| 1 | A bill to be entitled |
| 2 | An act relating to water and wastewater utilities; |
| 3 | amending s. 163.01, F.S.; revising provisions for a |
| 4 | separate legal entity to acquire, own, construct, improve, |
| 5 | operate, and manage or finance certain public facilities; |
| 6 | providing for petition to the Public Service Commission of |
| 7 | the action or binding arbitration for certain changes; |
| 8 | defining "host government," "separate legal entity," |
| 9 | "system," and "utility"; requiring certain notice to the |
| 10 | commission and host government by the separate legal |
| 11 | entity that seeks to acquire any utility; providing |
| 12 | procedures for the host government to accept or reject the |
| 13 | proposal; requiring the separate legal entity to accept |
| 14 | the host government as a member upon adoption of a |
| 15 | membership resolution by the host government; providing |
| 16 | for the two parties to enter into negotiations to complete |
| 17 | the utility acquisition agreement; providing for the |
| 18 | separate legal entity to proceed with the acquisition if |
| 19 | the host government does not act; providing for petition |
| 20 | to the commission to consider whether the action is in the |
| 21 | public interest; providing for review and approval by the |
| 22 | host government of rates, charges, customer |
| 23 | classifications, terms of service, and changes to |
| 24 | financing; providing procedures for changes in rates, |
| 25 | charges, customer classifications, terms of service, and |
| 26 | financing; requiring notice of the proposed change; |
| 27 | providing for negotiations to resolve concerns of the host |
| 28 | government; providing for binding arbitration by the |
| 29 | commission; requiring the commission to develop and adopt |
| 30 | administrative rules governing the arbitration process and |
| 31 | establishing fees; requiring any transfer or payment by |
| 32 | the separate legal entity to a member or other local |
| 33 | government to be solely from user fees or other charges or |
| 34 | revenues generated from customers that are physically |
| 35 | located within the jurisdictional or service delivery |
| 36 | boundaries of the member or local government receiving the |
| 37 | transfer or payment; authorizing a host government to |
| 38 | acquire any utility or utility system that it hosts that |
| 39 | is owned by the separate legal entity; providing for |
| 40 | limitation of powers and authority of the separate legal |
| 41 | entity by the terms and conditions of the utility |
| 42 | acquisition agreement; amending s. 120.52, F.S.; revising |
| 43 | the definition of "agency" to include a separate legal |
| 44 | entity for purposes of the Administrative Procedure Act; |
| 45 | amending ss. 367.021 and 367.071, F.S.; revising the |
| 46 | definition of "governmental authority" to exclude a |
| 47 | separate legal entity for purposes of the Water and |
| 48 | Wastewater System Regulatory Law; creating s. 367.0813, |
| 49 | F.S.; clarifying state policy that gains or losses from a |
| 50 | purchase or condemnation of a utility's assets that |
| 51 | results in the loss of customers served by such assets and |
| 52 | the associated future revenue streams shall be borne by |
| 53 | the shareholders of the utility; providing for |
| 54 | severability; providing for application; providing an |
| 55 | effective date. |
| 56 |
|
| 57 | Be It Enacted by the Legislature of the State of Florida: |
| 58 |
|
| 59 | Section 1. Paragraph (g) of subsection (7) of section |
| 60 | 163.01, Florida Statutes, is amended to read: |
| 61 | 163.01 Florida Interlocal Cooperation Act of 1969.-- |
| 62 | (7) |
| 63 | (g)1. Notwithstanding any other provisions of this |
| 64 | section, any separate legal entity created under this section, |
| 65 | the membership of which is limited to municipalities and |
| 66 | counties of the state, may acquire, own, construct, improve, |
| 67 | operate, and manage public facilities, or finance facilities on |
| 68 | behalf of any person, relating to a governmental function or |
| 69 | purpose, including, but not limited to, wastewater facilities, |
| 70 | water or alternative water supply facilities, and water reuse |
| 71 | facilities, which may serve populations within or outside of the |
| 72 | members of the entity. Notwithstanding s. 367.171(7), any |
| 73 | separate legal entity created under this paragraph is not |
| 74 | subject to Public Service Commission jurisdiction unless the |
| 75 | host government or at least 10 percent of the customers of the |
| 76 | utility system being acquired file a petition with the |
| 77 | commission seeking approval of the acquisition of the utility |
| 78 | system by the separate legal entity and seeking binding |
| 79 | arbitration by the commission of proposed changes to the initial |
| 80 | or subsequent rates and charges of the separate legal entity. |
| 81 | The separate legal entity and may not provide utility services |
| 82 | within the service area of an existing utility system unless it |
| 83 | has received the consent of the utility. |
| 84 | 2. For purposes of this paragraph, the term: |
| 85 | a. "Host government" means either the governing body of |
| 86 | the county, if the largest number of equivalent residential |
| 87 | connections currently served by a system of the utility is |
| 88 | located in the unincorporated area, or the governing body of a |
| 89 | municipality, if the largest number of equivalent residential |
| 90 | connections currently served by a system of the utility is |
| 91 | located within that municipality's boundaries. |
| 92 | b. "Separate legal entity" means any entity created by |
| 93 | interlocal agreement the membership of which is limited to two |
| 94 | or more municipalities or counties of the state but which entity |
| 95 | is legally separate and apart from any of its member |
| 96 | governments. |
| 97 | c. "System" means each separate water or wastewater |
| 98 | facility providing service. |
| 99 | d. "Utility" means a water or wastewater utility and |
| 100 | includes every person, separate legal entity, lessee, trustee, |
| 101 | or receiver owning, operating, managing, or controlling a |
| 102 | system, or proposing construction of a system, who is providing, |
| 103 | or proposes to provide, water or wastewater service to the |
| 104 | public for compensation. |
| 105 | 3. A separate legal entity that seeks to acquire any |
| 106 | utility must notify the Public Service Commission and the host |
| 107 | government in writing by certified mail about the contemplated |
| 108 | acquisition not less than 30 days before any proposed transfer |
| 109 | of ownership, use, or possession of any utility assets by such |
| 110 | separate legal entity. The potential acquisition notice must be |
| 111 | provided to the legislative head of the governing body of the |
| 112 | host government and to its chief administrative officer and must |
| 113 | provide the name and address of a contact person for the |
| 114 | separate legal entity and information identified in s. |
| 115 | 367.071(4)(a) concerning the contemplated acquisition. |
| 116 | 4.a. Within 30 days following receipt of the notice, the |
| 117 | host government may adopt a resolution to become a member of the |
| 118 | separate legal entity, adopt a resolution to approve the utility |
| 119 | acquisition, adopt a resolution to prohibit the utility |
| 120 | acquisition by the separate legal entity if the host government |
| 121 | determines that the proposed acquisition is not in the public |
| 122 | interest, or request in writing an automatic 45-day extension of |
| 123 | the 30-day period in order to allow sufficient time for the host |
| 124 | government to evaluate the proposed acquisition. A resolution |
| 125 | adopted by the host government that prohibits the acquisition |
| 126 | may include conditions that would make the proposal acceptable |
| 127 | to the host government. |
| 128 | b. If a host government adopts a membership resolution, |
| 129 | the separate legal entity must accept the host government as a |
| 130 | member on the same basis as its existing members before any |
| 131 | transfer of ownership, use, or possession of the utility or the |
| 132 | utility facilities. If a host government adopts a resolution to |
| 133 | approve the utility acquisition, the two parties shall enter |
| 134 | into negotiations to complete the utility acquisition agreement. |
| 135 | If a host government adopts a prohibition resolution, the |
| 136 | separate legal entity may not acquire the utility within that |
| 137 | host government's territory without the specific consent of the |
| 138 | host government by future resolution. If a host government does |
| 139 | not adopt a prohibition resolution or an approval resolution, |
| 140 | does not provide a written request for an extension of the 30- |
| 141 | day notice period, and takes no action to initiate judicial |
| 142 | proceedings regarding the proposed acquisition, the separate |
| 143 | legal entity may proceed to acquire the utility after the 30-day |
| 144 | notice period without further notice. |
| 145 | c. Upon the filing of a petition by at least 10 percent of |
| 146 | the customers of the system being acquired, the Public Service |
| 147 | Commission shall consider whether the sale, assignment, or |
| 148 | transfer of the utility is in the public interest pursuant to |
| 149 | the provisions of s. 367.071(1). |
| 150 | 5. In addition to the host government's right to review as |
| 151 | fair and reasonable the rates, charges, customer |
| 152 | classifications, and terms of service that will be in place at |
| 153 | the time of acquisition, the host government has the right to |
| 154 | review and approve as fair and reasonable any later changes |
| 155 | proposed by the separate legal entity to the rates, charges, |
| 156 | customer classifications, and terms of service before adoption |
| 157 | by the separate legal entity. In addition, the host government |
| 158 | has the right to review and approve any changes to the financing |
| 159 | of such facilities that may result in increased costs to |
| 160 | customers. Such right of review and approval by the host |
| 161 | government is subject to the obligation of the separate legal |
| 162 | entity to establish rates and charges that comply with the |
| 163 | requirements contained in any resolution or trust agreement |
| 164 | relating to the issuance of bonds to acquire and improve the |
| 165 | affected utility and such right does not affect the obligation |
| 166 | of the separate legal entity to set rates at a level sufficient |
| 167 | to pay debt service on its obligations issued in relation to the |
| 168 | host government utility. |
| 169 | 6.a. In order to facilitate review of proposed changes by |
| 170 | the host government, the separate legal entity must notify the |
| 171 | host government in writing by certified mail about the proposed |
| 172 | changes not fewer than 90 days before it implements any changes. |
| 173 | The notice of proposed changes must be provided to the |
| 174 | legislative head of the governing body of each host government |
| 175 | and to its chief administrative officer and must provide the |
| 176 | name and address of a contact person for the separate legal |
| 177 | entity and information identified in s. 367.081(2)(a)1. as it |
| 178 | applies to publicly owned utilities about the proposed changes. |
| 179 | If, after review, the host government believes that the proposed |
| 180 | changes are in the public interest, the host government may pass |
| 181 | a resolution approving the proposed changes. If, after review, |
| 182 | the host government believes that the proposed changes are not |
| 183 | in the public interest, the host government may enter into |
| 184 | negotiation with the separate legal entity to resolve those |
| 185 | concerns. |
| 186 | b. If no agreement is reached within 30 days after the |
| 187 | host government's determination that the proposed changes are |
| 188 | not in the public interest, the host government or the separate |
| 189 | legal entity may request and, if requested, shall receive |
| 190 | binding arbitration services through the Public Service |
| 191 | Commission to resolve the dispute with the separate legal |
| 192 | entity. The commission shall develop and adopt administrative |
| 193 | rules governing the arbitration process and establishing fees |
| 194 | for this dispute-resolution service. The arbitration shall be |
| 195 | conducted by the commission within 90 days after the request by |
| 196 | the host government or the separate legal entity. The |
| 197 | commission's arbitration order shall ensure that the new rates |
| 198 | of the separate legal entity applicable to a specific host |
| 199 | government recover applicable costs of service, including costs |
| 200 | of financing, and provide for a reasonable rate of return. |
| 201 | 7. After the acquisition or construction of any utility |
| 202 | systems by a separate legal entity created under this paragraph |
| 203 | revenues or any other income may not be transferred or paid to a |
| 204 | member of a separate legal entity, or to any other county or |
| 205 | municipality, from user fees or other charges or revenues |
| 206 | generated from customers that are not physically located within |
| 207 | the jurisdictional or service delivery boundaries of the member, |
| 208 | county, or municipality receiving the transfer or payment. Any |
| 209 | transfer or payment to a member or other local government must |
| 210 | be solely from user fees or other charges or revenues generated |
| 211 | from customers that are physically located within the |
| 212 | jurisdictional or service delivery boundaries of the member or |
| 213 | local government receiving the transfer or payment. |
| 214 | 8. A host government may acquire any utility or utility |
| 215 | system that it hosts that is owned by the separate legal entity. |
| 216 | If the separate legal entity and the host government cannot |
| 217 | agree on the terms and conditions of the acquisition, the host |
| 218 | government may institute eminent domain proceedings under |
| 219 | chapters 73 and 74, as applicable. This paragraph is an |
| 220 | alternative provision otherwise provided by law as authorized in |
| 221 | s. 4, Art. VIII of the State Constitution for any transfer of |
| 222 | power as a result of an acquisition of a utility by a separate |
| 223 | legal entity from a municipality, county, or special district. |
| 224 | 9. The entity may finance or refinance the acquisition, |
| 225 | construction, expansion, and improvement of such facilities |
| 226 | relating to a governmental function or purpose through the |
| 227 | issuance of its bonds, notes, or other obligations under this |
| 228 | section or as otherwise authorized by law. Except as limited by |
| 229 | the terms and conditions of the utility acquisition agreement, |
| 230 | as approved by the applicable host government and subject to |
| 231 | approval by the Public Service Commission if a petition is filed |
| 232 | pursuant to subparagraph 1., the entity has all the powers |
| 233 | provided by the interlocal agreement under which it is created |
| 234 | or which are necessary to finance, own, operate, or manage the |
| 235 | public facility, including, without limitation, the power to |
| 236 | establish rates, charges, and fees for products or services |
| 237 | provided by it, the power to levy special assessments, the power |
| 238 | to sell or finance all or a portion of such facility, and the |
| 239 | power to contract with a public or private entity to manage and |
| 240 | operate such facilities or to provide or receive facilities, |
| 241 | services, or products. Except as may be limited by the |
| 242 | interlocal agreement under which the entity is created, all of |
| 243 | the privileges, benefits, powers, and terms of s. 125.01, |
| 244 | relating to counties, and s. 166.021, relating to |
| 245 | municipalities, are fully applicable to the entity. However, |
| 246 | neither the entity nor any of its members on behalf of the |
| 247 | entity may exercise the power of eminent domain over the |
| 248 | facilities or property of any existing water or wastewater plant |
| 249 | utility system, nor may the entity acquire title to any water or |
| 250 | wastewater plant utility facilities, other facilities, or |
| 251 | property which was acquired by the use of eminent domain after |
| 252 | the effective date of this act. Bonds, notes, and other |
| 253 | obligations issued by the entity are issued on behalf of the |
| 254 | public agencies that are members of the entity. |
| 255 | 10.2. Except as limited by the terms and conditions of the |
| 256 | utility acquisition agreement, as approved by the applicable |
| 257 | host government and subject to approval by the Public Service |
| 258 | Commission if a petition is filed pursuant to subparagraph 1., |
| 259 | any entity created under this section may also issue bond |
| 260 | anticipation notes in connection with the authorization, |
| 261 | issuance, and sale of bonds. The bonds may be issued as serial |
| 262 | bonds or as term bonds or both. Any entity may issue capital |
| 263 | appreciation bonds or variable rate bonds. Any bonds, notes, or |
| 264 | other obligations must be authorized by resolution of the |
| 265 | governing body of the entity and bear the date or dates; mature |
| 266 | at the time or times, not exceeding 40 years from their |
| 267 | respective dates; bear interest at the rate or rates; be payable |
| 268 | at the time or times; be in the denomination; be in the form; |
| 269 | carry the registration privileges; be executed in the manner; be |
| 270 | payable from the sources and in the medium or payment and at the |
| 271 | place; and be subject to the terms of redemption, including |
| 272 | redemption prior to maturity, as the resolution may provide. If |
| 273 | any officer whose signature, or a facsimile of whose signature, |
| 274 | appears on any bonds, notes, or other obligations ceases to be |
| 275 | an officer before the delivery of the bonds, notes, or other |
| 276 | obligations, the signature or facsimile is valid and sufficient |
| 277 | for all purposes as if he or she had remained in office until |
| 278 | the delivery. The bonds, notes, or other obligations may be sold |
| 279 | at public or private sale for such price as the governing body |
| 280 | of the entity shall determine. Pending preparation of the |
| 281 | definitive bonds, the entity may issue interim certificates, |
| 282 | which shall be exchanged for the definitive bonds. The bonds may |
| 283 | be secured by a form of credit enhancement, if any, as the |
| 284 | entity deems appropriate. The bonds may be secured by an |
| 285 | indenture of trust or trust agreement. In addition, the |
| 286 | governing body of the legal entity may delegate, to an officer, |
| 287 | official, or agent of the legal entity as the governing body of |
| 288 | the legal entity may select, the power to determine the time; |
| 289 | manner of sale, public or private; maturities; rate of interest, |
| 290 | which may be fixed or may vary at the time and in accordance |
| 291 | with a specified formula or method of determination; and other |
| 292 | terms and conditions as may be deemed appropriate by the |
| 293 | officer, official, or agent so designated by the governing body |
| 294 | of the legal entity. However, the amount and maturity of the |
| 295 | bonds, notes, or other obligations and the interest rate of the |
| 296 | bonds, notes, or other obligations must be within the limits |
| 297 | prescribed by the governing body of the legal entity and its |
| 298 | resolution delegating to an officer, official, or agent the |
| 299 | power to authorize the issuance and sale of the bonds, notes, or |
| 300 | other obligations. |
| 301 | 11.3. Bonds, notes, or other obligations issued under this |
| 302 | paragraph subparagraph 1. may be validated as provided in |
| 303 | chapter 75. The complaint in any action to validate the bonds, |
| 304 | notes, or other obligations must be filed only in the Circuit |
| 305 | Court for Leon County. The notice required to be published by s. |
| 306 | 75.06 must be published in Leon County and in each county that |
| 307 | is a member of the entity issuing the bonds, notes, or other |
| 308 | obligations, or in which a member of the entity is located, and |
| 309 | the complaint and order of the circuit court must be served only |
| 310 | on the State Attorney of the Second Judicial Circuit and on the |
| 311 | state attorney of each circuit in each county that is a member |
| 312 | of the entity issuing the bonds, notes, or other obligations or |
| 313 | in which a member of the entity is located. Section 75.04(2) |
| 314 | does not apply to a complaint for validation brought by the |
| 315 | legal entity. |
| 316 | 12.4. The accomplishment of the authorized purposes of a |
| 317 | legal entity created under this paragraph is in all respects for |
| 318 | the benefit of the people of the state, for the increase of |
| 319 | their commerce and prosperity, and for the improvement of their |
| 320 | health and living conditions. Since the legal entity will |
| 321 | perform essential governmental functions in accomplishing its |
| 322 | purposes, the legal entity is not required to pay any taxes or |
| 323 | assessments of any kind whatsoever upon any property acquired or |
| 324 | used by it for such purposes or upon any revenues at any time |
| 325 | received by it. The bonds, notes, and other obligations of an |
| 326 | entity, their transfer and the income therefrom, including any |
| 327 | profits made on the sale thereof, are at all times free from |
| 328 | taxation of any kind by the state or by any political |
| 329 | subdivision or other agency or instrumentality thereof. The |
| 330 | exemption granted in this subparagraph is not applicable to any |
| 331 | tax imposed by chapter 220 on interest, income, or profits on |
| 332 | debt obligations owned by corporations. |
| 333 | Section 2. Subsection (1) of section 120.52, Florida |
| 334 | Statutes, is amended to read: |
| 335 | 120.52 Definitions.--As used in this act: |
| 336 | (1) "Agency" means: |
| 337 | (a) The Governor in the exercise of all executive powers |
| 338 | other than those derived from the constitution. |
| 339 | (b) Each: |
| 340 | 1. State officer and state department, and each |
| 341 | departmental unit described in s. 20.04. |
| 342 | 2. Authority, including a regional water supply authority. |
| 343 | 3. Board. |
| 344 | 4. Commission, including the Commission on Ethics and the |
| 345 | Fish and Wildlife Conservation Commission when acting pursuant |
| 346 | to statutory authority derived from the Legislature. |
| 347 | 5. Regional planning agency. |
| 348 | 6. Multicounty special district with a majority of its |
| 349 | governing board comprised of nonelected persons. |
| 350 | 7. Educational units. |
| 351 | 8. Entity described in chapters 163, 373, 380, and 582 and |
| 352 | s. 186.504. |
| 353 | (c) Each other unit of government in the state, including |
| 354 | counties and municipalities, to the extent they are expressly |
| 355 | made subject to this act by general or special law or existing |
| 356 | judicial decisions. |
| 357 |
|
| 358 | This definition does not include any legal entity or agency |
| 359 | created in whole or in part pursuant to chapter 361, part II, |
| 360 | any metropolitan planning organization created pursuant to s. |
| 361 | 339.175, any separate legal or administrative entity created |
| 362 | pursuant to s. 339.175 of which a metropolitan planning |
| 363 | organization is a member, an expressway authority pursuant to |
| 364 | chapter 348, any legal or administrative entity created by an |
| 365 | interlocal agreement pursuant to s. 163.01(7), except those |
| 366 | created pursuant to s. 163.01(7)(g)1., unless any party to such |
| 367 | agreement is otherwise an agency as defined in this subsection, |
| 368 | or any multicounty special district with a majority of its |
| 369 | governing board comprised of elected persons; however, this |
| 370 | definition shall include a regional water supply authority. |
| 371 | Section 3. Subsection (7) of section 367.021, Florida |
| 372 | Statutes, is amended to read: |
| 373 | 367.021 Definitions.--As used in this chapter, the |
| 374 | following words or terms shall have the meanings indicated: |
| 375 | (7) "Governmental authority" means a political |
| 376 | subdivision, as defined by s. 1.01(8), a regional water supply |
| 377 | authority created pursuant to s. 373.1962, or a nonprofit |
| 378 | corporation formed for the purpose of acting on behalf of a |
| 379 | political subdivision with respect to a water or wastewater |
| 380 | facility; however, this definition shall exclude a separate |
| 381 | legal entity created pursuant to s. 163.01(7)(g)1. |
| 382 | Section 4. Subsections (1) and (4) of section 367.071, |
| 383 | Florida Statutes, are amended to read: |
| 384 | 367.071 Sale, assignment, or transfer of certificate of |
| 385 | authorization, facilities, or control.-- |
| 386 | (1) A No utility may not shall sell, assign, or transfer |
| 387 | its certificate of authorization, facilities or any portion |
| 388 | thereof, or majority organizational control without |
| 389 | determination and approval of the commission that the proposed |
| 390 | sale, assignment, or transfer is in the public interest and that |
| 391 | the buyer, assignee, or transferee will fulfill the commitments, |
| 392 | obligations, and representations of the utility. However, a |
| 393 | sale, assignment, or transfer of its certificate of |
| 394 | authorization, facilities or any portion thereof, or majority |
| 395 | organizational control may occur prior to commission approval if |
| 396 | the contract for sale, assignment, or transfer is made |
| 397 | contingent upon commission approval. |
| 398 | (4) An application shall be disposed of as provided in s. |
| 399 | 367.045, except that: |
| 400 | (a) The sale of facilities, in whole or part, to a |
| 401 | governmental authority, as defined in s. 367.021(7), shall be |
| 402 | approved as a matter of right; however, the governmental |
| 403 | authority shall, prior to taking any official action, obtain |
| 404 | from the utility or commission with respect to the facilities to |
| 405 | be sold the most recent available income and expense statement, |
| 406 | balance sheet, and statement of rate base for regulatory |
| 407 | purposes and contributions-in-aid-of-construction. Any request |
| 408 | for rate relief pending before the commission at the time of |
| 409 | sale is deemed to have been withdrawn. Interim rates, if |
| 410 | previously approved by the commission, must be discontinued, and |
| 411 | any money collected pursuant to interim rate relief must be |
| 412 | refunded to the customers of the utility with interest. |
| 413 | (b) When paragraph (a) does not apply, the commission |
| 414 | shall amend the certificate of authorization as necessary to |
| 415 | reflect the change resulting from the sale, assignment, or |
| 416 | transfer. |
| 417 | Section 5. Section 367.0813, Florida Statutes, is created |
| 418 | to read: |
| 419 | 367.0813 Gain or loss on purchase or condemnation by |
| 420 | governmental authority.--In order to provide appropriate |
| 421 | incentives to encourage the private sector to participate in the |
| 422 | investment in water and wastewater infrastructure, to protect |
| 423 | private-sector property rights of a utility's shareholders, and |
| 424 | to avoid additional burden of costs placed on ratepayers by |
| 425 | relitigating this issue, the Legislature affirms and clarifies |
| 426 | the clear policy of this state that gains or losses from a |
| 427 | purchase or condemnation of a utility's assets that results in |
| 428 | the loss of customers served by such assets and the associated |
| 429 | future revenue streams shall be borne by the shareholders of the |
| 430 | utility. This section shall apply to all transactions prior to |
| 431 | and after the effective date of this section. |
| 432 | Section 6. If any provision of this act or its application |
| 433 | to any person or circumstance is held invalid, the invalidity |
| 434 | does not affect other provisions or applications of this act |
| 435 | which can be given effect without the invalid provision or |
| 436 | application, and to this end the provisions of this act are |
| 437 | declared severable. |
| 438 | Section 7. This act shall take effect upon becoming a law |
| 439 | and shall apply to all contracts pending on that date. |