred by a utility in complying with the
  210  requirements or conditions contained in any permitting,
  211  enforcement, or similar decisions of the United States
  212  Environmental Protection Agency, the Department of Environmental
  213  Protection, a water management district, or any other
  214  governmental entity with similar regulatory jurisdiction.
  215         (b) In establishing initial rates for a utility, the
  216  commission may project the financial and operational data as set
  217  out in paragraph (a) to a point in time when the utility is
  218  expected to be operating at a reasonable level of capacity.
  219         (c) In establishing rates for a utility, the commission may
  220  authorize the creation of a utility reserve fund. The commission
  221  shall adopt rules to govern the fund, including, but not limited
  222  to, rules relating to expenses for which the fund may be used,
  223  segregation of reserve account funds, requirements for a capital
  224  improvement plan, and requirements for commission authorization
  225  before disbursements from the reserve fund.
  226         (4)(a) On or before March 31 of each year, the commission
  227  by order shall establish a price increase or decrease index for
  228  major categories of operating costs incurred by utilities
  229  subject to its jurisdiction reflecting the percentage of
  230  increase or decrease in such costs from the most recent 12-month
  231  historical data available. The commission by rule shall
  232  establish the procedure to be used in determining such indices
  233  and a procedure by which a utility, without further action by
  234  the commission, or the commission on its own motion, may
  235  implement an increase or decrease in its rates based upon the
  236  application of the indices to the amount of the major categories
  237  of operating costs incurred by the utility during the
  238  immediately preceding calendar year, except to the extent of any
  239  disallowances or adjustments for those expenses of that utility
  240  in its most recent rate proceeding before the commission. The
  241  rules shall provide that, upon a finding of good cause,
  242  including inadequate service, the commission may order a utility
  243  to refrain from implementing a rate increase hereunder unless
  244  implemented under a bond or corporate undertaking in the same
  245  manner as interim rates may be implemented under s. 367.082. A
  246  utility may not use this procedure between the official filing
  247  date of the rate proceeding and 1 year thereafter, unless the
  248  case is completed or terminated at an earlier date. A utility
  249  may not use this procedure to increase any operating cost for
  250  which an adjustment has been or could be made under paragraph
  251  (b), or to increase its rates by application of a price index
  252  other than the most recent price index authorized by the
  253  commission at the time of filing.
  254         (b) Upon verified notice to the commission 45 days before
  255  implementation of the increase or decrease, and without a
  256  hearing, the approved rates of a utility must automatically
  257  increase or decrease. Such notice must inform the commission
  258  that the utility’s costs for a specified expense item have
  259  changed.
  260         1. The new rates must reflect, on an amortized or annual
  261  basis, as appropriate, the cost or amount of change in the cost
  262  of the specified expense item. The new rates may not reflect the
  263  costs of a specified expense item already included in the rates
  264  of a utility. Specified expense items eligible for automatic
  265  increase or decrease of a utility’s rates include, but are not
  266  limited to:
  267         a. The rates charged by a governmental authority or other
  268  water or wastewater utility regulated by the commission which
  269  provides utility service to the utility.
  270         b. The rates or fees that the utility is charged for
  271  electric power.
  272         c. The amount of ad valorem taxes assessed against the
  273  utility’s used and useful property.
  274         d. The fees charged by the Department of Environmental
  275  Protection in connection with the National Pollutant Discharge
  276  Elimination System Program permit.
  277         e. The regulatory assessment fees imposed upon the utility
  278  by the commission.
  279         f. Costs incurred for water quality or wastewater quality
  280  testing required by the Department of Environmental Protection.
  281         g. The fees charged for wastewater sludge disposal.
  282         h. A loan service fee or loan origination fee associated
  283  with a loan related to an eligible project. The commission shall
  284  adopt rules governing the determination of eligible projects,
  285  which must be limited to those projects associated with new
  286  infrastructure or improvements to existing infrastructure needed
  287  to achieve or maintain compliance with federal, state, and local
  288  governmental primary or secondary drinking water standards or
  289  wastewater treatment standards that relate to:
  290         (I) The provision of water or wastewater service for
  291  existing customers;
  292         (II) The violation or prevention of a violation of federal,
  293  state, and local governmental primary or secondary health
  294  standards;
  295         (III) The replacement or upgrade of aging water or
  296  wastewater infrastructure if needed to achieve or maintain
  297  compliance with federal, state, and local governmental primary
  298  or secondary regulations; or
  299         (IV) Projects consistent with the most recent long-range
  300  plan of the utility on file with the commission. Eligible
  301  projects do not include projects primarily intended to serve
  302  future growth.
  303         i. Costs incurred for a tank inspection required by the
  304  Department of Environmental Protection or a local governmental
  305  authority.
  306         j. Operator and distribution license fees required by the
  307  Department of Environmental Protection or a local governmental
  308  authority.
  309         k. Water or wastewater operating permit fees charged by the
  310  Department of Environmental Protection or a local governmental
  311  authority.
  312         l. Consumptive or water use permit fees charged by a water
  313  management district.
  314         2. A utility may not use the procedure under this paragraph
  315  to increase or decrease its rates as a result of an increase or
  316  decrease in a specific expense item which occurred more than 12
  317  months before the filing by the utility.
  318         3. The commission may establish by rule additional specific
  319  expense items that cause an automatic increase or decrease in a
  320  utility’s rates as provided in this paragraph. To be eligible
  321  for such treatment, an additional expense item must be imposed
  322  upon the utility by a local, state, or federal law, rule, order,
  323  or notice and must be outside the control of the utility. If the
  324  commission exercises its authority to establish such rule, the
  325  commission must, at least once every 5 years, review the rule
  326  and determine if each expense item should continue to be cause
  327  for the automatic increase or decrease of a utility’s rates or
  328  if any additional items should become cause for the automatic
  329  increase or decrease of a utility’s rates as provided in this
  330  paragraph The approved rates of any utility which receives all
  331  or any portion of its utility service from a governmental
  332  authority or from a water or wastewater utility regulated by the
  333  commission and which redistributes that service to its utility
  334  customers shall be automatically increased or decreased without
  335  hearing, upon verified notice to the commission 45 days prior to
  336  its implementation of the increase or decrease that the rates
  337  charged by the governmental authority or other utility have
  338  changed. The approved rates of any utility which is subject to
  339  an increase or decrease in the rates or fees that it is charged
  340  for electric power, the amount of ad valorem taxes assessed
  341  against its used and useful property, the fees charged by the
  342  Department of Environmental Protection in connection with the
  343  National Pollutant Discharge Elimination System Program, or the
  344  regulatory assessment fees imposed upon it by the commission
  345  shall be increased or decreased by the utility, without action
  346  by the commission, upon verified notice to the commission 45
  347  days prior to its implementation of the increase or decrease
  348  that the rates charged by the supplier of the electric power or
  349  the taxes imposed by the governmental authority, or the
  350  regulatory assessment fees imposed upon it by the commission
  351  have changed. The new rates authorized shall reflect the amount
  352  of the change of the ad valorem taxes or rates imposed upon the
  353  utility by the governmental authority, other utility, or
  354  supplier of electric power, or the regulatory assessment fees
  355  imposed upon it by the commission. The approved rates of any
  356  utility shall be automatically increased, without hearing, upon
  357  verified notice to the commission 45 days prior to
  358  implementation of the increase that costs have been incurred for
  359  water quality or wastewater quality testing required by the
  360  Department of Environmental Protection. The new rates authorized
  361  shall reflect, on an amortized basis, the cost of, or the amount
  362  of change in the cost of, required water quality or wastewater
  363  quality testing performed by laboratories approved by the
  364  Department of Environmental Protection for that purpose. The new
  365  rates, however, shall not reflect the costs of any required
  366  water quality or wastewater quality testing already included in
  367  a utility’s rates. A utility may not use this procedure to
  368  increase its rates as a result of water quality or wastewater
  369  quality testing or an increase in the cost of purchased water
  370  services, sewer services, or electric power or in assessed ad
  371  valorem taxes, which increase was initiated more than 12 months
  372  before the filing by the utility.
  373         4.The provisions of This subsection does do not prevent a
  374  utility from seeking a change in rates under pursuant to the
  375  provisions of subsection (2).
  376         (c) Before implementing a change in rates under this
  377  subsection, the utility must shall file an affirmation under
  378  oath as to the accuracy of the figures and calculations upon
  379  which the change in rates is based, stating that the change will
  380  not cause the utility to exceed the range of its last authorized
  381  rate of return on equity. A person who Whoever makes a false
  382  statement in the affirmation required under this subsection
  383  hereunder, which statement he or she does not believe to be true
  384  in regard to any material matter, commits is guilty of a felony
  385  of the third degree, punishable as provided in s. 775.082, s.
  386  775.083, or s. 775.084.
  387         (d) If, within 15 months after the filing of a utility’s
  388  annual report required by s. 367.121, the commission finds that
  389  the utility exceeded the range of its last authorized rate of
  390  return on equity after an adjustment in rates as authorized by
  391  this subsection was implemented within the year for which the
  392  report was filed or was implemented in the preceding year, the
  393  commission may order the utility to refund, with interest, the
  394  difference to the ratepayers and adjust rates accordingly. This
  395  provision does shall not be construed to require a bond or
  396  corporate undertaking not otherwise required.
  397         (e) Notwithstanding anything in this section herein to the
  398  contrary, a utility may not adjust its rates under this
  399  subsection more than two times in any 12-month period. For the
  400  purpose of this paragraph, a combined application or
  401  simultaneously filed applications that were filed under the
  402  provisions of paragraphs (a) and (b) are shall be considered one
  403  rate adjustment.
  404         (f) At least annually, the commission shall may regularly,
  405  not less often than once each year, establish by order a
  406  leverage formula or formulae that reasonably reflect the range
  407  of returns on common equity for an average water or wastewater
  408  utility and which, for purposes of this section, are shall be
  409  used to calculate the last authorized rate of return on equity
  410  for a any utility which otherwise would not have an no
  411  established rate of return on equity. In any other proceeding in
  412  which an authorized rate of return on equity is to be
  413  established, a utility, in lieu of presenting evidence on its
  414  rate of return on common equity, may move the commission to
  415  adopt the range of rates of return on common equity which is
  416  that has been established under this paragraph.
  417         (7) The commission shall determine the reasonableness of
  418  rate case expenses and shall disallow all rate case expenses
  419  determined to be unreasonable. A No rate case expense determined
  420  to be unreasonable may not be shall be paid by a consumer. In
  421  determining the reasonable level of rate case expense, the
  422  commission shall consider the extent to which a utility has used
  423  utilized or failed to use utilize the provisions of paragraph
  424  (4)(a) or paragraph (4)(b) and such other criteria as it may
  425  establish by rule. In a rate case filed pursuant to this
  426  section, the commission shall not award rate case expenses that
  427  exceed the total rate increase approved by the commission
  428  exclusive of any rate case expense.
  429         Section 5. Subsection (3) of section 367.0814, Florida
  430  Statutes, is amended to read:
  431         367.0814 Staff assistance in changing rates and charges;
  432  interim rates.—
  433         (3) The provisions of s. 367.081(1), (2)(a), (2)(c), and
  434  (3), and (7) shall apply in determining the utility’s rates and
  435  charges. However, the commission shall not award rate case
  436  expense to cover fees for attorneys or other outside consultants
  437  who are engaged for purposes of preparing or filing the case if
  438  a utility receives staff assistance in changing rates and
  439  charges pursuant to this section, unless the Office of Public
  440  Counsel or interested parties have intervened. The commission
  441  may award rate case expense for attorney fees or other outside
  442  consultant fees if the fees are incurred for the purpose of
  443  providing consulting or legal services to the utility after the
  444  initial staff report is made available to customers and the
  445  utility. If there is a protest or appeal by a party other than
  446  the utility, the commission may award rate case expense to the
  447  utility for attorney fees or other outside consultant fees for
  448  costs incurred after the protest or appeal. The commission shall
  449  adopt rules to administer this subsection.
  450         Section 6. Section 367.0816, Florida Statutes, is amended
  451  to read:
  452         367.0816 Recovery of rate case expenses.—
  453         (1) The amount of rate case expense determined to be
  454  reasonable by the commission pursuant to s. 367.081 the
  455  provisions of this chapter to be recovered through a public
  456  utilities rate shall be apportioned for recovery through the
  457  utility’s rates over a period of 4 years. At the conclusion of
  458  the recovery period, the rate of the public utility shall be
  459  reduced immediately by the amount of rate case expense
  460  previously included in rates.
  461         (2) A utility may recover the 4-year amortized rate case
  462  expense for only one rate case at any given time. If the
  463  commission approves and a utility implements a rate change from
  464  a subsequent rate case pursuant to this section, the utility
  465  forfeits any unamortized rate case expense from a prior rate
  466  case. The unamortized portion of rate case expense for a prior
  467  case must be removed from rates before the implementation of an
  468  additional amortized rate case expense for the most recent rate
  469  proceeding. This limitation does not apply to the recovery of
  470  rate case expense for a limited proceeding filed pursuant to s.
  471  367.0822.
  472         Section 7. Subsection (3) of section 403.8532, Florida
  473  Statutes, is amended to read:
  474         403.8532 Drinking water state revolving loan fund; use;
  475  rules.—
  476         (3) The department may make, or request that the
  477  corporation make, loans, grants, and deposits to community water
  478  systems, for-profit privately owned or investor-owned water
  479  systems, nonprofit transient noncommunity water systems, and
  480  nonprofit nontransient noncommunity water systems to assist them
  481  in planning, designing, and constructing public water systems,
  482  unless such public water systems are for-profit privately owned
  483  or investor-owned systems that regularly serve 1,500 service
  484  connections or more within a single certified or franchised
  485  area. However, a for-profit privately owned or investor-owned
  486  public water system that regularly serves 1,500 service
  487  connections or more within a single certified or franchised area
  488  may qualify for a loan only if the proposed project will result
  489  in the consolidation of two or more public water systems. The
  490  department may provide loan guarantees, purchase loan insurance,
  491  and refinance local debt through the issue of new loans for
  492  projects approved by the department. Public water systems may
  493  borrow funds made available pursuant to this section and may
  494  pledge any revenues or other adequate security available to them
  495  to repay any funds borrowed.
  496         (a) The department shall administer loans so that amounts
  497  credited to the Drinking Water Revolving Loan Trust Fund in any
  498  fiscal year are reserved for the following purposes:
  499         1. At least 15 percent for qualifying small public water
  500  systems.
  501         2. Up to 15 percent for qualifying financially
  502  disadvantaged communities.
  503         (b) If an insufficient number of the projects for which
  504  funds are reserved under this subsection have been submitted to
  505  the department at the time the funding priority list authorized
  506  under this section is adopted, the reservation of these funds no
  507  longer applies. The department may award the unreserved funds as
  508  otherwise provided in this section.
  509         Section 8. This act shall take effect July 1, 2014.