LRB-5116/1
KSH:jlg:km
1997 - 1998 LEGISLATURE
March 17, 1998 - Introduced by Representatives F. Lasee, Gard, Hutchison,
Porter, Owens, Hoven, Ott, Ryba, Vander Loop, Green, Kelso, Ladwig,
Ainsworth, Ziegelbauer and Vrakas, cosponsored by Senators Cowles,
Drzewiecki, A. Lasee, Shibilski and Roessler. Referred to Committee on
Environment.
AB919,1,4
1An Act to renumber and amend 196.01 (5);
to amend 32.05 (intro.), 32.05 (1)
2(a), 32.07 (2), 70.11 (2), 71.26 (1) (b) and 196.52 (3) (b) 1.; and
to create 66.0735,
377.54 (9a) (em) and 196.01 (5) (b) of the statutes;
relating to: permitting the
4creation of joint local water authorities and granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill authorizes the creation of a joint local water authority (an "authority").
The bill specifies how an authority may be organized, what powers the authority has,
and how an authority is regulated:
Organization
Under the bill, a local governmental unit in the state may contract with one or
more local governmental units in this state, or with state or federally recognized
Indian tribes or bands in this state, to establish an authority. Under the bill, local
governmental unit is defined to mean a city, village, town, county, town sanitary
district, water utility district or certain public inland lake protection and
rehabilitation districts. At least 30 days before entering into a contract to establish
or join a joint local water authority, a local governmental unit shall hold a public
hearing on the proposed agreement. An authority established by this contract is a
governmental entity that is separate from the contracting powers and is a separate
political subdivision and body public and corporate of this state. The authority is
exempt from state sales, property and income taxes.
In order to create an authority, the contracting parties must file a copy of the
contract with the secretary of state, who is required to record the contract and issue
a certificate of incorporation stating the name of the authority and the date and fact
of incorporation. The contract filed with the secretary of state must include certain
specified information including the name of the authority; the number of directors,
their terms and compensation; voting requirements; the manner of selecting officers;
the manner in which other local governmental units or Indian tribes or bands may
join the authority; provisions for the disposition of property upon dissolution; the
term of the contract; and provisions governing dispute resolution. Each contracting
party is required to have an equal number of directors, although the directors may
be given different voting power, if the formula for determining voting power is
specified in the contract. The term of the contract may be for a definite period or may
be until the contract is rescinded or terminated. The contract may not be rescinded
or terminated as long as the authority has bonds outstanding, unless provision for
the full payment of the bonds is made pursuant to the terms of the bonds or the
resolution, trust indenture or security instrument securing the bonds.
Powers
The bill grants an authority a range of powers, but does not give the authority
to tax. In general, an authority may do all of the following: 1) construct, operate and
manage facilities in this state for the production treatment, storage, transmission
and sale of water, either solely or in conjunction with others; 2) act as agent in
constructing, operating or managing these facilities; 3) buy or sell interests in or
rights in these facilities; 4) produce, treat, store, transmit, purchase and sell water,
except that the authority may not sell water to persons other than contracting
parties, except pursuant to emergency services agreements; 5) buy and sell property;
6) acquire property using condemnation procedures; 7) install and maintain, without
compensation to the state, facilities under river beds and land covered by navigable
waters of the state; 8) enter on other public property for the purpose of installing,
maintaining and operating the authority's facilities; 9) require contracting parties
to purchase water from the authority and to connect its distribution system with the
authority's distribution system; 10) employ agents and employes; and 11) exercise
any other power that the board of directors considers necessary and convenient to
effectuate the purposes of the authority. The authority may invest its funds in the
obligations, securities and other investments that authority deems proper, subject
to the investment restrictions that are generally applicable to local governmental
units.
In addition to these express powers, the bill contains language specifically
authorizing the authority to enter into particular types of purchase agreements with
the contracting parties. These purchase agreements may include: 1) provisions
requiring the purchaser to make payments in amounts that are sufficient to enable
the authority to meet expenses, interest and principal payments; 2) provisions
requiring the purchaser to pay for water regardless of whether water is delivered to
the purchaser or whether any project contemplated by the agreement is completed;
and 3) provisions requiring that, if one or more of the purchasers defaults in the
payment of its obligations under a purchase agreement, the remaining purchasers
are required to accept and pay for, water that was to have been purchased by the
defaulting purchaser. In addition, the contracting parties may agree to pay the
authority for commodities procured or services rendered by the authority. This
agreement may also provide for payments to the authority in the form of
contributions.
Lastly, the authority is given the power to incur debts, liabilities or obligations,
including the issuance of secured or unsecured bonds. The authority may issue the
types of bonds it determines, subject only to any agreement with bond holders. The
principal and interest on the bonds are payable exclusively from all or a portion of
the revenues of the authority. The bonds of the authority is not a debt of the
contracting parties and the contracting parties are not liable for the payment of the
bonds. The bonds of the authority are required to state these restrictions on liability
on the face of the bonds. The bonds may be sold at public or private sales and may
have the dates, mature at the times, bear interest at the rates, be in the
denominations and have the rank or priority specified by the bond resolution, trust
indenture or other security instrument. The authority is given broad authority to
make covenants in connection with the issuance of bonds. The authority may also
issue refunding bonds, subject generally to the provisions governing the issuance of
other bonds of the authority. The bonds may be invested in by the state and its
political subdivisions, insurance companies, certain financial institutions and
trustees and other fiduciaries.
Regulation
The authority may not sell water at retail and is not generally subject to
regulation as a public utility. Under the bill, arrangements between public utilities
and authorities are not subject to provisions in current law which govern
transactions between public utilities and their affiliated interests. The authority
may not issue bonds for the construction of a project until the public service
commission (PSC) has certified that public convenience and necessity require the
project. No such certification is needed if no bonds are issued by the authority for
the project. The PSC may refuse to certify a project if the PSC determines that the
project will: 1) substantially impair the efficiency of the service of a contracting
party's public utility; 2) provide facilities unreasonably in excess of probable future
requirements; or 3) add to the cost of service without proportionately increasing the
value or available quantity of service.
The bill generally requires the authority to comply with all local ordinances,
unless the authority's board of directors determines that the ordinance imposes
unreasonable requirements, costs or delays on the authority's ability to carry out its
responsibilities. If the board of directors of an authority make this determination,
the board is required to pass a resolution specifying the ordinance, indicating why
it is unreasonable and how the authority intends to deviate from the ordinance. The
bill provides for notice to the county or municipality whose ordinance is identified in
the resolution and for a 90-day period in which to challenge the authority's
determination. If the determination of the authority either is not challenged or is
upheld, the authority may deviate from the local ordinance in the manner specified
in the resolution. The bill does not authorize the authority to deviate from floodplain
or shoreland zoning ordinances.
This bill will be referred to the joint survey committee on tax exemptions for a
detailed analysis, which will be printed as an appendix to this bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB919, s. 1
1Section
1. 32.05 (intro.) of the statutes is amended to read:
AB919,5,3
232.05 Condemnation for sewers and transportation facilities. (intro.)
3In this section, "mass transit facility" includes, without limitation because of
4enumeration, exclusive or preferential bus lanes if those lanes are limited to
5abandoned railroad rights-of-way or existing expressways constructed before May
617, 1978, highway control devices, bus passenger loading areas and terminal
7facilities, including shelters, and fringe and corridor parking facilities to serve bus
8and other public mass transportation passengers, together with the acquisition,
9construction, reconstruction and maintenance of lands and facilities for the
10development, improvement and use of public mass transportation systems for the
11transportation of passengers. This section does not apply to town highways created
12or altered under ch. 80 except as to jury trials on appeals under ss. 80.24 and 80.25,
13nor to proceedings in 1st class cities under subch. II. In any city, condemnation for
14housing under ss. 66.40 to 66.404, or for urban renewal under s. 66.431, may proceed
15under this section or under s. 32.06 at the option of the condemning authority.
16Condemnation by a local exposition district under subch. II of ch. 229 for any
17exposition center or exposition center facility may proceed under this section or
18under s. 32.06 at the option of the local exposition district. All other condemnation
19of property for public alleys, streets, highways, airports, mass transit facilities, or
20other transportation facilities, gas or leachate extraction systems to remedy
1environmental pollution from a solid waste disposal facility,
or storm sewers and
2sanitary sewers
or, watercourses
or water transmission and distribution facilities 3shall proceed as follows:
AB919, s. 2
4Section
2. 32.05 (1) (a) of the statutes is amended to read:
AB919,5,225
32.05
(1) (a) Except as provided under par. (b), the county board of supervisors
6(or the county highway committee when so authorized by the
county board
) of
7supervisors, city council, village board, town board, sewerage commission governing
8metropolitan sewerage district created by ss. 66.22 or 66.88 to 66.918, secretary of
9transportation, a commission created by contract under s. 66.30,
a joint local water
10authority created by contract under s. 66.0375, housing authority under ss. 66.40 to
1166.404, local exposition district created under subch. II of ch. 229, redevelopment
12authority under s. 66.431 or community development authority under s. 66.4325
13shall make an order providing for the laying out, relocation and improvement of the
14public highway, street, alley, storm and sanitary sewers, watercourses,
water
15transmission and distribution facilities, mass transit facilities, airport, or other
16transportation facilities, gas or leachate extraction systems to remedy
17environmental pollution from a solid waste disposal facility, housing project,
18redevelopment project, exposition center or exposition center facilities which shall
19be known as the relocation order. This order shall include a map or plat showing the
20old and new locations and the lands and interests required. A copy of the order shall,
21within 20 days after its issue, be filed with the county clerk of the county wherein the
22lands are located.
AB919, s. 3
23Section
3. 32.07 (2) of the statutes is amended to read:
AB919,6,824
32.07
(2) The petitioner shall determine necessity if application is by the state
25or any commission, department, board or other branch of state government or by a
1city, village, town, county, school district, board, commission, public officer,
2commission created by contract under s. 66.30,
joint local water authority under s.
366.0735, redevelopment authority created under s. 66.431, local exposition district
4created under subch. II of ch. 229, housing authority created under ss. 66.40 to
566.404 or for the right-of-way of a railroad up to 100 feet in width, for a telegraph,
6telephone or other electric line, for the right-of-way for a gas pipeline, main or
7service or for easements for the construction of any elevated structure or subway for
8railroad purposes.
AB919, s. 4
9Section
4. 66.0735 of the statutes is created to read:
AB919,6,20
1066.0735 Joint local water authorities. (1) Finding and declaration of
11necessity. It is declared that the operation of water utility systems by local
12governmental units of this state and the improvement of the systems through joint
13action in the production, treatment, storage, transmission, distribution, purchase,
14sale and exchange of water is in the public interest and a matter of statewide concern;
15that there is a need in order to ensure the stability and continued viability of the local
16systems to provide for a means by which local governmental units which operate the
17systems may act jointly, including development of coordinated water production,
18treatment, storage, transmission and distribution; and that, the necessity in the
19public interest for the provisions of this section is declared as a matter of legislative
20determination.
AB919,6,22
21(2) Definitions. As used in this section, unless the context clearly indicates
22otherwise:
AB919,6,2323
(a) "Authority" means a joint local water authority.
AB919,6,2524
(b) "Bonds" means any bonds, interim certificates, notes, debentures or other
25obligations of an authority issued under this section.
AB919,7,1
1(c) "Commission" means the public service commission.
AB919,7,42
(d) "Contracting party" means a local governmental unit in this state, or a
3federally recognized Indian tribe or band located in this state, that contracts to
4establish or to join an authority under this section.
AB919,7,75
(e) "Local governmental unit" means any city, village, town, county, town
6sanitary district, water utility district, or a public inland lake protection and
7rehabilitation district that has town sanitary district powers under s. 33.22 (3).
AB919,7,98
(f) "Local water authority" means a public corporation created by contract
9between 2 or more contracting parties.
AB919,7,1610
(g) "Project" means any plant, works, system, facilities and real and personal
11property of any nature, together with all parts and appurtenances, that are used or
12useful in the production, treatment, storage, transmission, distribution, purchase,
13sale, or exchange of water. "Project" includes any interest in, or right to the capacity
14of, the plant, works, system, facilities or property. "Project" also includes the
15acquisition of water and the acquisition, construction or operation of facilities for
16producing, treating, storing, transmitting, or distributing water.
AB919,7,23
17(3) Creation of an authority. (a)
Creation by contract. Any local governmental
18unit in this state may contract with one or more local governmental units in this state
19or federally recognized Indian tribes or bands located in the state to establish a
20separate governmental entity, to be known as a joint local water authority, to jointly
21produce, treat, store, transmit, distribute, purchase, sell or exchange water, in whole
22or in part for the benefit of the contracting parties. The parties to the contract may
23amend the contract as provided in the contract.
AB919,8,224
(am)
Hearing requirements. At least 30 days before becoming a contracting
25party by entering into a contract under this subsection, a local governmental unit
1shall hold a public hearing on the proposed contract. Notice of the hearing shall be
2published as a class 3 notice under ch. 985.
AB919,8,73
(b)
Filing requirements. The parties entering into a contract under this
4subsection shall file a copy of the contract with the secretary of state. Upon receipt,
5the secretary of state shall record the contract and issue a certificate of incorporation
6stating the name of the authority and the date and fact of incorporation. The
7corporate existence of the authority begins upon issuance of the certificate.
AB919,8,9
8(4) Contract. A contract establishing an authority under sub. (3) shall specify
9all of the following:
AB919,8,1210
(a) The name and purpose of the authority and the functions or services to be
11provided by the authority. The name shall refer to the authority as an agency,
12authority or district.
AB919,8,1613
(b) The establishment and organization of a board of directors, in which all
14powers of the authority shall be vested. The contract may permit the board of
15directors to create an executive committee of the board of directors to which the board
16of directors may delegate any of its powers and duties, as specified by the board.
AB919,8,2117
(c) The number of directors, the manner of their appointment, the terms of their
18office, their compensation, if any, and the procedure for filling vacancies on the board
19of directors. The contracting parties shall appoint the members of the board of
20directors. Each contracting party shall be entitled to appoint an equal number of
21directors to the board of directors and may remove those directors at will.
AB919,8,2522
(d) The weight given to each director's vote. Unless specifically provided
23otherwise, each director's vote shall be given equal weight. If the contract provides
24for differing weights to be given to each director's vote, the contract shall specify the
25manner of calculating the weight to be given to each director's vote.
AB919,9,1
1(e) The manner of selection of the officers of the authority and their duties.
AB919,9,62
(f) The voting requirements for action by the board of directors. Unless
3specifically provided otherwise, a majority of the authorized directors constitutes a
4quorum of the board of directors. Unless specifically provided otherwise, a majority
5of the voting power present is necessary for any action to be taken by the board of
6directors.
AB919,9,97
(g) The duties of the board of directors, including the obligation to comply with
8this section and the laws of this state and with the terms of the contract under this
9subsection.
AB919,9,1110
(h) The manner in which additional local governmental units and Indian tribes
11or bands located in the state may become parties to the contract by amendment.
AB919,9,1312
(i) Provisions for the disposition, division or distribution of any property or
13assets of the authority on dissolution.
AB919,9,1914
(j) The term of the contract and the method, if any, of terminating or rescinding
15the contract. The term of the contract may be a definite period or it may be until
16rescinded or terminated. The contract may not be rescinded or terminated so long
17as the authority has bonds outstanding, unless provision for full payment of such
18bonds, by escrow or otherwise, has been made pursuant to the terms of the bonds or
19the resolution, trust indenture or security instrument securing the bonds.
AB919,9,2020
(k) The manner in which the contracting parties shall resolve any disputes.
AB919,9,21
21(5) Powers. The authority may do all of the following:
AB919,9,2422
(a) Plan, develop, acquire, construct, reconstruct, operate, manage, dispose of,
23participate in, maintain, repair, extend or improve one or more projects within the
24state, either solely or in conjunction with any other person.
AB919,9,2525
(b) Act as agent in conducting an activity under par. (a).
AB919,10,1
1(c) Buy or sell interest in, or rights to the capacity of, projects.
AB919,10,92
(d) Produce, treat, store, transmit, distribute, purchase, sell or exchange water
3in such amounts as the board of directors determines to be necessary and
4appropriate, subject to the limitations in this paragraph. An authority may not sell
5water at retail. An authority may not sell any water to a person other than a
6contracting party, except pursuant to an emergency services contract. An authority
7may enter into an emergency services contract to sell water at wholesale to a person
8other than a contracting party in emergency situations, to be specified in the
9contract.
AB919,10,1210
(e) Acquire, own, hold, use, lease as lessor or lessee, sell or otherwise dispose
11of, mortgage, pledge, or grant a security interest in any real or personal property,
12commodity or service.
AB919,10,1413
(f) Acquire property by condemnation using the procedure under s. 32.05 or
1432.06 for the purposes set forth in this section.