Problems and Approaches
to
Areawide Water Quality Management
APPENDIX A
Suggested Representative
or
Model Legislation
A Report Published
By the School ot Public and Environmental Affairs.
Indiana University, Bloomington, Indiana 47101
for the
Water Planning Division
Environmental Protection Agency
October 1973
Contract Number 68-01-0199
V^\ IP
>:'V%^':
^^s^-
-------
Problems and Approaches
to
Areawide Water Quality Management
APPENDIX A
by
School of Public and Environmental Affairs
Indiana University
for the
Water Planning Division
Environmental Protection Agency
Contract Number 68-01-0199
October 1973
-------
EPA Review Notice
This report has been reviewed by the Environmental
Protection Agency and approved for publication.
Approval does not signify that the contents necessarily
reflect the views and policies of the Environmental
Protection Agency, nor does mention of trade names or
commercial products constitute endorsement or recommenda-
tion for use.
- 11 -
-------
ABSTRACT
This report delineates some of the legal and management prob-
lems which emerged from a legal and administrative review of
the implementation of §208(c)(2) and its relationship with
§208 (b) (2) (C) of the Federal Water Pollution Control Act of
1972 (Act). The study on which the report is based is the
result of a fifteen (15) month effort that included a review
and analysis of state laws in the U.S. and an assessment of
a selected sample of wastewater management organizations of
varying areal jurisdictions. The study consists of a main
report with two appendices separately bound plus an executive
summary.
The review and analysis of the laws of the fifty states
focused on (a) whether the organizations empowered to manage
wastewater treatment facilities currently have adequate
authority to qualify for federal assistance under the Act
and (b) the authority to implement the organizational arrange-
ments and policies described in Sections V and VI of the
report.
A selected group of existing management organizations were
examined as a means of (a) identifying and describing prob-
lems that may emerge in establishing wastewater management
agencies in accordance with the provisions of the Act, and
(b) developing alternative management models capable of
satisfying the performance criteria developed in this report.
The primary focus of §208(b)(2)(C) is on two innovations in
wastewater management: (1) adequate authority to manage
wastewater activities on an areawide basis significantly
broader than those currently operating, and (2) capability
and authority to undertake water quality planning and manage-
ment through control over point and nonpoint pollution sources
and the control of the location of wastewater treatment facil-
ities and other discharge sources.
- 111 -
-------
ACKNOWLEDGMENTS
Professors Richard S. Howe and Nicholas L. White of Indiana
University School of Public and Environmental Affairs and
School of Law, respectively, directed the substantive work of
this project and take editorial responsibility for preparing
the final report.
Participating in the research and in the preparation of this
report were senior researchers George A. Fruit, J.D., and
Michael R. Gill, M.P.A., and researchers Gary Brown, Sandra
Dukes, Walter Hasenmuller, Nina Hatfield, F. James Helms,
Steven Johnson, David Mallon, Robert McConnell, John McGee,
Cliff Potter, John Sharpe, William D. Welty, all from the
Bloomington Campus of Indiana University.
A number of individuals provided advice and counsel during
the study. The Board of Advisors to the project was comprised
of Elwood Barce, Vice President, Paul D. Speer and Associates,
Chicago, Illinois; Blair T. Bower, Associate Director, Quali-
ty of the Environmental Program, Resources for the Future,
Washington, D. C.; N. William Hines, J. D., Professor of Law,
University of Iowa; Thomas McKewan, Director, Environmental
Service, State of Maryland, Annapolis, Maryland; John G.
Morris, President, J. G. Morris Environmental Engineering
Associates, Wheaton, Illinois.
In addition, consulted regarding particular aspects of the
study were Irving K. Fox, Director, Westwater Resources
Center, University of British Columbia, Vancouver, British
Columbia; Anthony H. J. Dorcey, Assistant to the Director,
Westwater Resources Center, University of British Columbia,
Vancouver, British Columbia; Wayne Echelberger, Ph.D.,
Professor, School of Public and Environmental Affairs,
Indiana University, South Bend; and Robert H. Maynard, LLM,
Attorney, Smith and Schanke, Dayton, Ohio (formerly legis-
lative assistant to the United States Senator Thomas Eagleton)
Administrative and technical support for the project was pro-
vided by the Division of Research of the School of Public
and Environmental Affairs. Mr. Ralph K. Jones, Associate
Director of the Division, managed this aspect of the project.
Gary P. Simmons, Ed.D., and Gary J. Scrimgeour, Ph.D., pro-
vided editorial support in the development of the final re-
port and made major contributions to the design of the Exe-
cutive Summary. Donald M. Goldenbaum, Ph.D., assisted with
the mail survey. Fred N. Fromm and Cynthia Williams co-
ordinated publication activities related to the project.
- v -
-------
Individuals from whom information was requested were general-
ly most cooperative and in particular instances went beyond
the call of duty. We appreciate these efforts on our behalf,
Bernard R. Hyde, Jr., Project Officer for the U. S. Environ-
mental Protection Agency responded promptly to our requests
for information and generally facilitated the completion of
this project. David A. Eberly succeeded Mr. Hyde as project
officer in the later stages of the work and he was very help-
ful in bringing the project to a close -
- vi -
-------
APPENDIX A
TABLE OF CONTENTS
PART ONE Page
1.0 INTRODUCTION l
PART TWO
2.0 SUGGESTED LEGISLATION TO COMPLY WITH
§208(c) (2) (C) 3
2.1 Authority Directly or by Contract, to Design
and Construct New Works and to Operate and
Maintain New and Existing Works as Required
by Any Areawide Plan. [ § 20 8 (c) (2) (C) ] 3
A. Definition of "Treatment Works" 3
B. Short Definition of "Treatment Works". ... 4
C. Authorization to Accept Wastes and Serve
Users Beyond Political Jurisdiction 4
D. Alternative Provision for Accepting
Wastes 4
2.2 Authority to Accept and Utilize Grants, or
Other Funds from Any Source, for Waste Treat-
ment Management Purposes. [§208 (c) (2) (D)] . . . 5
A. Non-diversion Provision 5
B. Grant Acceptance Act (Long Form) 5
C. Grant Acceptance Act (Short Form) 7
D. Alternative Grant Acceptance Act 7
2.3 Authority to Raise Revenues, Including the As-
sessment of Waste Treatment Charges. [§208
(c) (2) (E)] 8
2.3.1 Each Category of User Will Pay Its
Proportionate Share of the Costs of
Operation and Maintenance (Including
Replacement) of Any Waste Treatment
Services Provided by the Agency
[§204(b) (1) (A) ] 8
A. Proportionate Charging Provision g
B. Alternative Proportionate Charging
Provision I g
C. Alternative Proportionate Charging
Provision II
- vi i -
-------
Page
2.3.2 Full Recovery Will Be Had from the In-
dustrial Users of the Waste Treatment
Works of the Federal Portion of the
Construction Costs of Treatment Works
Reasonably Attributable to Treatment
of Such Industrial Wastes. [§204
(b) (1) (B)] 9
A. Recovery of Industrial Portion of Con-
struction Costs Provision 9
B. Alternative Provision for Recovery of
Construction Costs from Industry . 10
C. Provision for Transferability by Indus-
trial User of Right or Permit to Discharge ... 10
D. Provision Permitting Management Agency
to Reallocate Industrial Users' Rights
to Discharge and Reapportioning Indus-
trial Cost Recovery 11
2.4 Authority to Incur Short- and Long-Term
Indebtedness. [§208 (c) (2) (F) ] ........... 11
A. Borrowing in Anticipation of State or
Federal Aid Provision. . 12
B. Interim Financing Pending Issuance of
Definite Bonds 13
C. Funding Through or by State Level Waste
Management Agencies. .... .13
1. Maryland Environmental Service .14
2. New York State Environmental
Facilities Corporation .29
2,5 Authority to Assure in Implementation of
Its Waste Treatment Management Plan That Each
Participating Community Pay Its Proportionate
Share of Treatment Costs. [§208 (c) (2) (G) ] 36
A. Apportionment of Costs Among Commun-
ities Provision 37
B. Provision for Proportionate Rates for
Communities Which Jointly Own and
Operate Treatment Works 37
C. Provision for a Separate Agency to
Serve Several Communities. . 38
D. Definition of "Cost of Treatment". ....... 39
2.6 Authority to Refuse to Receive Any Wastes
from Any Municipality or Subdivision Thereof,
Which Does Not Comply With Any Provisions
of an Approved Plan Under §202 Applicable
to Such Area. [§208 (c) (2) (H)] 39
A. Wastewater Control Provision 40
- vi11 -
-------
Page
2.7 Authority to Accept for Treatment Industrial
Wastes. [§208(c) (2) (I)] 44
A. Provision for Supervision and Regulation
of Sewage Disposal (Including Industrial
Wastes) 44
B. Provision Authorizing Acceptance of
Industrial Wastes 46
2.8 Interlocal Cooperation Among Agencies 46
2.8.1 Interlocal Contracts and Agreements 47
A. Interlocal Cooperation and Joint
Enterprises 48
B. Interlocal Cooperation Act 52
C. Interlocal Contracts and Agreements
for Waste Treatment Only 58
2.8.2 Metropolitan (Multi-Community)
Special Districts 59
A. Metropolitan Special Districts 59
2.9 State or Agency "Take-Over" of Noncomply-
ing Communities' Facilities 74
A. Provision Authorizing Agency to
"Take-Over" Operation of Noncomplying
Municipality's Facilities 74
B. Alternative Provision Authorizing
State-Level Agency to "Take-Over
Operations 76
C. Provision Authorizing Local Agency to
"Take-Over" Operation of a Municipality's
Facilities 76
2.10 Denial of State Funds for Failure to Comply
with the Areawide Plan 77
A. Provision for Denial of State Funds 77
B. Alternative Provision for Denial of
State Funds 78
PART THREE
3.0 Suggested Legislation for Land Use Controls 79
A. Enabling Act Which Includes Environ-
mental Concerns 79
B. Location of Commercial and Industrial
Developments to Minimize Pollution 80
C. Protection of Waters Through Planning
and Zoning 84
D. Natural Resources Planning in Coastal
Zones 89
- ix -
-------
3.1 Permits and Licenses 91
A. Permit System for Regulating Animal
Feedlots 92
B. Surface Mining Permits for Control
of Water Pollution 96
C. Provision for Licensing of Wastewater
Treatment Personnel 99
3.2 Non-Point Source Control . 102
A. Provision for Soil Erosion and Sediment
Control 102
B. Provision for Control of Non-Point
Construction Runoff .108
3.3 Pricing Mechanisms 109
A. Provision for Use of Effluent Charges no
- x -
-------
APPENDIX A
SUGGESTED REPRESENTATIVE OR MODEL LEGISLATION
PART ONE
1.0 INTRODUCTION
The purpose of this appendix is to set forth samples or models
of legislation which might be enacted by the states to facili-
tate compliance with the requirement of §208(c) (2) and related
sections of the Federal Water Quality Control Act Amendments
of 1972 (the Act).
In Part Two, the paragraph numbering system corresponds with
that used in Appendix B (Format for State Reports and the
State Reports) and follows in sequence § § 208 (c) (2) (C) through
(I) of the Act. As an example, if the state report indicates
a need or desirability of legislation to comply with a problem
discussed in paragraph 2.1 (authority to construct and operate
treatment works) of the state report, paragraph 2.1 of this
appendix provides a possible legislative solution. The matters
to which this suggested legislation relates are discussed in
Section IV of the report, "Problems and Approaches to Areawide
Water Quality Management."
Following these paragraphs (2.1 through 2.7 in Part Two) which
correspond with the State Reports and Format, additional sections
will be found that deal with interlocal cooperation among local
units of government and authority of a state or agency to take
over operation of a defaulting or non-complying agency or com-
munity. The interlocal cooperation section, while not directly
corresponding to a problem section of the State Reports, is
nevertheless pertinent because such acts facilitate execution
of the various agencies' appropriate portions of an areawide plan.
The "take over" legislation is important to assure compliance
with the areawide plan and to encourage interlocal cooperation.
In Part Three, the suggested legislation is concerned with meeting
the requirements of § 208 (b) (2) (C) and §201(c) as such deal with
land use controls and other measures which have impact on the
water quality program of an area. The matters to which this
suggested legislation relates are discussed in Section VIII of
the report, "Problems and Approaches to Areawide Water Quality
Management."
- 1 -
-------
Preceding each section of suggested legislation in this ap-
pendix is a statement of the specific purpose of the legis-
lation. Much of the suggested legislation is taken from
existing laws of various states and model legislation. These
sources and all other sources are listed at the conclusion
of each portion of suggested legislation.
- 2 -
-------
PART TWO
2.0 SUGGESTED LEGISLATURE TO COMPLY WITH §208(c) (2) (C) .
2.1 Authority Directly or by Contract, to Design and Construct
New Works and to Operate and Maintain New and Existing
Works as Required by Any Areawide Plan. [§208(c) (2) (C) ] .
As noted in the Format to State Reports (Part 2.1, Appendix
B) this required authority presents few, if any, legal prob-
lems. The following legislation is suggested for the purpose
of expanding the state concept of treatment works to adhere
more closely to the concepts of the Act and to authorize, if
necessary, the waste treatment management agency to construct,
own and operate a "treatment works" other than the conventional,
end-of-the pipe treatment plant. These definitions could in-
clude such diverse practices and systems as instream aeration
and recycling processes as well as conventional treatment plants
A. DEFINITION OF TREATMENT WORKS.
Purpose: Provide a broad definition of "treatment
works."
Definition of "treatment works":
"(A) The term 'treatment works' means any [publicly owned]
devices and systems used in the storage, treatment, recycling,
and reclamation of municipal sewage or industrial wastes of a
liquid nature to restore and maintain the chemical, physical
and biological integrity of the state's waters, or necessary
to recycle or reuse water at the most economical cost over the
estimated life of the works, including intercepting sewers,
outfall sewers, sewage collection systems, pumping, power,
and other equipment, and their appurtenances; extensions, im-
provements, remodeling, additions, and alterations thereof;
elements essential to provide a reliable recycled supply such
as standby treatment units and clear well facilities; and any
works, including site acquisition of the land that will be an
integral part of the treatment process or is used for ultimate
disposal of residues resulting from such treatment.
(B) In addition to the definition contained in subpara-
graph (A) of this paragraph, 'treatment works' means any other
method or system for preventing, abating, reducing, storing,
treating, separating, or disposing of municipal waste, in-
cluding storm water runoff, industrial waste, and waste in
combined storm water and sanitary sewer systems."
-------
Source: Adapted from §§101{a), 201 and 212(2) of the Act.
B. SHORT DEFINITION OF TREATMENT WORKS.
The following is a shorter definition which provides a broad
concept of "treatment works."
Definition of "treatment works":
"The term 'treatment works' means any [publicly owned] devices,
systems of facilities used to restore and maintain the chemical,
physical and biological integrity of the state's waters."
Source: Adapted from §101 (a) of the Act.
C. AUTHORIZATION TO ACCEPT WASTES AND SERVE USERS BEYOND
POLITICAL JURISDICTION.
Purpose; To give the treatment agency the authority to
accept wastes for treatment from users outside the politi-
cal boundaries of the agency. Authorization to accept
wastes beyond jurisdiction:
"Every [insert agency] shall have the power to acquire any
sewer, drain, or system of sewerage and drainage already es-
tablished and constructed; and to acquire land within or with-
out the boundaries of the [agency] for a waste water treatment
facility, and to accept wastes for treatment from any persons
located within or without the [agency] boundaries."
Source: Suggested by authors and adapted from South
Dakota, S.D. Compiled Laws Ann. §9-4-8-2 (1967).
D. ALTERNATIVE PROVISION FOR ACCEPTING WASTES.
Purpose: S ame.
"The [insert agency] by formal action, and after consul-
tation with the municipalities affected, may extend the
boundaries of service regions or districts, combine two
or more service regions or districts or parts thereof
and combine, abandon, extend, enlarge, improve, or make
any other modification of projects serving one or more
service districts, provided that no such change will dim-
inish any existing level of service rendered to the dis-
trict or districts concerned.
Source: Maryland, Md. Ann. Code art. 33B, §5; (Supp. 1972)
- 4 -
-------
2.2 Authority to Accept and Utilize Grants, or Other Funds
from Any Source, for Waste Treatment Management Purposes.
[§208(c) (2) (D) ] .
This necessary authority is possessed, though not always in
express terms, by the vast majority of the state and local agen-
cies studied. The statute set out in Section A eliminates the
possibility that local agencies' compliance with this require-
ment could be questioned due to an apparent capability of the
state grant disbursing agency to divert grant funds. The sta-
tutes set out in subsections B and C of this section illustrate
two alternative means of providing local management agencies
with the authority to accept and utilize grants.
A. NON-DIVERSION PROVISION.
Purpose: To prevent an intermediate agency from diverting
grant funds to uses other than those approved in the grant
or to prevent grant funds from being used for any other
purpose.
Non-diversion provision:
"Notwithstanding any other provisions of the laws of this state
or any of its political subdivisions, grants or funds received
from any source, including the federal government, shall not be
used for any purposes other than those for which the grant was
made or the funds were designated, nor shall such grants or
funds be disbursed to any agency or agencies except those desig-
nated in the grant. Each [agency] receiving grants or funds
is authorized to account to the granting agency or donor in
such manner as may be required by such granting agency or donor."
Source: Suggested by the authors.
B. GRANT ACCEPTANCE ACT (Long Form).
Purpose: To provide local management agencies with the
grant acceptance capability required by the Act.
Grant acceptance act:
"Every [enumerate state and local agencies to which applicable]
shall have power and is hereby authorized:
(1) To accept from any federal agency or any other source
grants for or in aid of the construction of any public works
project, provided that such project is one which the recipient
- 5 -
-------
agency is authorized or required by law to undertake or is in
furtherance of any lawful purpose for which the agency is
authorized or required by law to make an appropriation;
(2) To make contracts and execute instruments containing
such terms, provisions, and conditions as in the discretion of
the governing body of the [agencies] may be necessary or proper
for the purpose of obtaining grants or loans, or both, from
any federal agency pursuant to or by virtue of any federal
act; to make all other contracts and execute all other instru-
ments necessary or proper in or for the furtherance of any
public works project and to carry out and perform the terms
and conditions of all such contracts or instruments;
(3) To subscribe to and comply with any rules and regu-
lations made by anh federal agency with regard to any grants
or loans, or both, from any federal agency;
(4) To perform any acts authorized herein through or
by means of its own officers, agents and employees, or by
contracts with corporations, firms or individuals;
(5) To sell bonds at private sale to any federal agency
without any public advertisement; to issue interim receipts,
certificates or other temporary obligations, in such form and
containing such terms, conditions and provisions as the govern-
ing body of the [agencies] issuing the same may determine,
pending the preparation or execution of definite bonds for
the purpose of financing the construction of a public works
project, provided nothing herein shall be construed to authorize
the issuance of bonds or other obligations for any purpose by
any agency not authorized to issue bonds or other obligations
for such purpose under any other law heretofore or hereafter
enacted, nor to dispense with the approval by a state depart-
ment, board, officer or commission of a public works project
where such approval is necessary under provisions of existing
law;
(6) To include in the cost of a public works project
for the furtherance of which grants or loans or both are sought
the cost of architectural, engineering, and economic investiga-
tions and studies, surveys, designs, plans, working drawings,
specifications, procedures, and other acts preliminary to the
construction of public works;
(7) To exercise any power conferred herein for the purpose
of obtaining grants or loans, or both, from any federal agency
-------
or other source independently or in conjunction with any other
power or powers conferred herein or heretofore or hereafter
conferred by any other law;
(8) "To do all acts and things necessary or proper to
carry out the powers expressly given herein."
Source: Adapted from the Washington Emergency Public
Works Act; Wash. Rev. Code Ann. §§39.28.010-39.28.030(1972).
C. GRANT ACCEPTANCE ACT (Short Form).
Purpose: To provide local management agencies with the
grant acceptance capability required by the Act.
Grant acceptance act:
"In addition to the right, power and authority granted by any
Act, [insert agencies] are authorized to apply for and accept
grants and loas from and contract with the United States
Government, the State of (name of state) or any department,
agency or instrumentality thereof as and when the same is
created or empowered to act for the United States or the State
of (name of state), for the purpose of aiding in financing
the establishment, construction, improvement, extension, pur-
chase or use of any public work project within the scope of
or relating to the authorized corporate functions and operations
or powers of the particular [agency]."
Source : Illinois; 111. Ann. Stat. Ch. 29, §33a(Supp. 1972).
D. ALTERNATIVE GRANT ACCEPTANCE ACT.
Purpose : Same .
Grant acceptance act:
All [insert agencies] shall have the power to make application
for, receive, and accept from any State or federal government
or any agency, instrumentality, or subdivision thereof, grants
for or in aid of the planning, financing, construction, acquis-
ition, maintenance, or operation of any project, and to receive
and accept aid or contributions from any source of money, property,
labor, or other things of value, to be held, used, and applied
only for the purpose for which such grants and contributions
may be made in the furtherance of the purposes of this article.
Source: Maryland; Md. Ann. Code art. 33B, §4 p (Supp. 1972).
- 7 -
-------
2.3 Authority to Raise Revenues, Including The Assessment
of Waste Treatment Charges. [§ 208 (c) (2) (E) ].
As noted in the Format to State Reports (Parts 2.3, 2.3.1
and 2.3.2; Appendix B), most waste treatment management agen-
cies have authority to raise revenues and assess waste treat-
ment charges ("user charges"). The problems, if any, are the
limitations which may exist on the available methods and systems
of user charges and the authority to implement industrial cost
recovery systems. Are the systems or methods of charges such
(i) that each category of user can be required to pay its pro-
portionate share of waste treatment services provided by the
agency [ § 204 (b) (1) (A) of the Act], and (ii) that full recovery
can be had from industrial users of waste treatment works of
the federal portion of the construction costs reasonably at-
tributable to treatment of such industrial wastes [§204(b)(l)
(B) of the Act] ?
The following suggested legislation could be enacted for the
purposes stated.
2.3.1 Each Category of User Will Pay Its Proportionate
Share of the Costs of Operation and Maintenance
(Including Replacement) of Any Waste Treatment
Services Provided by the Agency [§204(b)(l) (A)].
A. PROPORTIONATE CHARGING PROVISION.
Purpose: Charge each category of user its proportionate
share of treatment costs.
Proportionate charging provision:
"The [agency] may [or shall] fix the price or charges for its
waste treatment services rendered to users within and without
the territorial jurisdiction of [such agency], provided that
the rates charged must be uniform for the same class of cus-
tomers or service and represent the proportionate share of
treatment costs of such class of customers or service. In
classifying customers served or service furnished by such sys-
tem of sewerage, the [agency] may in its discretion consider
any or all of the following factors: The difference in cost
of service to the various customers; the location of the various
customers within and without the territorial jurisdiction of
the [agency]; the difference in cost of maintenance, operation,
repair, and replacement of the various parts of the system; the
different character of the service furnished various customers;
the quantity and quality of the sewage delivered and the time
-------
of its delivery; capital contributions made to the system., in-
cluding but not limited to, assessments; and any other matters
which present a reasonable difference as a ground for distinc-
tion. "
Source; Washington; Wash. Rev. Code Ann. §35.92.020(1965).
B. ALTERNATIVE PROPORTIONATE CHARGING PROVISION.
Purpose; Same.
Alternative proportionate charging provision:
"Such charges shall be as nearly as may be in the judgment
of the [agency] equitable and in proportion to the service
rendered and taking into consideration in the case of each
such user the quantity of sewage produced and its concentra-
tion, strength, or [water] pollution qualities in general."
Source: Iowa, Iowa Code Ann. §393.2(1949).
C. ALTERNATIVE PROPORTIONATE CHARGING PROVISION (II).
Purpose: S ame.
Another proportionate charging provision:
"Charges made for sewer service directly rendered shall be
as nearly as possibly proportionate to the cost of furnishing
the same, and sewer charges may be fixed on the basis of water
consumed, or by reference to the quantity, pollution qualities
and difficulty of disposal of sewage produced, or on any other
equitable basis including, but without limitation, any com-
bination of these referred to above."
Source; Minnesota; Minn. Stat. Ann. § 444.075(3) (Supp. 1972)
2.3.2 Full Recovery Will Be Had from the Industrial
Users of the Waste Treatment Works of the Federal
Portion of the Construction Costs of Treatment
Works Reasonably Attributable to Treatment of
Such Industrial Wastes. [ § 204 (b) (1) (B)] .
A. RECOVERY OF INDUSTRIAL PORTION OF CONSTRUCTION COSTS
PROVISION.
Purpose; Authorizes recovery from industry of its
- 9 -
-------
proportionate share of construction costs attributable to
treatment of industrial wastes.
Recovery of industrial portion of construction costs
provision:
"In providing works for the treatment of industrial sewage,
commonly called industrial wastes, whether the industrial
sewage is disposed of in combination with municipal [other]
sewage or independently, the [agency] has authority to deter-
mine and collect therefore, from the industrial producer
thereof, the fair additional construction, maintenance and
operating costs attributable to treating such industrial
producer's waste [over and above those covered by normal
taxes]."
[Arbitration procedure omitted.]
Source: Illinois; 111. Ann. Stat. Ch. 42 §283.1(Supp. 1972)
B. ALTERNATIVE PROVISION FOR RECOVERY OF CONSTRUCTION
COSTS FROM INDUSTRY.
Purpose: S ame.
Alternative provision:
"In providing a treatment works to treat industrial wastes,
either independently or in conjunction with other wastes, the
[agency] shall have the authority |o collect from such in-
dustrial users all or any part of the construction costs of
such treatment works reasonably attributed to treatment of
such industrial wastes. The apportionment of such costs shall
be equitable as among industrial users, and such costs may be
collected by assessment, connection fee, periodic charges,
or in other manners or combinations thereof as in the judg-
ment of the [agency] is equitable and will assure such in-
dustrial cost recovery."
Source: Suggested by authors.
C. PROVISION FOR TRANSFERABILITY BY INDUSTRIAL USER OF
RIGHT OR PERMIT TO DISCHARGE.
Purpose: In the event that an individual industry is
committed to repay its share of the industrial cost
10
-------
recovery, the commitment to repay should be transferable to
another industry which replaces the committed industry c.b a
user. The following authorizes such transfer subject to consent
of the agency which consent cannot be unreasonably withheld,
Transferability provision:
"The commitment of an industrial user of waste tre-a'c^nt
service to repay its share of industrial recovery costs may be
assumed by another industry replacing the former as a user of
waste treatment services; provided, however, that such assump-
tion shall not release such original or former user vi bhcmi.
the written consent of the agency which consent shall not. be
unreasonably withheld."
Source: Suggested by authors,
D. PROVISION PERMITTING MANAGEMENT AGENCY TO REALLOCATE
INDUSTRIAL USERS ' RIGHTS TO DISCHARGE AND REAPPOR-
TIOMING INDUSTRIAL COST RECOVERY.
Purpose: In the event that an industry or industries
using the system decrease their use so that the treatment
works has unused capacity, the management agency should
have the right to permit new or additional industrial users
to discharge into the system. This would necessitate a
reallocation among all industrial users of the shares of
industrial cost recovery,
Reallocation provision:
"The [insert agency] shall have the right to allocate and
reallocate among industrial users the right to discharge in-
dustrial wastes into treatment system. In the event of such
reallocation, the share of industrial cost recovery of each
participating industry shall be reallocated proportionately
among all industrial users; provided, that the share of an in-
dustrial user may not be increased except in proportion to its
increased use of the. system.
Source: Suggested by authors.
2.4 Authority to Incur Short- and Long-term Indebtedness.
[§208(c)(2)(F)J.
It is a normal characteristic of treatment agencies that they
possess sufficient authority to incur short- and long-term
11
-------
indeotedness for compliance with the requirement of §202 (c)
'2) (I1' _>f the Act, The statutes included in this section are
therefore not so much offered as remedial legislation but as
s of less prevalent statutory financing opportunities,
A. BORROWING IN ANTICIPATION OF STATE OR FEDERAL
AID PROVISION.
•r- arpose : To allow municipalities to borrow in ariticipa-
T'i"c7r"oT preferred state or federal grants in order to
expedite initiation of needed, grant eligible projects.
Aaticipatory borrowing provision:
"Notwl thst.5mding any other provisions of the laws of this state
or c.ny of its political subdivisions, but subject to consti-
tutional limits on indebtedness any [enumerate agency or agen-
cies to which applicable] which has contracted for and accepted
an offer or a grant of federal or state aid or both, for a
particular project for which [an agency] may raise or expend
money, may , upon resolution of its [governing body], incur
indebtedness in anticipation of the receipt of such aid. for
the particular project by issuing its general obligation notes
payable in .lot more than one year, which notes may be renewed
from time to time by th? issue of other notes, provided that
no notes shall be issued or renewed in an amount which at the
time of such issuance or renewal exceeds the unpaid amount of
the federal or state aid or both in anticipation of which such
notes are issued or renewed. To any extent that the federal
or state aid in anticipation of which the notes were issued
when received exceeds the amount of such aid remaining to be
paid under contract or accepted offer, plus the amount of any
outstanding notes issued in anticipation thereof, it shall be
kept in a separate account and used solely for the payment of
such outstanding notes. Any provision of state law [or of
the agency charter] requiring the publication of an ordinance,
vote, or ra solution of the [governing body] , the holding of
a public hearing tn-sreon or subjecting such ordinance,- vote,,
order or resolution to a referendum shall not apply to any
borrowing authorized under this act. "
Note: In states where the constitution a !. restrictions on in-
debtedness require submission of general obligation indebted-
ness to a popular vote, such restriction would have to be re-
flected in an act of this type, seriously limiting the use-
fullness of the [provision,
Maine; Me. Rev. Scat. Ann, tit. 30, §5153 (Supp.
-------
B. INTERIM FINANCING PENDING ISSUANCE OF DEFINITE BONDS.
Purpose: To authorize temporary financing of projects
pending the issuance of definite bonds.
Interim financing provision:
"Every [insert agency] shall have power and is hereby
authorized:
(1) To sell bonds at private sale to any federal agency
without any public advertisement;
(2) To issue interim receipts, certificates or other
temporary obligations, in such form and containing such terms,
conditions and provisions as the [insert agency] issuing the
same may determine, pending the preparation or execution of
definite bonds for the purpose of financing the construction of
a public works project.
Source: Adapted from Washington Emergency Public Works
Act; RCWA §39.28.020(1972).
C. FUNDING THROUGH OR BY STATE LEVEL WASTE MANAGEMENT
AGENCIES.
The two statutes set out, in part, below established the
Maryland Environmental Service (MES) and the New York State
Environmental Facilities Corporation (EFC), two of the nation's
state level agencies designed to act with or in substitution
for agencies of local government in waste treatment management.
While both agencies provide a range of services including plan-
ning, facility design, construction, and operation and mainten-
ance, financing of facilities is one of their most important
functions.
A comparison of the two acts shows that the capabilities of
both agencies are quite similar. Both engage in planning
[N.Y. §1284(9); Md. §§4(9) and 5], although the MES capa-
bilities in this are much broader and more complex. Both may
operate facilities as well as build them [N.Y. §§1285(1) and
1285(3); Md. §§4, 6, and 9]. Both are authorized to accept
federal aid [N.Y. §1284(14); Md. §4(p)], and both may incur
debt [N.Y. §1290, Md. §4(i)j. For both, the income from their
bonds is tax exempt [N.Y. §1296(8); Md. §22].
The thrust of the two agencies is different. The EFC was de-
signed simply to allow the state to provide needed services to
- 13 -
-------
local governments. While this is also an important purpose
of MES, the relationship between planning and its other func-
tions [§15] indicates that the agency was designed to insti-
tutionalize a regional approach to waste management, becoming
in effect a statewide sanitary district.
The use by local governments of the services of the agencies
is encouraged by a number of financial advantages which they
offer. Both offer advantages of scale in providing centralized
and specialized facilities of sophistication beyond the means
of most local governments. In financing their facilities
through these agencies, local governments can avoid exhausting
their constitutional debt limitations. The bonds of these
agencies will often sell more easily and at more favorable in-
terest rates than would local issues, although it should be
noted that the bonds of neither are supported by the full faith
and credit of either the state or local governments.
For a more detailed analysis of MES, see the Maryland state
report in Appendix B. For analysis of EFC and another state
agency of this type, the Ohio Water Development Authority,
see the New York and Ohio reports in Appendix B.
1. Maryland Environmental Service
ARTICLE 33B — ENVIRONMENTAL SERVICE.
Sec. (Selected Provisions)
1. Legislative intent; purposes of article.
2. Creation and organization.
3. (omitted) .
3B. (omitted).
4. Powers generally.
5. (omitted).
6. (omitted).
7. Charges for project contracts; costs of projects generally.
8. (omitted) .
- 14 -
-------
9. (omitted).
10. (omitted).
11. Authority to issue bonds and notes and determine matters
relating thereto.
12. Provisions applicable to all bonds and notes.
13. Sources of payment of bonds and notes.
14. Refunding bonds or renewal notes.
15. Interim receipts, temporary bonds and bond anticipation notes,
16. Trust agreement securing bonds.
17. Revenues generally.
18. Trust funds.
19. Remedies of bondholders and trustees.
20. Bonds and notes are legal investments.
21. Bonds or notes not to be deemed State or local debt.
22. (omitted) .
23. (omitted) .
24A. (omitted).
25. Rules and regulations generally.
26. (omitted) .
27. (omitted) .
28. Construction of article — Generally.
29. e_t seq. (omitted).
§1. Legislative intent; purposes of article.
To assist with the preservation, improvement, and management of
the quality of air, land, and water resources, and to promote
the health and welfare of the citizens of the State, it is the
intention of the General Assembly in enactment of this article
- 15 -
-------
to exercise the powers of the State of Maryland to provide for
dependable, effective, and efficient water supply and purifica-
tion and disposal of liquid and solid wastes, to encourage re-
ductions in the amount of waste generated and discharged to the
environment, and to serve its political subdivisions and economic
interests. For these purposes, the General Assembly creates an
instrumentality of the State of Maryland constituted as a body
politic and corporate to provide water supply and waste purifi-
cation and disposal services in compliance with State laws,
regulations, and policies governing air, land, and water pol-
lution to public and private instrumentalities, and with safe-
guards to protect the autonomy of the political subdivisions and
the rights of the private entities it serves.
§2. Creation and organization.
(a) Created; instrumentality of State; agency of Department of
Natural Resources. -- There is created a body politic and
corporate to be known as the "Maryland Environmental Service,"
hereinafter referred to as the Service. The Service is con-
stituted as an instrumentality of the State of Maryland, and
the exercise by the Service of the powers conferred by this
article shall be deemed and held to be the performance of an
essential governmental function of the State of Maryland. For
purposes of executive organization, the Service shall be an
agency within the Department of Natural Resources, and the
exercise of all powers and functions of the Service shall be
subject to the authority of the Secretary of Natural Resources
as set forth in Article 41 of this Code or elsewhere in the
laws of Maryland. However, the Secretary's authority to
transfer functions, staff or funds set forth in §234(d) of this
Code shall not be applicable to the Service.
§ 3 . (omitted) .
§3B. (omitted).
§4. Powers generally.
The Service is granted and has and may exercise all powers neces-
sary for carrying out the purposes of this article, including,
but not limited to, the following rights and powers:
(a) Perpetual corporate existence. -- To have perpetual exis-
tence as a corporation;
(b) Bylaws, rules, regulations, etc. -- To adopt bylaws, rules,
regulations, policies , and procedures for the regulation of
its affairs and the conduct of its business, subject to approval
of the Secretary of Natural Resources;
- 16 -
-------
(c) Official seal. -- To adopt an official seal and alter -che
same at pleasure;
(d) Office facilities. -- To maintain an office or offices at
such place or places as it designates, subject to the approval
of the Secretary of Natural Resources;
(e) Agents, employees and servants. -- To appoint agents, em-
ployees, and servants, subject to the approval of the Secretary
of Natural Resources, and to prescribe their duties and to
fix their compensation as set forth in this article;
(f) Sui juris. -- To sue and be sued;
(g) Acquisition, construction, operation, etc., of projects;
project rules and regulations; purchase, lease"/sale , etc.. ,
of franchise and property. -- To acquire, construct, recon-
struct, rehabilitate, improve, maintain lease as lessor or
as lessee, repair and operate projects within or without the
State of Maryland and to establish reasonable rules and regu-
lations for the use of any project, and to acquire, purchase,
hold, lease as lessee, and use any franchise and any property,
real, personal or mixed, tangible or intangible, or any in-
terest therein necessary or convenient for carrying out the
purposes of the Service and to sell, lease as lessor, and
dispose of any property or interest therein at any time ac-
quired by it;
(h) Acquisition of real property and water rights generally;
eminent domain"! -- To" acquire by gift, purchase, or the exercise
of the right of eminent domain, in the manner prescribed by
Article 33A of the Annotated Code of Maryland, as from time
to time amended, real property or rights in real property
or water rights in connection therewith; and at any time
after the ten days following the return and recordation of
the verdict or award in any condemnation proceedings, the
Service may enter and take possession of the property so
condemned/ upon first paying to the clerk of the court the
amount of said award and all costs taxed to that date, not--
withstanding any appeal or further proceedings upon the part
of the defendant; but at the time of said payment, however,
the Service shall give its corporate undertaking to abide by
and fulfill any judgment in such appeal or further proceedings.
(i) Borrowing money; issuing bonds and notes and securing
same. -- To borrow money and to issue bonds or notes for ths.
17 -
-------
purpose of paying all or any part of the cost of any one or
more projects and to provide funds to be paid into any debt
service reserve fund, and to secure the payment of such bonds
or note o •: any part thereof by pledge or deed of trust of all
or any part of its revenues or other available moneys to com-
bine projects for financing purposes and to make such agree-
ments with cr for the benefit of the purchasers or holders of
such bends or notes, or with others in connection with the issue
of any such bonds or notes, whether issued or to be issued,
as the Service may deem advisable and in general to provide
for the security for such bonds or notes and the rights of
the holders thereof;
(j) Combining projects, -- To combine, after consultation with
the muni c i p a I i tTe~i affected , one or more water supply, waste
water purification or solid waste disposal project with any
other project as a single system for the purpose of operation
or of financing;
(k) Rates, fees and charges. -- To fix, alter, charge, and
collect rates, fees, and charges for the use of or for the
services furnished by its projects;
(1) Contracts with federal, State or municipal governments and
others. -= To enter into contracts with the federal or any
State government, or any agency, instrumentality or subdivision
thereof,- or with any municipality or person within or without
the State of Maryland providing for or relating to the fur-
nishing of services to or the facilities of any project of
the Service, or in connection with the services or facilities
provided by any water supply project, solid waste project or
rvaste water purification project owned or controlled by the.
other contracting party, including contracts for the construc-
tion and operation of any project which is in this State or in
such adjoining state;
UTL'I Contracts and agreements generally. -- To make and enter
:-•". to ail contracts or agreements, as the Service determines,
necessary or incidental to the performance of its duties and
to the execution of the purposes of and the powers granted by
this article, including contracts with the federal or any State
government, or any agency, instrumental-it/, or municipality
thereof or with any person on terms and conditions the Service
approves, relating to (1) the use by the other contracting
party or the inhabitants of any municipality of any project
acquired; constructed, reconstructed, rehabilitated, improved
- 13
-------
or extended by the Service under this article or the services
therefrom or the facilities thereeof, or (2) the use by the
Service of the services or facilities of any water supply sys-
tem, solid wastes system, or liquid waste system owned or op-
erated other than by the Service; the contract may provide
for the collecting of fees, rates, or charges for the projects
provided by the Service and for the enforcement of delinquent
charges for the projects; and the provisions of the contract
and of any ordinance or resolution of the governing body of
a municipality enacted pursuant thereto shall be deemed to be
for the benefit of bondholders or noteholders;
(n) Entry upon and excavation of municipal streets, roads and
other public ways. — To enter upon and excavate any municipal
street, road, or alley, highway or any other public was for
the purpose of installing, maintaining, and operating a water
supply, solid waste disposal or waste water purification project
provided for under this article, and to construct in the street,
road, alley or highway, a water supply facility or sewer or
any appurtenance thereof, without a permit or the payment of
a charge; subject, however, to such reasonable local regulation
as may be established by the governing body of any municipality
having jurisdiction in the particular respect; and if any mu-
nicipal street, road, alley, or highway is to be disturbed,
the governing body having control thereof shall be notified
within a reasonable period of time, and the said street, road,
alley, or highway shall be repaired and left by the Service in
the same condition as, or in a condition not inferior to, that
existing before the street, road, alley, or highway was torn
up, and that all costs incident thereto shall be borne by the
Service;
(o) Right of entry upon lands , waters and premises for certain
purposes; liability for damage. -- To enter upon lands, waters,
or premises as in the judgment of the Service is necessary,
convenient, or desirable for the purpose of making surveys,
soundings, borings, and examinations to accomplish any pur-
pose authorized by this article, the Service being liable for
actual damage done;
(p) Grants and contributions. -- To make application for, re-
ceive, and accept from any State or federal government or any
agency, instrumentality, or subdivision thereof, grants for
or in aid of the planning, financing, construction, acquisition,
maintenance, or operation of any project, and to receive and
accept aid or contributions from any source of money, property,
- 19 -
-------
labor, or other things of value, to be held, used, and applied
only for the purpose for which such grants and contributions
may be made in the furtherance of the purposes of this article;
(q) Making plans, surveys, studies, etc. -- To make directly,
or through the hiring of consultants, any plans, surveys, in-
vestigations, and studies relating to water supply, liquid and
solid wastes transportation, purification, disposal techniques,
and management methods or the effects of these techniques and
methods, for the purpose or [of] improving or evaluating the
effectiveness or economy of its services and operations; the
Service may charge in part or in whole the costs of the inves-
tigations and studies against one or more service districts
or may include them in part or in whole in its general operating
expenses, depending on the expected applicability of the studies
and investigations; and the Service may supplement grants or
other aids received from the federal government or from other
sources to assist in carrying out the purposes of this article;
(r) Conducting hearings and investigations. -- To conduct
hearings and investigations for the furtherance of the pur-
poses of this article; and
(s) Supplemental powers. — To do all things necessary to
carry out its purposesand for the exercise of the powers
granted in this article.
(t) Limitation of powers within municipality. -- Anything in
this article to the contrary notwithstanding, the Service shall
not have any power to construct or otherwise establish any
new solid waste disposal project or to dispose of any solid
wastes within the boundaries of any municipality without the
express consent of the governing body of such municipality.
(u) Permitting municipality to construct, operate, etc. ,
facilities when Service unable to do so. --To permit a mu-
nicipality to construct, operate, maintain, expand, relocate,
replace, renovate or repair facilities provided for in this
article when the Service certifies that it is not in a position
to provide the necessary construction, operation, maintenance,
expansion, relocation, replacement, renovation or repair of
facilities within the municipality- Notwithstanding other
provisions in this article and limited to the circumstances
in this subparagraph, a municipality shall finance construction,
operation, maintenance, expansion, relocation, replacement
- 20 -
-------
renovation or repair of facilities in accordance with its
statutory authority, including the receiving of State and/or
federal grants if available. The municipality shall have the
authority to fix and charge the appropriate rates sufficient
to cover the costs to construct, operate, maintain, expand,
relocate, replace, renovate or repair said facilities.
§ 5 . (omitted) .
§6 . (omitted) .
§7. Charges for project contracts; costs of projects generally.
(a) Determination of contract charges and costs. -- In cal-
culating charges for contracts and in determining the local
costs to be apportioned to a service district established pur-
suant to this article, the Service shall require that the
charges reflect the full costs of projects. Such charges and
costs to be apportioned to any particular municipality or
person located within a service district shall take account
of the value and capacity of any existing facility transferred
by such municipality or person to the Service, and the costs
and obligations assumed by the Service incidental to the trans-
fer of such facility, and, to the extent deemed reasonable and
practicable by the Service, charges shall also be based on but
not necessarily limited to a formula reflecting the volume and
characteristics of the wastes as they influence transportation,
purification, final disposal, and time pattern of discharge.
(b) State funds to be paid to Service upon failure of municipality
to pay for project. -- If a municipality fails to pay the Ser-
vicefor projects provided pursuant to this article within 60
days of the due date, as established by contract, then all State
funds, or such portion of them as may be required, relating to
the income tax, the tax on racing, the recordation tax, the tax
on amusements, and the license tax thereafter to be distributed
to the municipality shall be paid by the Comptroller of Maryland
directly to the Service until the Service is reimbursed.
(c) Unpaid charges to be lien against property upon person
failing to pay for projects. -- If a person fails to pay the
Service for projects provided pursuant to this article within
60 days of the due date, as established by contract, then the
unpaid bill shall become a lien against the property served
and shall be referred to the Attorney General for collection.
(d) Fee ma^ be charged by county or Baltimore City for final
disposal of solid wastes. -- The governing body of any county
- 21 -
-------
(or Baltimore City) may charge the Service a fee not to ex-
ceed twenty-five cents (25C) per ton for final disposal of
solid waste at any solid waste disposal project located in
that county (or Baltimore City).
(e) Review of project contracts. -- All contracts for proejcts
shall be reviewed at least biennially by the Service and by
the other contracting party, provided that a contract may be
reviewed upon the request of either party at any time for the
purpose or [of] renegotiating rates, fees, or other charges
exacted by the Service.
§8. (omitted).
§9. (omitted).
§10. (omitted).
§11. Authority to issue bonds and notes and determine matters
relating thereto.
(a) The Service is hereby authorized and empowered to provide,
by resolution adopted by a majority of the board of directors,
from time to time for the issuance of bonds and notes of the
Service for the purpose of paying the cost of any one or more
water supply projects, solid waste disposal projects or waste
water purification projects or any combination thereof acquired,
constructed, reconstructed, rehabilitated, improved or ex-
tended by the Service and to provide funds to be paid into any
debt service reserve funds.
(b) The board of directors shall have absolute discretion to
determine with respect to the bonds or notes of any issue:
(i) the date or dates of issue; (ii) the date or dates and
amount or amounts of maturity, provided only that no bond of
any issue shall mature later than forty (40) years from the
date of its issue; (iii) the rate or rates of interest pay-
able thereon and the date or dates of such payment; (iv) the
form or forms, denomination or denominations, manner of execu-
tion and the place or places of payment thereof, and of the
interest thereon, which may be at any bank or trust company
within or without this State; (v) whether such bonds or notes
or any part thereof shall be made redeemable before maturity
and, if so, upon what terms, conditions and prices; and (vi) any
other matter relating to the form, terms, conditions, issuance
and sale thereof.
- 22 -
-------
§12. Provisions applicable to all bonds and notes.
(a) Validith of former officer's signature. -- In case any of-
ficer whose signature or a facsimile of whose signature appears
on any bonds or coupons or notes shall cease to be such officer
before the delivery of such bonds or notes, such signature or
such facsimile shall nevertheless be valid and sufficient for
all purposes the same as if he had remained in office until such
delivery.
(b) Bonds and notes deemed negotiable instruments. -- Notwith-
standing any other provision of this article or any recitals
in any bonds and notes issued hereunder, all such bonds and
notes shall be deemed to be negotiable instruments under the
laws of this State.
(c) Form; registration, reconversion and interchange; replace-
ment of lost, mutilated or destroyed bonds. -- The bonds may
be issued in coupon or in registered form or both, and pro-
vision may be made for the registration of any coupon bonds as
to principal alone and also as to both principal and interest,
for the reconversion into coupon bonds of any bonds registered
as to both principal and interest, and for the interchange of
coupon and registered bonds. Provision may also be made for
the replacement of bonds which become mutilated or are lost
or destroyed.
(d) Bonds and notes exempt from Article 31, §§1 to 12. --
The bonds and notes shall be exempt from the provisions of
§§1 to 12, inclusive, of Article 31 of the Annotated Code
of Maryland, and the Service may sell such bonds and notes
in such manner, either at public or at private sale, and for
such price as it may determine.
(e) Consent of State agencies, etc., not required for issuance.
The bonds and notes may be issued by the Service without ob-
taining the consent of any department, division, commission,
board, bureau or agency of the State, and without any other
proceedings or the happening of any other conditions or things
than those specifically required hereunder.
§13. Sources of payment of bonds and notes.
Except as may otherwise be expressly provided by the Service,
every issue of its bonds or notes shall be general obligations
of the Service payable out of any revenues or other moneys of
the Service, subject only to any agreements with the holders
of particular bonds or notes pledging any particular receipts
or revenues.
- 23 -
-------
§14, Refunding bonds or renewal notes.
The service is further authorized and empowered to provide, by
resolution adopted by a majority of the board of directors, for
the issuance of its renewal notes or of refunding bonds for the
purpose of refunding any bonds or notes then outstanding which
had been issued under the provisions of this article, whether
the bonds or notes to be refunded have or have not matured, in-
cluding the payment of any redemption premium thereon and any
interest accrued or to accrue to the date of redemption of such
bonds or notes, and, if deemed advisable by the board of di-
rectors , for either or both of the following combined additional
purposes: (i) paying all or any part of the cost of constructing
improvements or extensions to or enlargements of any existing
project or projects and (ii) paying all or any part of the cost
of any additional project or projects. The issuance of such
refunding bonds or renewal notes and the details thereof, the
rights of the holders thereof, and the rights, duties and ob-
ligations of the Service in respect thereto, shall be governed
by the provisions of this article relating to bonds or notes,
insofar as the same may be applicable.
§15. Interim receipts, temporary bonds and bond anticipation
notes.
The Service, by resolution adopted by a majority of the board
of directors, is further authorized and empowered to:
(a) Issue, prior to the preparation of definitive bonds, interim
receipts or temporary bonds, with or without coupons, exchange-
able for definitive bonds when such bonds have been executed
and are available for delivery: and/or
(b) Issue and sell its bond anticipation notes, the principal
of and interest on said notes to be made payable to the bearer
or registered holder thereof out of the first proceeds of sale
of any bonds issued under this article, or from any other
available moneys of the Service, provided that the authorizing
resolution may make provision for the issuance of such bond
anticipation notes in series as funds are required and for the
renewal of such notes at maturity with or without resale. The
issuance of such notes and the details thereof, the rights of
the holders thereof, and the rights, duties, and obligations
of the Service in respect thereto, shall be governed by the
provisions of this article relating to bonds, insofar as the
same may be applicable.
- 24 -
-------
§16. Trust agreement securing bonds.
(a) Bonds authorized to be issued under the provisions of this
article by resolution of the board of directors may be secured
by a trust agreement by and between the Service and a corporate
trustee, which may be any trust company, or bank having trust
powers, within or without the State. Such trust agreement, or
such authorizing resolution, may pledge or assign all or any
part of the revenues of the Service or of any project or other
available funds of the Service. Any such trust agreement of
resolution authorizing the issuance of bonds may contain such
provisions for the protection and enforcement of the rights
and remedies of the bondholders as may be deemed reasonable
and proper, including covenants setting forth the duties of
the Service in relation to the acquisition or construction of
any project, the extension, enlargement, improvement, main-
tenance, operation, repair and insurance of any project and
the custody, safeguarding and application of moneys and may
contain provisions for the employment of consulting engineers
in connection with the construction or operation of any project.
It shall be lawful for any bank or trust company incorporated
under the laws of this State which may act as depositary of the
proceeds of the bonds or of revenues to furnish such indemnifying
bonds or to pledge such securities as may be required by the
board of directors. Such trust agreement may set forth the
rights and remedies of the bondholders and of the trustee and
may restrict the individual right of action by bondholders. In
addition to the foregoing, such trust agreement may contain
such other provisions as the board of directors may deem reason-
able and proper for the security of the bondholders, including,
without limitation, covenants to abandon, restrict or prohibit
the construction or operation of competing facilities and
covenants pertaining to the issuance of additional parity bonds
upon conditions stated therein consistent with the requirements
of this article. All expenses incurred in carrying out the
provisions of any such trust agreement may be treated as a part
of the cost of the operation of any project or projects in con-
nection with which such bonds shall have been issued.
(b) The proceeds of the sale of bonds secured by a trust agree-
ment shall be paid to the trustee under the trust agreement
securing such bonds and shall be disbursed in such manner and
under such restrictions, if any, as may be provided in such
trust agreement.
§17. Revenues generally.
(a) Rentals, rates, fees and charges generally. — The Service
- 25 -
-------
is hereby authorized to fix, revise, charge and collect rentals,
rates, fees or other charges for the use of or for the services
furnished by any project or projects, and to contract with any
person or municipality -desiring the use of the services or any
part of any project or projects and to fix the terms, conditions,
rentals, rates, fees and charges therefor. The rentals and
other rates, fees and charges designated as security for any
bonds issued under this article shall be so fixed and adjusted
in respect of the aggregate thereof from the projects under the
control of the Service so as to provide funds sufficient with
other revenues, if any, (i) to pay the cost of maintaining, re-
pairing and operating anh project or projects financed in
whole or in part by outstanding bonds, to the extent such cost
is not otherwise provided, (ii) to pay the principal of and the
interest on such bonds as the same become due and payable,
(iii) to create reserves for such purposes, and (iv) to provide
funds for paying the cost of renewals or replacements, the cost
of acquiring or installing equipment and the cost of enlarging,
extending, reconstructing or improving any such project or
projects. Such rentals and other rates, fees and charges shall
not be subject to supervision or regulation by any department,
division, commission, board, bureau or agency of the State or
any political subdivision thereof, except as provided in §26
of this article.
(b) (omitted) .
§18, Trust funds.
All moneys received by the Service as proceeds from the sale
of bonds or notes and all moneys received by way of thos rentals,
rates, fees or other charges or revenues, or portion thereof,
from any project or projects, or any continuation of projects
and which are designated by any authorizing resolution or trust
agreement as security for such bonds shall be deemed to be trust
funds to be held and applied solely as provided by the provisions
of this article and in the resolution authorizing the issuance
of such bonds or notes or the trust agreement securing such
bonds.
§19. Remedies of bondholders and trustees.
Any holder of bonds or notes issued under this article or of
any of the coupons appertaining to such bonds, and the trustee,
except to the extent the rights herein given may be restricted
by the trust agreement, may, either in law or in equity, by suit,
action, mandamus or other proceedings, protect and enforce any
-------
and all rights under the laws of this State or granted hereun-
der or in the resolution authorizing the issuance of such bonds
or notes or under the trust agreement, and may enforce and com-
pel the performance of all duties required by this article or
in the resolution authorizing the issuance of such bonds or
notes or by the trust agreement to be performed by the Service
or by any officer thereof, including the fixing, charging and
collecting of rentals and other rates, fees and charges for
the use of the projects.
§20. Bonds and notes are legal investments.
Bonds and notes issued under this article are hereby made
securities in which all public officers and public agencies of
the State and its political subdivisions and all banks, trust
companies, savings and loan associations, investment companies
and others carrying on a banking business, all insurance com-
panies and insurance associations and others carrying on an in-
surance business, all personal representatives, guardians,
trustees and other fiduciaries, and all other persons may legally
and properly invest funds, including capital in their control or
belonging to them. Such bonds and notes are hereby made secu-
rities which may properly and legally be deposited with and re-
ceived by any State or municipal officer or any agency or
political subdivision of the State for any purpose for which
the deposit of bonds or other obligations of the State is now
or may hereafter be authorized by law.
§21. Bonds or notes not to be deemed State or local debt.
Bonds or notes issued under the provisions of this article
shall not be deemed to constitute a debt or a pledge of the
faith and credit of the State or of any political subdivision
thereof. All such bonds or notes shall contain on the face
thereof a statement to the effect that neither the Service nor
the State nor any political subdivision thereof shall be ob-
ligated to pay the same or the interest thereon except from
revenues or other moneys of the Service available therefor
and that neither the faith and credit nor the taxing power of
the State or any political subdivision thereof is pledged to
the payment of the principal of or the interest of such bonds
or notes.
§22. (omitted).
§23. (omitted).
§ 24. (omitted) .
- 27 -
-------
§25,, Rules and regulations generally.
(a) Authority to adopt, enforce, etc. -- Except as otherwise
provided by this article, and subject to the provisions of
Article 41r §235 (b) of this Code, the Service is hereby author-
ized to adopt, formulate, and revise from time to time, and
enforce rules and regulations necessary for the regulation of
its internal affairs and for the use and operation of its pro-
jects, and of any other laws the administration of which is
vested in the Service; provided, however, that no such rule or
regulation concerning the use or operation of a project shall
be in conflict with any rule or regulation of the State Depart-
ment of Health. The Service may limit or regulate water supply
or liquid waste service, refuse collection and disposal service,
and storm and surface water drainage service, on a temporary
basis in any area or to any premise served by Service projects,
as the exigencies of the occasion and the protection of its
systems require. The Service shall make such regulations con-
sistent with law as it may deem necessary for the public safety,
health, comfort or convenience, in the construction, operation,
maintenance, expansion, relocation, replacement, renovation,
and repair of its water supply, waste water purification and
solid waste disposal projects.
§26 . (omitted).
§27. (omitted).
§28. Construction of article -- Generally.
This.article shall constitute full and complete authority,
without regard to the provisions of any other law for the do-
ing of the acts and things herein authorized, and shall be
liberally construed to effect the purposes hereof; provided,
however, that nothing herein contained shall be taken as
restricting any control which the Department of Health and
Mental Hygiene and the Department of Natural Resources, or
any of the departments or agencies included therein, are em-
powered to exercise over any water supply, waste water puri-
fication or solid waste disposal project authorized by this
article except as provided for in §12(e) of this article.
Provided further that nothing herein contained shall be taken
as authority or power to interfere with, restrict or other-
wise affect the operation of existing waste water purification,
water supply or solid waste disposal projects found by the
Secretary of Health and Mental Hygiene to be adequately and
-------
lawfully operated by municipalities having jurisdiction or
responsibility for them, except by their express consent and
agreement.
§§29 et seq. (omitted) .
Source: Maryland; Md. Ann. Code art. 33B(Supp. 1972).
2. New York State Environmental Facilities Act.
TITLE 12 — NEW YORK STATE ENVIRONMENTAL
FACILITIES CORPORATION
(Selected Provisions)
1282. New York state environmental facilities corporation.
1283. Purposes of the corporation.
1284. General powers of the corporation.
(Intervening sections omitted.)
1290. Notes and bonds of the corporation.
(Balance of sections omitted.)
§1282. New YOIK state environmental facilities corporation.
1. The "New York state pure waters authority" is hereby re-
constituted and continued as the "New York state environmental
facilities corporation." Reference in any provision of law,
general, special or local, or in any rule, regulation or public
document to the New York state pure waters authority shall be
deemed to be and construed as a reference to the corporation
continued by this section. The corporation shall be a body
corporate and politic constituting a public benefit corpora-
tion. Its membership shall consist of seven directors: the
commissioner of environmental conservation who shall be chair-
man of the corporation, the commissioner of health, the commis-
sioner of the office for local government, and four directors
appointed by the governor by and with the advice and consent
of the senate.
§1283. Purposes of the corporation.
1. The purposes of the corporation shall be the planning,
- 29 -
-------
financing, construction, maintenance and operation of sewage
treatment works, sewage collecting systems, air pollution
control facilities, water management facilities, storm water
collecting systems and solid waste disposal facilities, the
construction on behalf of municipalities and state agencies
of sewage treatment works, sewage collecting systems, air
pollution control facilities, water management facilities,
storm water collecting systems and solid waste disposal facil-
ities and the assistance of municipalities, state agencies, the
state and persons in the planning, financing, construction,
maintenance and operation of sewage treatment works, sewage
collecting systems air pollution control facilities, water
management facilities, storm water collecting systems and
solid waste disposal facilities, in accordance with the pro-
visions of this title.
§1284. General powers of the corporation.
Except as otherwise limited by this title, the corporation
shall have power:
1. To sue and be sued;
2. To have a seal and alter the same at pleasure;
3. To borrow money and issue negotiable notes, bonds or other
obligations and to provide for the rights of the holders thereof;
4. To invest any funds held in reserve or sinking funds, or
any monies not required for immediate use or disbursement, at
the discretion of the corporation, in obligations of the state
or the United States of America, in obligations the principal
and interest of which are guaranteed by the state or the United
States of America, or in deposits with such banks or trust
companies as may be designated by the corporation. Each such
bank or trust company deposit shall be continuously and fully
secured by direct obligations of the state or the United States
of America, of a market value equal at all times to the amount
of the deposit, and all banks and trust companies are hereby
authorized to give such security;
5. To make and alter by-laws for its organization and internal
management, and rules and regulations governing the exercise
of its powers and the fulfillment of its purposes under this
title;
6. To enter into contracts and leases and to execute all
- 30 -
-------
instruments necessary or convenient or desirable for the pur-
poses of the corporation or to carry out any powers expressly
given it in this title;
7. To acquire, purchase, hold, lease as lessee, dispose of and
use any real or personal property or any interest therein nec-
essary, convenient or desirable to carry out the purpose of this
title and to sell, lease as lessor, transfer and dispose of
any property or interest therein at any time required by it in
the exercise of its powers;
8. To appoint such officers and employees as it may require
for _ the performance of its duties, and to fix and determine
their qualifications, duties and compensation and to retain
or employ counsel, auditors, engineers and private consultants
on a contract basis or otherwise for rendering professional
or technical services and advice;
9. To make plans, surveys and studies necessary, convenient
or desirable to the effectuation of the purposes and powers of
the corporation and to prepare recommendations in regard thereto,
provided that such plans, surveys, studies and recommendations
shall be in conformity with any comprehensive studies and reports
on the collection, treatment and disposal of sewage conducted
and approved pursuant to the provisions of section 1263a of the
public health law, on the collection, treatment and disposal
of refuse conducted and approved pursuant to the provisions
of title IX of the public health law, and on public water
supply systems conducted and approved pursuant to the pro-
visions of part V-A of Article V of the conservation law and
on the control and abatement of air pollution conducted and
approved pursuant to the provisions of title II, article
12A of the public health law;
10- To enter upon such lands, waters, or premises as in the
judgment of the corporation may be necessary, convenient or
desirable for the purpose of making surveys, soundings, borings
and examinations to accomplish any purpose authorized by this
title, the corporation being liable for actual damage done;
11. To conduct investigations and hearings in the furtherance
of its general purposes, and in aid thereof to have access to
any books, records or papers relevant thereto; and if any per-
son whose testimony shall be required for the proper perfor-
mance of the duties of the corporation shall fail or refuse
to aid or assist the corporation in the conduct of any inves-
tigation or hearing, or to produce any relevant books, re-
cords or other papers, the corporation is authorized to apply
- 31 -
-------
for process of subpoena, to issue out of any court of general
original jurisdiction whose process can reach such person, upon
due cause shown;
12. To acquire municipal bonds and notes of certain state
agencies, and to make loan commitments and loans >to munici-
palities and certain state agencies, and to enter into option
arrangements with municipalities for the purchase of municipal
bonds and notes;
13. To sell any municipal bonds or notes, other securities,
or other personal property acquired by the corporation when-
ever it is determined by the corporation that the sale of such
property is desirable; municipal bonds and notes acquired by
the corporation shall be sold by the corporation only at
public sale at such price or prices as it shall determine,
and a notice of such sale shall be published at least once
at least five days prior to the date of such sale in a finan-
cial newspaper or journal published in the City of New York;
the proceeds of the sale by the corporation of any municipal
bonds or notes shall be required to be held for the benefit
of the bonds and notes and interest thereon entitled to be
paid therefrom, or shall be used to purchase, or applied to-
wards the redemption of bonds or notes, at not more than the
redemption price then applicable, plus accrued interest to
the next payment date thereon, or, if not then redeemable, at
a premium of not more than the redemption price applicable on
the first date after such purchase upon which the bonds or
notes become subject to redemption, plus accrued interest to
said date, all subject to such agreements with bondholders or
noteholders as may then exist;
14. To accept any gifts or grants or loans of funds or prop-
erty from the federal government or from the state or from
any other federal or state public body or political subdivi-
sion or any other person and to comply, subject to the pro-
visions of this title, with the terms and conditions thereof;
15. To appoint such advisory committees as may be necessary,
convenient or desirable to the effectuation of the purposes
and powers of the corporation; and
16. To do all things necessary, convenient or desirable to
carry out its purposes and for the exercise of the powers
granted in this title.
- 32 -
-------
§1290. Notes and bonds of the corporation.
1. (a) The corporation shall have power and is hereby author-
ized from time to time to issue its negotiable bonds and notes
in conformity with applicable provisions of the uniform com-
mercial code in such principal amount, as, in the opinion of
the corporation, shall be necessary to provide sufficient funds
for achieving its purposes, including the acquisition and con-
struction, operation and maintenance of sewage treatment works,
sewage collecting systems, solid waste disposal facilities, storm
water collecting systems, water management facilities, air
pollution control facilities and any other project or pro-
jects authorized pursuant to the provisions of this title,
and paying the cost thereof, the purchase of notes, and bonds
and notes of a state agency, the payment of the cost of any
project, the payment of interest on bonds and notes of the
corporation, the establishment of reserves to secure such
bonds and notes , the provision of working capital and all other
expenditures of the corporation incident to and necessary or
convenient to carry out its purposes and powers:
(b) The corporation shall have power, from time to time, to
issue renewal notes, to issue bonds to pay notes and whenever
it deems refunding expedient, to refund any bonds by the issu-
ance of new bonds whether the bonds to be refunded have or
have not matured, and to issue bonds partly to refund bonds
then outstanding, and partly for any other purpose. The re-
funding bonds shall be sold and the proceeds applied to the
purchase, redemption or payment of the bonds to be refunded;
(c) Except as may otherwise be expressly provided by the cor-
poration, every issue of its notes or bonds shall be general ob-
ligations of the corporation payable out of any revenues or
monies of the corporation, subject only to any agreements with
the holders of particular notes or bonds pledging any particular
notes or bonds particular receipts or revenues;
2. The notes and bonds shall be authorized by resolution of
the directors of the corporation, shall bear such date or dates,
and shall mature at such time or times, in the case of any
such note or any renewals thereof not exceeding five years from
the date of issue of such original note, and in the case of
any such bond not exceeding 40 years from the date of issue,
as such resolution or resolutions may provide. The notes and
bonds shall bear interest at such rate or rates, be in such
denominations, be in such form, either coupon or registered,
carry such registration privileges, be executed in such manner,
- 33 -
-------
be payable in such medium of payment, at such place or places
arid be subject to such terms of redemption as such resolution
or resolutions may provide. The notes and bonds of the cor-
poration may be sold by the corporation, at public or private
sale, at such price or prices as the corporation shall deter-
mine. No notes or bonds of the corporation may be sold by
the corporation at private sale, however, unless such sale and
the terras thereof have been approved in writing by (a) the comp-
troller,, where such sale is not to the comptroller, or (b) the
director of the budget, where such sale is to the comptroller.
3, Any resolution or resolutions authorizing any notes or bonds
or any issue thereof may contain provisions, which shall be a
part of the contract with the holders thereof, as to:
(a) pledging all or any part of the rentals, rates, charges
and other fees made or received by the corporation and other
monies received or to be received from the ownership or
operation or otherwise in connection with any project or pro-
jects and all or any part of the monies received in payment
of principal or interest on bonds or notes of any state agency
and municipal bonds or notes acquired by the corporation, to
secure the payment of the notes or bonds or of any issue there-
of, subject to such agreements with bondholders or noteholders
as may then exist;
(b) pledging all or any part of the assets of the corporation
including municipal bonds and notes acquired by the corporation,
to secure the payment of the notes or bonds or of any issue of
notes or bonds, subject to such agreements with noteholders or
bondholders as may then exist;
(c) the use and disposition of rentals, rates, charges and
other fees made or received by the corporation;
(d) the setting aside of reserves or sinking funds and the
regulation and disposition thereof from the ownership or op-
eration or otherwise in connection with any project or pro-
jects and of the gross income from municipal bonds and notes
and bonds and notes of any state agency owned by the corporation;
(e) limitations on the purpose to which the proceeds of sale
of notes or bonds may be applied and pledging such proceeds to
secure the payment of the notes or bonds or of any issue thereof;
(f) limitations on the issuance of additional notes or bonds;
the terms upon which additional notes or bonds may be issued
- 34 -
-------
and secured; the refunding of outstanding or other notes or
bonds;
(g) the procedure, if any, by which the terms of any contract
with noteholders or bondholders may be amended or abrogated,
the amount of notes or bonds the holders of which must consent
thereto, and the manner in which such consent may be given;
(h) limitations on the amount of monies to be expended by the
corporation for operating, administrative or other expenses of
the corporation;
(i) vesting in a trustee or trustees such property, rights,
powers and duties in trust as the corporation may determine,
which may include any or all of the rights, powers and duties
of the trustee appointed by the bondholders pursuant to this
title, and limiting or abrogating the right of the bondholders
pursuant to this title, and limiting or abrogating the right
of the bondholders to appoint a trustee under this article or
limiting the rights, powers and duties of such trustee;
(j) any of the matters, of like or different character, which
in any way affect the security or protection of the notes and
bonds.
4. In addition to the powers herein conferred upon the cor-
poration to secure its notes and bonds, the corporation shall
have power in connection with the issuance of notes and bonds
to enter into such agreements as the corporation may deem nec-
essary, convenient or desirable concerning the use or disposi-
tion of its monies or property including the mortgaging of any
such property and the entrusting, pledging or creation of any
other security interest in any such monies or property and the
doing of any act (including refraining from doing any act)
which the corporation would have the right to do in the absence
of such agreements. The corporation shall have power to enter
into amendments of any such agreements within the powers granted
to the corporation by this title and to perform such agree-
ments. The provisions of any such agreements may be made a part
of the contract with the holders of the notes and bonds of the
corporation.
5. It is the intention hereof that any pledge, mortgage or
security instrument made by the corporation shall be valid and
binding from the time when the pledge, mortgage or security in-
strument is made; that the monies or property so pledged, mort-
gaged and entrusted and thereafter received by the corporation
- 35 -
-------
shall immediately be subject to the lien of such pledge, mort-
gage or security instrument without any physical delivery there-
of or further act; and that the lien of any such pledge, mort-
gage or security instrument shall be valid and binding as
against all parties having claims of any kind in tort, contract
of otherwise against the corporation, irrespective of whether
such parties have notice thereof. Neither the resolution nor
any mortgage, security instrument or other instrument by which
a pledge, mortgage lien or other security is created need to
be recorded or filed and the corporation shall not be required
to comply with any of the provisions of the uniform commercial
code.
6. Neither the directors of the corporation nor any person exe-
cuting the notes or bonds shall be liable personally on the
notes or bonds or be subject to any personal liability or ac-
countability by reason of the issuance thereof.
7. The corporation, subject to such agreements with noteholders
or bondholders as may then exist, shall have power out of any
funds available therefor to purchase notes or bonds of the cor-
poration, which shall thereupon be cancelled, at a price not
exceeding (a) if the notes or bonds are then redeemable, the
redemption price then applicable plus accrued interest to the
next interest payment thereon, or (b) if the notes or bonds are
not then redeemable, the redemption price applicable on the
first date after such purchase upon which the notes or bonds
become subject to redemption plus accrued interest to such date.
8. Neither the state nor any municipality shall be liable on
notes or bonds of the corporation and such notes and bonds
shall not be a debt of the state or any municipality,, and such
notes and bonds shall contain on the face thereof a statement
to such effect.
Source; New York; N.Y. Public Authorities Law §§1282-
1296(Supp. 1972).
2.5 Authority to Assure in Implementation of Its Waste
Treatment Management Plan That Each Participating Com-
munity Pay Its Proportionate Share of Treatment Costs.
[§208(c) (2) (G) ].
As noted in the Format to State Reports (Paragraph 2.5, Appen-
dix B), very few states have legislation expressly granting
to a waste treatment management agency authority to assure
- 36 -
-------
that each participating community pay its proportionate share
of treatment costs. The following suggested legislation en-
compasses situations in which the agency is one of the communi-
ties and is serving other communities and in which the agency
is a separate entity (not one of the communities being served)
serving two or more communities. The interlocal agreement
statutes set forth in part 2.8 are particularly pertinent to
situations involving agreements between and among local units
of government.
A. APPORTIONMENT OF COSTS AMONG COMMUNITIES PROVISION.
Purpose: Authorize one community operating a treatment
works to contract with one or more other communities to
furnish them treatment services.
Community apportionment provision:
"A Community [municipality] may contract with one or more other
communities to furnish such other communities waste treatment
services at such rates and for such charges to which the parti-
cipating communities may agree; provided, however, that such
rates and charges assessed such communities being served shall
represent the proportionate cost of treatment attributed to
treating the wastes of each participating community including
the community furnishing the services."
Source: Suggested by authors.
Note: See also Interlocal Contracts and Agreements
(Part 2.8).
B. PROVISION FOR PROPORTIONATE RATES FOR COMMUNITIES
WHICH JOINTLY OWN AND OPERATE TREATMENT WORKS.
Purpose: Allow communities to apportion costs when they
jointogether for a common treatment facility.
Proportionate costs for a common facility provision:
"The legislative body of any such governmental agency or muni-
cipality or the respective legislative bodies of such govern-
mental agencies and municipalities, who may have agreed to
jointly own and operate intercepting sewers or sewage treatment
plants, may create a separate board or may designate certain
officials of the governmental agencies or municipalities, to have
- 37 -
-------
the supervision and control of such intercepting sewers or
sewage and garbage disposal plants. The legislative body,
respective legislative bodies, or such board may make all neces-
sary rules and regulations governing the use, operation, and
control thereof. The legislative body or respective legisla-
tive bodies may establish just and equitable rates or charges
to be paid to them for the use of such disposal plant and
system by each person, firm or corporation whose premises are
served thereby, and such rates or charges may be certified to
the tax assessor and assessed against the premises served, and
collected or returned in the same manner as other county or
municipal taxes are certified, assessed, collected and returned."
Source; Michigan; Mich. Comp. Laws Ann. §123.243(1967).
Note: See also Interlocal Contracting and Joint
Enterprises in Part 2.8.
C. PROVISION FOR A SEPARATE AGENCY TO SERVE SEVERAL
COMMUNITIES.
Purpose: Allow an agency, not one of the participating
communities, to serve two or more communities.
Service by separate agency provision:
"The cost of treatment shall be allocated in proper proportion
to each city [municipality, community, etc.] within the juris-
diction of, and being served by, the [agency], upon the basis
of the total annual volume of sewage contributed by each city
as the same shall be measured or estimated and each such city
shall pay such share of the total cost thereof as the volume
pay such share of the total cost thereof as the volume of
sewage contributed by the city and the territory served by
such city under contract or otherwise bears to the total volume
of sewage. In such estimate of the costs to be borne by each
city, there shall be taken into account not only the sewage and
wastes of each such city that are intercepted and treated,
but an estimate shall be made of the sewage wastes of each
city which enter or are discharged directly or indirectly into
any stream or watercourse flowing through or adjacent to such
district or any part thereof and such untreated sewage and
wastes shall be considered as contributed by such city."
Source: Adapted from Minnesota; Minn. Stat. Ann. §445.17
(1)(Supp. 1972).
- 38 -
-------
D. DEFINITION OF "COST OF TREATMENT."
Purpose; Define "cost of treatment" in light of provisions
for proportionate sharing of costs by communities.
Definition of "cost of treatment:"
"In determining a participating community's proportionate
share of cost of treatment, such proportionate share shall
reflect the differences in cost of treatment as among all
participating communities including, but not limited to,
differences based on (i) the different types of service fur-
nished users in each participating community, (ii) the loca-
tion of each participating community and the various users
within each community, (iii) the cost of maintenance opera-
tion repair and replacement of the various components of the
system necessary to serve each community, (iv) the quantity
and characteristics of the waste delivered for treatment and
the time of delivery by each community, and (v) and any other
matters which present a reasonable basis for apportioning
costs of treatment among participating communities."
Source: Suggested by authors.
2.6 Authority to Refuse to Receive Any Wastes from Any
Municipality or Subdivision Thereof, Which Does Not
Comply with Any Provisions of an Approved Plan Under
§202 Applicable to Such Area. [§ 208(c) (2) (H) ].
As noted in the Format to State Reports (Paragraph 2.6, Ap-
pendix B), the required authority to refuse to receive muni-
cipal wastes poses somewhat unusual legal problems. If a
treatment management agency is servicing a municipality by
treating its wastes, can it "cut-off" the service if the
municipality does not comply with an approved areawide plan?
It is doubtful that such agency could or would do this on a
municipality-wide scale since residential users and public
users (schools, hospitals, etc.) would be affected. A some-
what more restricted and practical application of this
authority to refuse to receive wastes is (i) that it apply
prospectively to deny new or additional "hook-up" with the
system (the effect of which would be to prevent further de-
velopment and growth of a community or subdivision until com-
pliance is had with the areawide plan) and (ii) that such
authority include lesser sanctions such as penalties, sur-
charges and similar charges. A third possibility is the
authority of the treatment agency to cut-off particular users
- 39 -
-------
within the municipality if the municipality's failure to
comply is based on that particular user's or category of users'
effluent. (See suggested legislation in Part 2.9 for legisla-
tion authorizing a "take-over" of the water quality manage-
ment of noncomplying community by the state or areawide agency.)
The legislation suggested below provides the management agency
with a broad range of regulatory controls and with sanctions
which it may invoke for violations of rules and regulations
including provisions of the areawide plan. While most agencies
currently possess some sanctions which they may invoke for
violations of their ordinances, rules or regulations, these
generally apply only to individual dischargers rather than to
entire communities. Section 7 of the following suggested
legislation remedies this problem by giving the agency a civil
sanction which can be applied to municipal corporations. Of
course, where the noncomplying community is not a corporate
body a monetary penalty could not be assessed. Section 4 of
the following suggested legislation deals with the problem of
denying new or additional hook-ups, it authorizes the agency
to refuse to connect such communities or users within such
communities to its system where the communities fail to
comply with any provisions of the areawide waste treatment
management plan.
A. WASTEWATER CONTROL PROVISION.
Purpose: To empower waste treatment management agencies
to apply monetary sanctions to communities failing to
comply with the areawide waste treatment management
plan and to refuse to connect such communities to its
system.
Wastewater control provision:
Section 1. Supervision and Regulation of Sewage Disposal
The [agency] shall supervise and regulate water quality control
and sewage disposal within its jurisdiction, including the
fixing of standards, contracts, issuance of licenses or per-
mits , practices and schedules for, or in connection with,
water quality control and sewage disposal functions of such
[agency].
Section 2. Regulations; Authority of [Agency].
Without limiting in any way the provisions of this division,
- 40 -
-------
and in addition to the powers granted therein, the [agency]
may make and enforce such regulations for the control of
quantity, quality and flow of wastewater within the boundaries
of the [agency] as are not in conflict with the general laws
of the state. "Wastewater" shall include all sewage, industrial
and other wastes and waters, whether treated or untreated, dis-
charge/into or permitted to enter a community sewer system
connected directly or indirectly to, the [agency] interceptor
for treatment in sewage disposal facilities of the [agency].
Section 3. Scope and Content of Rules and Regulations.
Rules and regulations pertaining to the control of quantity,
quality or flow of wastewater may provide for any or all of
(a) Periodic technical reports to the [agency] from
contributors or dischargers into the [agency]
system.
(b) The issuance of permits or licenses by the [agency]
as a condition of discharging wastewater for treat-
ment in sewage disposal facilities of the [agency].
(c) The installation by the contributor or discharger of
wastewater sampling and inspection facilities.
(d) Procedures for enforcement of wastewater standards
and regulations adopted by the [agency] and remedies
for violation thereof, including assessment of sur-
charges and penalties.
(e) The installation by the contributor or discharger or
pretreatment works or facilities.
(f) Entry by the [agency] upon private property to make
surveys, inspections or samplings.
(g) Provision for protection of industrial or commercial
secrets of contributors or dischargers subject to
reporting or inspection or both.
(h) Refusal to accept into the sewage disposal facilities
of the [agency] wastewater which does not meet ap-
propriate pretreatment standards of the [agency].
- 41 -
-------
(i) Such other provisions as are necessary to effectuate
the control of the quantity, quality and flow of
wastewater within the [agency].
Section 4. Control of connections by [agency].
Where any incorporated or unincorporated community fails to
conform with any provision of an areawide waste treatment
management plan in effect for the area in which such community
is located, the [agency] shall have the power to regulate, limit,
terminate, deny or otherwise control connections of that com-
munity's sewer system with the sewage disposal facilities of
the [agency].
Section 5. Nuisance.
No person or community shall discharge wastewater into a com-
munity sewer system connected to or directly into the [agency]
interceptor which will result in contamination, pollution or
a nuisance. All discharges of wastewater which are, or could
be, harmful to or unreasonably affect the sewage disposal
facilities of the [agency], or which impair or unreasonably
affect the operation and maintenance of such facilities, or
which violate quantity, quality and flow standards adopted by
the [agency], and all wastewater discharges which unreasonably
affect, or could unreasonably affect, the quality of the
[agency's] treatment plant effluent in such a manner that re-
ceiving water quality requirements established by law cannot
be met by the [agency] shall constitute a nuisance for the
purposes of this act.
Section 6. Injunction.
Whenever a discharge of wastewater by a person or community
is in violation of the [agency's] regulations or otherwise
causes or threatens to cause a condition of contamination,
pollution or nuisance, as defined in this act, the [agency]
may petition the [district court] for the issuance of a pre-
liminary or permanent injunction, or both, as may be appropriate,
restraining the continuance of such discharge. In any civil
action brought under this section, it shall not be necessary
to allege or prove at any stage of thy proceedings that
irreparable damage will occur should the temporary restrain-
ing order, preliminary injunction or permanent injunction not
be issued or that the remedy at law is inadequate, and the
temporary restraining order, preliminary injunction or
- 42 -
-------
permanent injunction shall issue without such allegations and
without such proof,
Section 7. Civil Liability, Enforcement,
(a) Any person, or municipal corporation who intentionally
or negligently violates any order issued by the [agency] for
violation of rules regulating or prohibiting discharge of
wastewater which causes or threatens to cause a condition of
contamination, pollution or nuisance, as defined in this act,
may be liable civilly in a sum not to exceed [ ]
for each day in which such violation occurs.
(b) The [agency] shall petition the [district court] to impose,
assess and recover such sums. In determining such amount, the
court shall take into consideration all relevant circumstances,
including, but not limited to, the extent of harm caused by the
violation, the nature and persistence of the violation, the
length of time over which the violation occurs and corrective
action, if any, attempted or taken by the discharger.
Section 8. Misdemeanor.
Any person who intentionally discharges wastewater in any man-
ner, in violation of any order issued by the [agency], which
results in contamination, pollution or a nuisance, as defined
in this act, is guilty of a misdemeanor.
Section 9. Abatement Actions; Parties Defendant,
Any abatement action taken pursuant to the foregoing sections
with respect to contamination, pollution or nuisance,, as de-
fined in this act, created by the discharge of wastewater into
the [agency's] sewer system shall be taken against the agent
or agency operating such community's system and the contributor
or contributors whose waste creates the contamination, pol-
lution or nuisance.
Section _1_0_. Entry Upon Private Property ? ^Inspections .
The [agency] may enter upon private property of any person and
sample it, inspect or survey the wastewater sampling instal-
lation or pretreatment facilities or processes or any contributor
or discharger to ascertain whether [agency] regulations for
control of quantity, quality and flow of wastewater are being
- 43 -
-------
complied wibh. Such inspection shall be made with the consent
o: the owner or possessor of such facilities or, if such con-
sent is refused, with a warrant duly issued pursuant to [ap-
pr ynriate state law] „ However, in the event of an emergency
;.!,.•:•- ctinq the public health or safety, such inspection may
be mart;- without the consent or the issuance of a warrant„
•T'j-,,0 T - rrency ] may terminate or cause to be terminated sewage
di.--}.. .'Gdl services to such property if a violation of any
rule or regulation pertaining to control of wastewater is
fc-anc to exist or if a discharge of wastewater causes or
threatens to cause a condition of contamination, pollution
or Vi'.i.isai-ce as defined in this act.
Sources: Section 4 was adapted from an Illinois statute;
iTIT~Ann. Stat. 42 §306.2(Supp. 1972), The remainder
of the model was adapted with some revisions, from a
California statute; California Public Utilities Code,
5§13570 through 13578(Supp. 1972).
2.7 Authority to Accept for Treatment Industrial Wastes.
[§203 ,'cM2) (T) ] .
It is deemed that the purpose, among others, of this pro-
vision of the Act is to encourage industry to use the services
of the treatment management agency with the overall economies
jr scale which may result. Most agencies have authority,
either express or implied, to accept industrial wastes for
t.i eatment.,
If .? treatment ageacy has the authority to accept for treat-
ment industrial wastes, it should also have the authority (i)
to set the criteria for acceptance of such wastes in order
to protect its treatment works and, (ii) if such criteria
are not met, to refuse to accept such industrial wastes for
treatment. Pursuant to § 208(b) (2) (C) (iii) of the Act, the
areawide waste treatment management plan must establish a
^eguiat~r/ program to assure that any industrial wastes dis-
charged into a treatment works meet applicable pretreatment
requirements Thus, a treatment management agency should
have the right to refuse any effluent which in its judgment
damage its treatment works and thus endanger water quality.
The following suggested legislation responds to this problem.
A. PROVISION FOR SUPERVISION AND REGULATION OF
SEWAGE DISPOSAL (INCLUDING INDUSTRIAL WASTES).
f^ii.?.:!?: '-° authorize treatment agencies to require
44
-------
pretreatment of industrial wastes and to refuse to accept
industrial wastes which do not meet pretreatment standards
Supervision and regulation provision:
Section 1. Regulations: Authority of
[Governing Body]
In addition to the rights, powers, and authority granted
by any other act, the [governing body] of any [agency] may
make and enforce such regulations for the control of quantity,
quality and flow of waste water within the boundaries of
the [agency] as are not in conflict with the general laws of
the state. "Waste water" shall include all sewage, industrial
and other wastes and waters, whether treated or untreated,
discharged into or permitted to enter a community sewer sys-
tem connected to or directly discharging into the [agency]
interceptor for treatment in sewage disposal facilities of
the [agency].
Section 2: Scope and Content of
Rules and Regulations
Rules and regulations pertaining to the control of quality,
quantity or flow of waste water may provide for any or all
of the following:
(a) Periodic technical reports to the [agency] from con-
tributors or dischargers into the [agency] system.
(b) The issuance of permits or licenses by the [agency] as
a condition of discharging wastewater for treatment in
sewage disposal facilities of the [agency].
(c) The installation by the contributor or discharger of
wastewater sampling and inspection facilities.
(d) Procedures for enforcement of wastewater standards and
regulations adopted by the [agency] and remedies for
violations thereof, including assessment of surcharges
and penalties.
(e) The installation by the contributor or discharger of
pretreatment works or facilities.
- 45 -
-------
(f) Entry by the [agency] upon private property to make
surveys, inspections or samplings.
(g) Provision for protection of industrial or commercial
secrets of contributors or dischargers subject to re-
porting or inspection regulations or both on application
of such contributors or dischargers.
(h) Refusal to accept into the sewage disposal facilities
of the [agency] wastewater which does not meet appro-
priate standards of the [agency].
(i) Such other provisions as are necessary to effectuate
the control of the quantity, quality and flow of waste-
water within the [agency].
Source: This model was adapted from §§13571 and 13572
of the California Public Utilities Code (Supp. 1972).
Other provisions of this Code are set forth in Part 2.6
of this appendix.
B. PROVISION AUTHORIZING ACCEPTANCE OF INDUSTRIAL WASTES.
Purpose: To authorize acceptance for treatment of in-
dustrial wastes provided that compliance is had with pre-
treatment standards and the treatment works operation
will not be adversely affected.
Acceptance of industrial wastes provision:
"The [agency] in operation of its treatment works shall have
the authority to accept for treatment industrial wastes pro-
vided (i) that such industrial wastes are pretreated in ac-
cordance with pretreatment standards established by the [agency]
and (ii) that such industrial wasets are susceptible to treat-
ment by such treatment works and will not adversely affect
its operation."
Source; Suggested by authors.
2.8 Interlocal Cooperation. Among Agencies
Though numerous forms of local governmental organizations exist
which have the legal capability to deal with water quality con-
trol within or closely adjacent to their territorial jurisdic-
tions , most cannot deal with areawide problems without the co-
operation of other units of local government. Grant eligibility
- 46 -
-------
of local units of government will in many cases depend on their
capability to act cooperatively to solve water quality problems
of areawide scope. With respect to the requirements of §208
(c)(2) of the Act, such capability will be specifically required
in order to insure that each community receiving services from
a grant funded multi-community facility will, among other things,
pay its proportionate share of the cost of such services.
More broadly, however, where areawide plans call for construc-
tion and operation of facilities jointly by a number of com-
munities, formal interlocal cooperation will be required to
create the legal structures for undertaking and administering
such projects. Two useful mechanisms exist for legally struc-
turing such cooperation -- interlocal contracts and agreements,
and metropolitan special districts.
2.8.1 Interlocal Contracts and Agreements
Interlocal contracts and agreements offer the most rudimentary,
flexible and popular means of achieving integration of services
across local, state, and even national boundaries. Though all
such arrangements constitute contracts of one form or another,
the discussion herein and the following legislative models
follow the normal practice of referring to contracts for joint
exercises of their powers by contracting parties as "agreements,"
and to contracts whereby one party "sells" services to another
as "contracts." Statutes authorizing such contracts and agree-
ments may be either specific, applying to a specific govern-
mental function, or general, applying to a broad range of dele-
gable governmental functions. General statutes authorizing
interlocal cooperation exist, in one form or another, in a
large majority of the states.
Interlocal contracts and agreements offer a number of benefits
to local governments. Services available through their use
are generally more varied than those which can be provided by
special districts, and may include some which smaller communi-
ties are not otherwise authorized to provide for themselves.
They provide local governments with a means of controlling
development in areas outside their boundaries, and possess a
high degree of political feasibility as they generally do not
require voter approval and do not alter the structure or
functional responsibilities of the local governments involved.
The formula agreed upon by the parties regarding the obligations
of each to pay for services will, except in extreme cases, be
acceptable as representing each party's proportionate share
of treatment costs as required by § 208 (c) (2) (G) . With respect
- 47 -
-------
to use of interlocal contracts and agreements to organize con-
struction of grant eligible facilities, their most serious defect
lies in their voluntary nature (though it should be kept in mind
in this context that acceptance of grants is itself voluntary).
As a result of this characteristic, where local motives and interests
oppose areawide interest, local interests will normally prevail.
The three legislative models set out below illustrate some of
the various kinds of interlocal cooperation statutes which the
agencies or political subdivisions can use.
A. INTERLOCAL COOPERATION AND JOINT ENTERPRISES.
Purpose: To allow local governments to cooperate in
order to make the most efficient and advantageous use
of their powers.
The optional language in brackets on lines three and four of Section
4 would restrict agreements to parties which are authorized to
carry out the jointly exercised function individually. Prior
to adoption of Section 8, Interlocal Contracts, study should be
made of existing state law governing contracts by local governments
to determine whether the provision should be enlarged to require
filing and to require additional (state) approval of such contracts.
Interlocal cooperation and joint enterprises provision:
Section 1. Purpose.
It is the purpose of this act to permit local governmental units
to make the most efficient use of their powers by enabling them
to cooperate with other localities on a basis of mutual advantage
and thereby to provide services and facilities in a manner and
pursuant to forms of governmental organization that will accord
best with geographic, economic, population, and other factors
influencing the needs and development of local communities.
Section 2. Short Title.
This act may be cited as the Interlocal Cooperation Act.
Section 3. Definitions.
For the purposes of this Act:
- 48 -
-------
(1) The term "public agency" shall mean any poli-
tical subdivision [insert enumeration, if desired] of this
state; any agency of the state government or of the United
States; and any political subdivision of another state.
(2) The term "state" shall mean a state of the United
States and the District of Columbia.
Section 4. Interlocal Agreements
(a) Any power or powers, privileges or authority exer-
cised or capable of exercise by a public agency of this state
may be exercised and enjoyed jointly with any other public
agency of this state [having the power or powers, privilege
or authority], and jointly with any public agency of any
other state or of the United States to the extent that
laws of such other state or of the United States permit such
joint exercise or enjoyment. Any agency of the state govern-
ment when acting jointly with any public agency may exercise
and enjoy all of the powers, privileges and authority con-
ferred by this act upon a public agency.
(b) Any two or more public agencies may enter into
agreements with one another for joint or cooperative ac-
tion pursuant to the provisions of this act. Appropriate
action by ordinance, resolution, or otherwise pursuant to
law of the governing bodies of the participating public
agencies shall be necessary before any such agreement may
enter into force.
(c) Any such agreement shall specify the following:
(1) Its duration.
(2) The precise organization, composition and
nature of any separate legal or administrative entity
created thereby together with the powers delegated thereto,
provided such entity may be legally created.
(3) Its purpose or purposes.
(4) The manner of financing the joint or cooper-
ative undertaking and of establishing and maintaining
a budget therefor,
(5) The permissible method or methods to be
employed in accomplishing the partial or complete term-
ination of the agreement and for disposing of property
upon such partial or complete termination.
_ 49 _
-------
(6) Any other necessary and proper matters.
(d) In the event that the-agreement does not establish
a separate legal entity to conduct the joint or cooperative
undertaking, the agreement shall, in addition to items 1,
3, 4, 5, and 6 enumerated in subdivision (c) hereof, contain
the following:
(1) Provision for an administrator or a joint
board responsible for administering the joint or co-
operative undertaking.. In the case of a joint board,
public agencies party to the agreement shall be repre-
sented .
(2) The manner of acquiring, holding and disposing
of real and personal property used in the joint or
cooperative undertaking.
(e) No agreement made pursuant to this act shall relieve
any public agency of any obligation or responsibility imposed
upon it by law except that to the extent of actual and timely
performance thereof by a joint board or other legal adminis-
trative entity created by an agreement made hereunder, said
performances may be offered in satisfaction of the obligation
or responsibility.
(f) Every agreement made hereunder shall, prior to
and as a condition precedent to its entry into force,
be submitted to the attorney general who shall determine
whether the agreement is in proper form and compatible
with the laws of this state, The attorney general shall ap-
prove any agreement submitted to him hereunder unless he
shall find that it does not meet the conditions set forth
herein and shall detail in writing addressed to the governing
bodies of the public agencies concerned the specific respects
in which the proposed agreement fails to meet the require-
ments of law. Failure to disapprove an agreement submitted
hereunder within [ ] days of its submission shall con-
stitute approval thereof.
L (g) Financing of joint projects by agreement shall
be as provided by law.]
Section 5. Filing, Status, and Actions.
Prior to its entry into force, an agreement made pursuant to this
act shall be filed with [the keeper of local public records]
50 -
-------
and with the [secretary of state]. In the event that an
agreement entered into pursuant to this act is between or
among one or more public agencies of this state and one
or more public agencies of another state or of the United
States said agreement shall have the status of an inter-
state compact, but in any case or controversy involving
performance or interpretation thereof or liability there-
under, the public agencies party thereto shall be real
parties in interest and the state may maintain an action
to recoup or otherwise make itself whole for any damages
or liability which it may incur by reason of being joined
as a party therein. Such action shall be maintainable
against any public agency or agencies whose default, fail-
ure or performance, or other conduct caused or contributed
to the incurring of damage or liability by the state.
Section 6. Additional Approval in Certain Cases
In the event that an agreement made pursuant to this act shall
deal in whole or in part with the provision of services of
facilities with regard to which an officer or agency of
the state government has constitutional or statutory powers
of control, the agreement shall, as a condition precedent
to its entry into force, be submitted to the state officer
or agency having such power of control and shall be approved
or disapproved by him or it as to all matters within his
or its jurisdiction in the same manner and subject to the
same requirements governing the action of the attorney general
pursuant to Section 4(f) of this act. This requirement of
submission and approval shall be in addition to and not in
substitution for the requirement of submission to and ap-
proval by the attorney general.
Section 7. Appropriations, Furnishing of Property,
Personnal and Service.
Any public agency entering into an agreement pursuant to
this act may appropriate funds and may sell, lease, give, or
otherwise supply the administrative joint board or other
legal or administrative entity created to operate the joint
or cooperative undertaking by providing such personnel or
services therefor as may be within its legal power to furnish.
Section 8. Interlocal Contracts.
Any one or more public agencies may contract with any one or
more other public agencies to perform any governmental service,
- 51 -
-------
activity, or undertaking which [[each public agency] or
[any of the public agencies]] entering into the contract
is authorized by law to perform, provided that suph con-
tract shall be authorized by the governing body of each
party to the contract. Such contract shall set forth fully
the purposes, powers, rights, objectives, and responsi-
bilities of the contracting parties.
Section 9. Separability.
[Insert separability clause.]
Section 10. Effective Date.
[Insert effective date.]
Source: Advisory Commission on Intergovernmental Re-
lations, 1967 State Legislative program of the Advisory
Commission on Intergovernmental Relations, Washington,
D. C. : October 1966, pp. 477-483. This model act was
adapted, with certain revisions from Council of State
Governments, Suggested State Legislation — Program
for 1957, Chicago,Illinois:Council of State Govern-
ments, October 1956, pp. 93-97.
B. INTERLOCAL COOPERATION ACT.
Purpose: To allow local governments to cooperate in
order to make the most efficient and advantageous use
of their powers and for this purpose to create an ef-
fective separate entity for management of their joint
ventures.
The primary difference between this act and the one preceeding
lies in its more detailed description of the entity created
to operate the joint undertaking [See Section 6], These pro-
visions, modeled primarily upon California and Iowa legis-
lation, envision the creation of an entity which could be
grant eligible in its own name. The wording employed by the
act would permit inclusiion in the agreement of units of local
government which otherwise would not be authorized to provide
the jointly exercised function for themselves. Another new
provision of the act is one which provides for the creation
of a joint planning agency for carrying out planning functions
under federal law [See Section 6 (c)]. As with the preceeding
model, prior to adoption of Section 10, Interlocal Contracts,
study should be made of existing state law governing contracts
by local governments to determine whether the provision should
be enlarged to require filing and to require additional (state)
approval of such contracts.
- 52 -
-------
Interlocal cooperation act:
Section 1. Purpose.
It is the purpose of this act to permit local governmental units
to make the most efficient use of their powers by enabling
them to cooperate with other localities on a basis of mutual
advantage and thereby to provide services and facilities in a
manner and pursuant to forms of governmental organization
that will accord best with geographic, economic, population,
and other factors influencing the needs and development of
local communities.
Section 2. Short Title.
This act may be cited as the Interlocal Cooperation Act.
Section 3. Public Agency Definition.
For the purposes of this act, the term "public agency" shall
mean any political subdivision [insert enumeration, if de-
sired] of this state; any agency of the state government
or of the United States; and any political subdivision of
another state. [If appropriate, add: The term "state"
shall mean a state of the United States and the District
of Columbia.]
Section 4. Interlocal Agreements.
If authorized by their governing bodies, two or more public
agencies by agreement may jointly exercise any or all functions
that a party to the agreement, its officers or agencies,
have authority to perform, even though one or more of the
contracting agencies may be located outside this state.
Section 5. Contents of Agreement.
(a) Any such agreement shall specify the following:
(1) Its duration, which may be perpetual.
(2) The precise organization, composition and
nature of any administrative board or separate public
entity created thereby together with the powers dele-
gated thereto.
- 53 -
-------
(3) Its purpose or purposes.
(4) The manner of financing the joint or coop-
erative undertaking and of establishing and maintaining
a budget therefor.
(5) The permissible method or methods to be
employed in accomplishing the partial or complete
termination of the agreement and for disposing of
property upon such partial or complete termination.
(6) Any other necessary and proper matters.
(b) In the event that the agreement does not by its
terms establish a separate public entity or designate one
or more of the parties to conduct the joint or cooperative
undertaking, the agreement shall, in addition to items 1,
3, 4, 5, and 6 enumerated in subdivision (a) hereof, con-
tain the following:
(1) Provision for or designation of a firm, cor-
poration, administrator, or joint board responsible for
administering the joint or cooperative undertaking. In
the case of a joint board, public agencies party to the
agreement shall be represented.
(2) The manner of acquiring, holding, and dis-
posing of real and personal property used in the joint
or cooperative undertaking.
(c) No agreement made pursuant to this act shall relieve
any public agency of any obligation or responsibility imposed
upon it by law except that to the extent of actual and timely
performance thereof by a joint board or other legal or ad-
ministrative entity created by an agreement made hereunder,
said performance may be offered in satisfaction of the obli-
gation or responsibility.
(d) Every agreement made hereunder shall, prior to and
as a condition precedent to its entry into force, be sub-
mitted to the attorney general who shall determine whether
the agreement is in proper form and compatible with the laws
of this state. The attorney general shall approve any agree-
ment submitted to him hereunder unless he shall find that
it does not meet the conditions set forth herein and shall
detail in writing addressed to the governing bodies of the
- 54 -
-------
public agencies concerned the specific respects in which the
proposed agreement fails to meet the requirements of law.
Failure to disapprove an agreement submitted hereunder within
[ ] days of its submission shall constitute approval
thereof,
Section 6. Administrative Entity.
(a) The entity provided by the agreement to administer or
execute the agreement may be one or more of the parties to the
agreement, an administrator or joint board, a firm or corpor-
ation, or a separate public entity designated in the agree-
ment. One or more of the parties may agree to provide all
or a portion of the services to the other parties in the
manner provided in the agreement. The parties may provide
for the mutual exchange of services without payment of any
consideration other than such services.
(b) If the agreement designates a separate public entity
to administer or execute the agreement, such entity shall
have power and is hereby authorized:
(1) To construct, repair, improve, expand, and
maintain, directly or by contract, acquire and operate
a project or projects necessary to carry out the pur-
poses of such agreement;
(2) To issue from time to time revenue bonds payable
from the revenues derived from such project or projects,
or any combination of such projects, to finance the
cost or part of the cost of the acquisition, construc-
tion, reconstruction, repair, extension or improvement
of such project or projects, including the acquisition
for the purposes of such agreement, of any property, real
or personal or mixed therefor. The power of the entity to
issue revenue bonds shall not be exercised until autho-
rized by resolution or ordinance duly adopted by parties
to the agreement. Parties to the agreement may not
withdraw or in any way terminate, amend, or modify in
any manner to the detriment of the bondholders said
agreement if revenue bonds or obligations issued in an-
ticipation of revenue bonds have been issued and are
then outstanding unpaid. TThe terms and manner of
issuing revenue bonds shall be as provided by state law.]
- 55 -
-------
(3) To apply for and accept from any federal agency
or any other source grants or other funds for or in
aid of the acquisition, construction, reconstruction,
repair, extension or improvement of a project or pro-
jects necessary to carry out the purposes of such agree-
ment and to subscribe to and comply with any rules and
regulations made by any federal agency with regard to
any grants or loans, or both, from any federal agency.
(c) A [enumerate planning commission, council of govern-
ments or similar organizations to which applicable] created
under the provisions of this act shall, upon designation
as such by the governor, serve as a [enumerate district,
regional or metropolitan as applicable] agency for compre-
hensive planning for its area for the purpose of carrying
out the functions as defined for such agency by federal,
state and local laws and regulations.
(d) A power granted by agreement or this act to the
administrator, joint board, firm, corporation, or separate
public entity designated to administer or execute the agree-
ment is subject to the restrictions upon the manner of
exercising such power of one of the contracting parties ,
which party shall be designated by the agreement.
Section 7. Filing, Status, and Actions.
Prior to its entry into force, an agreement made pursuant to
this act shall be filed with [the keeper of local public
records] and with the [secretary of state]. In the event
that an agreement entered into pursuant to this act is be-
tween or among one or more public agencies of this state
and one or more public agencies of another state or of the
United States said agreement shall have the status of an
interstate compact, but in any case or controversy involving
performance or interpretation thereof or liability there-
under, the public agencies party thereto shall be real parties
in interest and the state may maintain an action to recoup
or otherwise make itself whole for any damages or liability
which it may incur by reason of being joined as a party
therein. Such action shall be maintainable against any public
agency or agencies whose default, failure of performance,
or other conduct caused or contributed to the incurring of
damage or liability by the state.
Section 8. Additional Approval in Certain Cases.
In the event that an agreement made pursuant to this act
- 56 -
-------
shall deal in whole or in part with the provision of services
or facilities with regard to which an officer or agency of
the state government has constitutional or statutory powers
of control, the agreement shall, as a condition precedent
to its entry into force, be submitted, to the state officer
or agency having such power of control, and shall be approved
or disapproved by him or it as to all matters within his or
its jurisdiction in the same manner and subject to the same
requirements governing the action of the attorney general
pursuant to Section 5(d) of this act. The requirement of sub-
mission and approval shall be in addition to and not in sub-
stitution for requirement of submission to and approval by
the attorney general.
Section 9. Appropriations, Furnishing of Property,
Personnel and Service.
Any public agency entering into an agreement pursuant to this
act may appropriate ,funds and may sell, lease, give or other-
wise supply the party designated or entity created to operate
the joint or cooperative undertaking by providing such per-
sonnel or services thereof as may be within its legal power
to furnish.
Section 10. Interlocal Contracts.
Any one or more public agenciees may contract with any one or
more other public agencies to perform any governmental ser-
vice, activity, or undertaking which [[each public agency] or
[any of the public agencies]] entering into the contract is
authorized by law to perform, provided that such contract
shall be authorized by the governing body of each party to
the contract. Such contract shall set forth fully the pur-
poses, powers, rights, objectives, and responsibilities of
the contracting parties.
Section 11. Separability.
[Insert effective clause.]
Section 12. Effective Date.
[Insert effective date.]
Sources: Sections 1 through 5, and 7 through 12 were
taken, with minor modifications, from the model act of
the Advisory Commission on Intergovernmental Relations.
Sections 6(a) and 6(d) were taken from the California
Joint Exercise of Powers Act, California Government
- 57 -
-------
Code §§6506 and 6508. Sections 6(b)(l), 6(b)(2), and
6 (c) were taken with some modifications from the Iowa
Interlocal Cooperation Act, I. C. A. §28E.15, and the
Iowa Joint Financing of Public Works and Facilities Act,
I. C, A, §28E.3. Section 6(b)(3) was substantially ad-
apted from the Washington Emergency Public Works Act,
RCWA §39.28.020.
C. INTERLOCAL CONTRACTS AND AGREEMENTS FOR WASTE
TREATMENT ONLY.
Purpose: To allow local governments to cooperate in
order to make the most efficient and advantageous use
of their waste treatment powers.
Unlike the two preceeding statutes, the model below is de-
signed to authorize cooperation only for the specific purpose
of waste treatment (water quality control). As the operating
agency under this act will be one of the contracting parties,
grant eligibility of the joint undertaking will depend directly
on that of the operating agency. By changing the words "sewers
and sewage disposal facilities" to "waste treatment works,"
the scope of the area of cooperation is broadened to include
more than the conventional sewage treatment system.
Provision for interlocal waste treatment contracts :
"Any [enumerate local agencies to which applicable] owning
or operating its own sewers and sewage disposal facilities,
wherever topographic conditions shall make it feasible and
wherever such existing system shall be adequate therefor in
view of the requirements of the [local agencies] , served or
to be served by such system, may contract with any other
[local agencies] for the discharge into its sewer system of
sewage from all or any part or parts of such other [local
agencies] upon such terms and conditions and for such periods
of time as may be deemed reasonable. Any [local agencies]
may contract with any other [local agencies] for the construc-
tion or operation or both of any sewer or sewage disposal
facilities for the joint use and benefit of the contracting
parties upon such terms and conditions and for such period
of time as the governing bodies of the contracting parties
may determine. Any such contract may provide that the responsi
bility for the management of the construction or maintenance
or both and operation of any sewage disposal facilities or
part thereof covered by such contract shall be vested solely
-------
in one of the contracting parties, with the other party or
parties thereto paying to the managing party such portion
of the expenses thereof as shall be agreed upon,"
Source: Washington; Wash. Rev. Code Ann. §35,67.300(1965).
2.8.2 Metropolitan (Multi-Community)
Special Districts.
A metropolitan special district is an independent unit of local
government organized to perform one or several governmental
functions throughout a metropolitan area. Such districts differ
from the much more numerous urban special districts which serve
only a part, commonly an unincorporated part, of a metropolitan
area. Metropolitan special districts may be either limited
purpose,, performing one or only a few functions, or multi-
purpose, performing a variety of functions.
Metropolitan special districts offer a number of advantages in
the performance of urban functions. They provide an effective
means of dealing with areawide problems such as waste treatment
and water quality control. They are politically feasible as
they do not seriously threaten existing local governmental struc-
ture and may not require approval of the local electorate for
their creation.
Offsetting these advantages, at least with respect to limited
purpose districts, are a number of disadvantages. Proliferation
of limited purpose districts weakens the general purpose local
governments. Their single purpose nature leads their governing
bodies to ignore the impact of their activities on other govern-
mental functions. Further, as such districts are generally
designed to be self-supporting from their service charges, they
naturally devote their efforts to revenue producing facilities,
even though in a given case a non-revenue producing facility
might be more desirable. Finally they are generally less re-
sponsive to the populations they serve than are general pur-
pose local governments. These disadvantages are also charac-
teristic of multi-purpose districts except that, to the extent
that they have more functional responsibilities, they represent
less of a fragmentation of local government. However, their
multi-purpose nature decreases their political feasibility as
they appear more threatening to the general purpose local
governments whose responsibilities they assume.
A. METROPOLITAN SPECIAL DISTRICTS.
The Washington Metropolitan Municipal Corporation Act, set
- 59 -
-------
out in highly abridged form below, exemplifies the basic
structure and capabilities of multi-purpose metropolitan
special districts. The Municipality of Metropolitan Seattle
(Seattle Metro.), organized under this statute is discussed
at length in Section V of the report, "Problems and Ap-
proaches to Areawide Water Quality Management." Corporations
organized under this statute may be authorized to perform six
more or less related urban functions of sewage disposal,
garbage disposal, water supply, public transportation, parks
and parkways, and comprehensive planning on a multi-community
basis. As indicated in the Washington state report in Ap-
pendix B and the specific discussion of the Seattle Metro.
is essentially in compliance with the grant requirements con-
tained in §208(c)(2) of the Act. Its difficulties, as with
essentially all of the agencies covered by this report, lie
in its limited capability to refuse to accept wastes of com-
munities not in compliance with an areawide plan as required
by §208(c) (2) (H) of the Act. There is also the lack of clear
authority to recover from industrial dischargers the federal
portion of the cost of treatment works attributable to the
treatment of their wastes as required by §204(b) (1) (B) of the
Act. For remedial legislation, see §2.3.2 of this appendix.
Pircpose: To provide a cooperative arrangement in populous
areas for water quality control and other services.
Multi-community special district provision:
CHAPTER 35.58 -- WASHINGTON METROPOLITAN MUNICIPAL CORPORATIONS
ACT 35,58.010 Declaration of policy and purpose. It is hereby
declared to be the public policy of the state of Washington
to provide for the people of the populous metropolitan areas
in the state the means of obtaining essential services not
adequately provided by existing agencies of local government.
The growth of urban population and the movement of people
into suburban areas has created problems of sewage and garbage
disposal, water supply, transportation, planning, parks and
parkways which extend beyond the boundaries of cities, counties
and special districts. For reasons of topography, location
and movement of population, and land conditions and development
one or more of these problems cannot be adequately met by the
individual cities, counties and districts of many metropolitan
areas.
It is the purpose of this chapter to enable cities and counties
to act jointly to meet these common problems in order that the
proper growth and development of the metropolitan areas of the
- 60 -
-------
State may be assured and the health and welfare of the people
residing therein may be secured.
35.58.030 Corporations authorized. Any area of the state
containing two or more cities, at least one of which is a city
of the first class, may organize as a metropolitan municipal
corporation for the performance of certain functions, as pro-
vided in this chapter.
35.58.040 Territory which must be included or excluded —
Boundaries. At the time of its formation no metropolitan
municipal corporation shall include only a part of any city,
and every city shall be either wholly included or wholly
excluded from the boundaries of such corporation. If sub-
sequent to the formation of a metropolitan municipal corpora-
tion a part only of any city shall be included within the
boundaries of a metropolitan municipal corporation such part
shall be deemed to be "unincorporated" for the purpose of
selecting a member of the metropolitan council pursuant to
RCW 35.58.120 (3) and such city shall neither select nor par-
ticipate in the selection of a member of the metropolitan
council pursuant to RCW 35.58.120.
Any metropolitan municipal corporation now existing or here-
after created, within a class A county contiguous to a class
AA county, shall, upon May 21, 1971 as to metropolitan corp-
orations existing on such date or upon the date of formation
as to metropolitan corporations formed after the effective
date of this 1971 amendatory act, have the same boundaries
as those of the respective central county of such metropolitan
corporation: Provided, That the boundaries of such metro-
politan corporation may be enlarged after such date by
annexation as provided in chapter 35.58 RCW as now or hereafter
amended. Any contiguous metropolitan municipal corporations
may be consolidated into a single metropolitan municipal
corporation upon such terms, for the purpose of performing
such metropolitan function or functions, and to be effective
at such time as may be approved by resolutions of the respec-
tive metropolitan councils. In the event of such consolida-
tion the component city with the largest population shall be
the central city of such consolidated metropolitan municipal
corporation and the component county with the largest popula-
tion shall be the central county of such consolidated metro-
politan municipal corporation.
35.58.050 Functions authorized. A metropolitan municipal
- 61 -
-------
corporation shall have the power to perform any one or more
of the following functions, when authorized in the manner
provided in this chapter:
(1) Metropolitan sewage disposal.
(2) Metropolitan water supply.
(3) Metropolitan public transportation.
(4) Metropolitan garbage disposal.
(5) Metropolitan parks and parkways.
(6) Metropolitan comprehensive planning.
35.58.060 Unauthorized functions to be performed under
other law. All functions of local government which are not
authorized as provided in this chapter to be performed by
a metropolitan municipal corporation, shall continue to be
performed by the counties, cities and special districts within
the metropolitan area as provided by law.
35.58.070 Resolution, petition for election — Requirements,
procedure. A metropolitan municipal corporation may be created
by vote of the qualified electors residing in a metropolitan
area in the manner provided in this chapter. An election to
authorize the creation of a metropolitan municipal corporation
may be called pursuant to resolution or petition in the fol-
lowing manner:
(1) A resolution or concurring resolutions calling for
such an election may be adopted by either:
(a) The city council of a central city? or
(b) The city councils of two or more component cities
other than a central city; or
(c) The board of commissioners of a central county.
A certified copy of such resolution or certified copies
of such concurring resolutions shall be transmitted
to the board of commissioners of the central county.
35.58.110 Additional functions -- Authorized without elec-
tion. A metropolitan municipal corporation may be authorized
- 62 -
-------
to perform one or more metropolitan functions in addition to
those which it previously has been authorized to perform,
without an election, in the manner provided in this section.
A resolution providing for the performance of such additional
metropolitan function or functions shall be adopted by the
metropolitan council. A copy of such resolution shall be
transmitted by registered mail to the legislative body of
each component city and county. If, within 90 days after
the date of such mailing, a concurring resolution is adopted
by the legislative body of each component county, of each
component city of the first class, and of at least two-thirds
of all other component cities, and such concurring resolutions
are transmitted to the metropolitan council, such council shall
by resolution declare that the metropolitan municipal corpora-
tion has been authorized to perform such additional metropoli-
tan function or functions. A copy of such resolution shall be
transmitted by registered mail to the legislative body of each
component city and county and of each special district which
will be affected by the particular additional metropolitan
function authorized.
35.58.120 Metropolitan council -- Composition -- Chairman.
A metropolitan municipal corporation shall be governed by a
metropolitan council composed of the following:
(1) One member (a) who shall be the elected county exe-
cutive of the central county, or (b) if there shall
be no elected county executive, one member who shall
be selected by, and from, the board of commissioners
of the central county;
(2) One additional member for each county commissioner
district or county council district which shall con-
tain 15,000 or more persons residing within the
metropolitan municipal corporation, who shall be the
county commissioner or county councilman from such
district;
(3) One additional member selected by the board of com-
missioners or county council of each component county
for each county commissioner district or county coun-
cil district containing 15,000 or more persons re-
siding in the unincorporated portion of such commis-
sioner district lying within the metropolitan municipal
corporation each such appointee to be a resident of
such unincorporated portion;
- 63 -
-------
(4) One member from each component city which shall have
a population of 15,000 or more persons, who shall be
the mayor of such city, if such city shall have the
mayor-council form of government, and in other cities
shall be selected by, and from, the mayor and city
council of each of such cities.
(5) One member representing all component cities which have
less than 15,000 population each, to be selected by
and from the mayors of such smaller cities in the fol-
lowing manner: The mayors of all such cities shall
meet on the second Tuesday following the establishment
of a metropolitan municipal corporation and thereafter
on the third Tuesday in June of each even-numbered
year at 2:00 p.m. at the office of the board of county
commissioners of the central county. The chairman
of such board shall preside. After nominations are
made, successive ballots shall be taken until one
candidate receives a majority of all votes cast.
(6) One additional member selected by the city council of
each component city containing a population of 15,000
or more for each 50,000 population over and above the
first 15,000, such members to be selected from such
city council until all councilmen are members and
thereafter to be selected from other officers of such
city.
(7) For any metropolitan municipal corporation which shall
be authorized to perform the function of metropolitan
sewage disposal, one additional member who shall be
a commissioner of a sewer district which is a component
part of the metropolitan municipal corporation and
shall participate only in those council actions which
relate to the performance of the function of metro-
politan sewage disposal. The commissioners of all
sewer districts which are component parts of the metro-
politan municipal corporation shall meet on the first
Tuesday of the month following May 21, 1971 and there-
after on the second Tuesday of June of each even-
numbered year at 2:00 p.m. at the office of the board
of county commissioners of the central county. After
election of a chairman, nominations shall be made to
select a member to serve on the metropolitan council
and successive ballots taken until one candidate re-
ceives a majority of votes cast.
- 64 -
-------
(8) One member, who shall be chairman of the metropolitan
council, selected by the other members of the council.
He shall not hold any public office of or be an employee
of any component city or component county of the
metropolitan municipal corporation.
35.58.180 General powers of corporation. In addition to
the powers specifically granted by this chapter a metropolitan
municipal corporation shall have all powers which are necessary
to carry out the purposes of the metropolitan municipal cor-
poration and to perform authorized metropolitan functions. A
metropolitan municipal corporation may contract with the
United States or any agency thereof, any state or agency
thereof, any other metropolitan municipal corporation, any
county, city, special district, or governmental agency and
any private person, firm or corporation for the purpose of
receiving gifts or grants or securing loans or advances for
preliminary planning and feasibility studies, or for the de-
sign, construction or operation of metropolitan facilities
and a metropolitan municipal corporation may contract with any
governmental agency or with any private person, firm or cor-
poration for the use by either contracting party of all or any
part of the facilities, structures, lands, interests in lands,
air rights over lands and rights of way of all kinds which are
owned, leased or held by the other party and for the purpose
of planning, constructing or operating any facility or per-
forming any service which the metropolitan municipal corpora-
tion may be authorized to operate or perform, on such terms
as may be agreed upon by the contracting parties: Provided,
That before any contract for the lease or operation of any
metropolitan public transportation facilities shall be let
to any private person, firm or corporation, competitive bids
shall first be called upon such notice, bidder qualifications
and bid conditions as the metropolitan council shall determine.
A metropolitan municipal corporation may sue and be sued in
its corporate capacity in all courts and in all proceedings.
35.58.200 Powers relative to sewage disposal. If a metro-
politan municipal corporation shall be authorized to perform
the function of metropolitan sewage disposal, it shall have
the following powers in addition to the general powers granted
by this chapter:
(1) To prepare a comprehensive sewage disposal and storm
water drainage plan for the metropolitan area.
- 65 -
-------
(2) To acquire by purchase, condemnation, gift, or grant
and to lease,, construct, add to, improve, replace,
repair, maintain, operate and regulate the use of
metropolitan facilities for sewage disposal and storm
water drainage within or without the metropolitan area,
including trunk, interceptor and outfall sewers,
whether used to. carry sanitary waste, storm water, or
combined storm and sanitary sewage, lift and pumping
stations, sewage treatment plants, together with all
lands, properties, equipment and accessories neces-
sary for such facilities. Sewer facilities which are
owned by a city or special district may be acquired or
used by the metropolitan municipal corporation only
with the consent of the legislative body of the city
or special districts owning such facilities. Cities
and special districts are hereby authorized to convey
or lease such facilities to metropolitan municipal
corporations or to contract for their joint use on such
terms as may be fixed by agreement between the legis-
lative body of such city or special district and the
metropolitan council, without submitting the matter to
the voters of such city or district.
(3) To require counties, cities, special districts and other
political subdivisions to discharge sewage collected
by such entities from any portion of the metropolitan
area which can drain by gravity flow into such metro-
politan facilities as may be provided to serve such
areas when the metropolitan council shall declare by
resolution that the health, safety, or welfare of
the people within the metropolitan area requires such
action.
(4) To fix rates and charges for the use of metropolitan
sewage disposal and storm water drainage facilities.
35.58,210 Metropolitan sewer advisory committee. If a metro-
politan municipal corporation shall be authorized to perform
the function of metropolitan sewage disposal, the metropoli-
tan council shall, prior to the effective date of the assump-
tion of such function, cause a metropolitan sewer advisory
committee to be formed by notifying the legislative body of
each component city which operates a sewer system to appoint
one person to serve on such advisory committee and the board
of commissioners of each sewer district, any portion of which
lies within the metropolitan area, to appoint one person to
66 -
-------
serve on such committee who shall be a sewer district commis-
sioner. The metropolitan sewer advisory committee shall meet
at the time and place provided in the notice and elect a chair-
man. The members of such committee shall serve at the pleasure
of the appointing bodies and shall receive no compensation
other than reimbursement for expenses actually incurred in the
performance of their duties. The function of such advisory
committee shall be to advise the metropolitan council in matters
relating to the performance of the sewage disposal function.
35.58.360 Rules and regulations — Penalties -- Enforcement.
A metropolitan municipal corporation shall have power to adopt
by resolution such rules and regulations as shall be necessary
or proper to enable it to carry out authorized metropolitan
functions and may provide penalties for the violation thereof.
Actions to impose or enforce such penalties may be brought
in the superior court of the state of Washington in and for
the central county.
35.58.450 General obligation bonds -- Issuance, sale, form,
term, election, payment. Notwithstanding the limitations of
chapter 39.36 RCW and any other statutory limitations other-
wise applicable and limiting municipal debt, a metropolitan
municipal corporation shall have the power to authorize and
to issue general obligation bonds and to pledge the full faith
and credit of the corporation to the payment thereof, for any
authorized capital purpose of the metropolitan municipal cor-
poration: Provided, That a proposition authorizing the issuance
of any such bonds to be issued in excess of three-fourths of
one percent of the value of the taxable property therein, as
the term "value of the taxable property" is defined in RCW
39.36.015, shall have been submitted to the electors of the
metropolitan municipal corporation at a special election and
assented to by three-fifths of the persons voting on said
proposition at said election at which such election the total
number of persons voting on such bond proposition shall con-
stitute not less than 40 percent of the total number of votes
cast within the area of said metropolitan municipal corporation
at the last preceding state general election. Such general
obligation bonds may be authorized in any total amount in
one or more propositions and the amount of such authorization
may exceed the amount of bonds which could then lawfully be
issued. Such bonds may be issued in one or more series from
time to time out of such authorization but at no time shall
the total general indebtedness of the metropolitan municipal
corporation exceed five percent of the value of the taxable
- 67 -
-------
property therein, as the term "value of the taxable property"
Is defined in RCW 39.36.015. Both principal of and interest
on such general obligation bonds may be made payable from
annual tax levies to be made upon all the taxable property
within the metropolitan municipal corporation in excess of
the 40 mill tax limit or may be made payable from any other
taxes or any special assessments which the metropolitan
municipal corporation may be authorized to levy or from any
otherwise unpledged revenue which may be derived from the
ownership or operation of properties or facilities incident
to the performance of the authorized function for which such
bonds are issued or may be made payable from any combination
of the foregoing sources. The metropolitan council may include
in the principal amount of such bond issue an amount for
engineering, architectural, planning, financial, legal, urban
design and other services incident to acquisition or construc-
tion solely for authorized capital purposes and may include
an amount to establish a guaranty fund for revenue bonds is-
sued solely for capital purposes.
General obligation bonds shall be sold as provided in RCW
39.44.030 and shall mature in not to exceed 40 years from
the date of issue. The various annual maturities shall com-
mence not more than five years from the date of issue of the
bonds and shall as nearly as practicable be in such amounts as
will, together with the interest on all outstanding bonds of
such issue, be met by equal annual tax levies.
Such bonds shall be signed by the chairman and attested by the
secretary of the metropolitan council, one of which signatures
may be a facsimile signature and the seal of the metropolitan
corporation shall be impressed or imprinted thereon. Each of
the interest coupons shall be signed by the facsimile signa-
tures of said officials. General obligation bonds shall be
sold at public sale as provided by law for sale of general ob-
ligation bonds of cities of the first class and at a price not
less than par and accrued interest.
35.58.460 Revenue bonds -- Issuance, sale, form, term,
payment,, reserves, actions. A metropolitan municipal corpora-
tion may issue revenue bonds to provide funds to carry out
its authorized metropolitan sewage disposal, water supply,
garbage disposal or transportation purposes, without submit-
ting the matter to the voters of the metropolitan municipal
corporation. The metropolitan council shall create a special
fund or funds for the sole purpose of paying the principal of
-------
and interest on the bonds of each such issue, into which fund
or funds the metropolitan council may obligate the metropolitan
municipal corporation to pay such amounts of the gross revenue
of the particular utility constructed, acquired, improved,
added to, or repaired out of the proceeds of sale of such bonds,
as the metropolitan council shall determine and may obligate
the metropolitan municipal corporation to pay such amounts out
of otherwise unpledged revenue which may be derived from the
ownership, use or operation of properties or facilities owned,
used or operated incident to the performance of the authorized
function for which such bonds are issued or out of otherwise
unpledged fees, tolls, charges, tariffs, fares, rentals, special
taxes or other sources of payment lawfully authorized for such
purpose, as the metropolitan council shall determine. The
principal of, and interest on, such bonds shall be payable
only out of such special fund or funds, and the owners and
holders of such bonds shall have a lien and charge against
the gross revenue of such utility or any other revenue, fees,
tolls, charges, tariffs, fares, special taxes or other
authorized sources pledged to the payment of such bonds.
Such revenue bonds and the interest thereon issued against
such fund or funds shall be a valid claim of the holders
thereof only as against such fund or funds and the revenue
pledged therefor, and shall not constitute a general indebt-
edness of the metropolitan municipal corporation.
Each such revenue bond shall state upon its face that it is
payable from such special fund or funds, and all revenue
bonds issued under this chapter shall be negotiable securities
within the provisions of the law of this state. Such revenue
bonds may be registered either as to principal only or as to
principal and interest, or may be bearer bonds, shall be in
such denominations as the metropolitan council shall deem
proper; shall be payable at such time or times and at such
places as shall be determined by the metropolitan council;
shall bear interest at such rate or rates as shall be determined
by the metropolitan council, shall be signed by the chairman
and attested by the secretary of the metropolitan council,
one of which signatures may be a facsimile signature, and the
seal of the metropolitan municipal corporation shall be im-
pressed or imprinted thereon; each of the interest coupons
shall be signed by the facsimile signatures of said officials.
Such revenue bonds shall be sold in such manner at such price
and at such rate or rates of interest as the metropolitan coun-
cil shall deem to be for the best interests of the metropolitan
municipal corporation, either at public or private sale.
- 69 -
-------
The metropolitan council may at the time of the issuance of
such revenue bonds make such covenants with the purchasers and
holders of said bonds as it may deem necessary to secure and
guarantee the payment of the principal thereof and the interest
thereon, including but not being limited to covenants to set
aside adequate reserves to secure or guarantee the payment of
such principal and interest, to maintain rates sufficient to
pay such principal and interest and to maintain adequate cover-
age over debt service, to appoint a trustee or trustees for
the bondholders to safeguard the expenditure of the proceeds
of sale of such bonds and to fix the powers and duties of
such trustee or trustees and to make such other covenants
as the metropolitan council may deem necessary to accomplish
the most advantageous sale of such bonds. The metropolitan
council may also provide that revenue bonds payable out of
the same source may later be issued on a parity with revenue
bonds being issued and sold.
The metropolitan council may include in the principal amount
of any such revenue bond issue an amount to establish neces-
sary reserves, an amount for working capital and an amount
necessary for interest during the period of construction of
any such metropolitan facilities plus six months. The metro-
politan council may, if it deems it to the best interest of
the metropolitan municipal corporation, provide in any con-
tract for the construction or acquisition of any metropolitan
facilities or additions or improvements thereto or replace-
ments or extensions thereof that payment therefor shall be
made only in such revenue bonds at the par value thereof.
If the metropolitan municipal corporation shall fail to carry
out or perform any of its obligations or covenants made in the
authorization, issuance and sale of such bonds, the holder of
anh such bond may bring action against the metropolitan munici-
pal corporation and compel the performance of any or all of
such covenants.
35.58.470 Funding, refunding bonds. The metropolitan council
may, by resolution, without submitting the matter to the
voters of the metropolitan municipal corporation, provide
for the issuance of funding or refunding general obligation
bonds to refund any outstanding general obligation bonds or
any part thereof at maturity, or before maturity if they
are by their terms or by other agreement subject to prior
redemption, with the right in the metropolitan council to
- 70 -
-------
combine various series and issues of the outstanding bonds
by a single issue of funding or refunding bonds, and to issue
refunding bonds to pay any redemption premium payable on the
outstanding bonds being refunded. The funding or refunding
general obligation bonds shall, except as specifically pro-
vided in this section, be issued in accordance with the pro-
visions of this chapter with respect to general obligation
bonds.
The metropolitan council may, by resolution, without submit-
ting the matter to the voters of the metropolitan municipal
corporation, provide for the issuance of funding or refunding
revenue bonds to refund any outstanding revenue bonds or any
part thereof at maturity, or before maturity if they are by
their terms or by agreement subject to prior redemption, with
the right in the metropolitan council to combine various series
and issues of the outstanding bonds by a single issue of re-
funding bonds, and to issue refunding bonds to pay any redemp-
tion premium payable on the outstanding bonds being refunded.
The funding or refunding revenue bonds shall be payable only
out of a special fund created out of the gross revenue of the
particular utility, and shall be a valid claim only as against
such special fund and the amount of the revenue of the utility
pledged to the fund. The funding or refunding revenue bonds
shall, except as specifically provided in this section, be
issued in accordance with the provisions of this chapter with
respect to revenue bonds.
The metropolitan council may exchange the funding or refunding
bonds at par for the bonds which are being funded or refunded,
or it may sell them in such manner, at such price and at such
rate or rates of interest as it deems for the best interest
of the metropolitan municipal corporation.
35.58.480 Borrowing money from component city or county.
A metropolitan municipal corporation shall have the power when
authorized by a majority of all members of the metropolitan
council to borrow money from any component city or county and
such cities or counties are hereby authorized to make such loans
or advances on such terms as may be mutually agreed upon by the
legislative bodies of the metropolitan municipal corporation
and any such component city or county to provide funds to carry
out the purposes of the metropolitan municipal corporation.
35.58.490 Interest bearing warrants. If a metropolitan muni-
cipal corporation shall have been authorized to levy a general
- 71 -
-------
tax on all taxable property located within the metropolitan
municipal corporation in the manner provided in this chapter,
either at the time of the formation of the metropolitan
municipal corporation or subsequently, the metropolitan coun-
cil shall have the power to authorize the issuance of interest
bearing warrants on such terms and conditions as the metro-
politan council shall provide same to be repaid from the pro-
ceeds of such tax when collected.
35.58.500 Local improvement districts — Utility local
improvement districts. The metropolitan municipal corpora-
tion shall have the power to levy special assessments payable
over a period of not exceeding 20 years on all property with-
in the metropolitan area specially benefited by any improve-
ment, on the basis of special benefits conferred, to pay in
whole, or in part, the damages or or costs of any such improve-
ment, and for such purpose may establish local improvement
districts and enlarged local improvement districts, issue
local improvement warrants and bonds to be repaid by the col-
lection of local improvement assessments and generally to
exercise with respect to any improvements which it may be
authorized to construct or acquire the same powers as may
now or hereafter be conferred by law upon cities of the first
class. Such local improvement districts shall be created
and such special assessments levied and collected and local
improvement warrants and bonds issued and sold in the same
manner as shall now or hereafter be provided by law for cities
of the first class. The duties imposed upon the city trea-
surer under such acts shall be imposed upon the treasurer
of the county in which such local improvement district shall
be located.
A metropolitan municipal corporation may provide that special
benefit assessments levied in any local improvement district
may be paid into such revenue bond redemption fund or funds
as may be designated by the metropolitan council to secure the
payment of revenue bonds issued to provide funds to pay the
cost of improvements for which such assessments were levied.
If local improvement district assessments shall be levied for
payment into a revenue bond fund, the local improvement dis-
trict created therefor shall be designated a utility local
improvement district.
35.58.530 Annexation — Requirements, procedure. Territory
annexed to a component city after the establishment of a
metropolitan municipal corporation shall by such act be
- 72 -
-------
annexed to such corporation. Territory within a metropolitan
municipal corporation may be annexed to a city which is not
within such metropolitan municipal corporation in the manner
provided by law and in such event either (1) such city may be
annexed to such metropolitan municipal corporation by ordinance
of the legislative body of the city concurred in by resolution
of the metropolitan council, or (2) if such city shall not be
so annexed such territory shall remain within the metropolitan
municipal corporation unless such city shall by resolution of
its legislative body request the withdrawal of such territory
subject to any outstanding indebtedness of the metropolitan
corporation and the metropolitan council shall be resolution
consent to such withdrawal.
Any territory contiguous to a metropolitan municipal corpora-
tion and lying wholly within an incorporated city or town may
be annexed to such metropolitan municipal corporation by
ordinance of the legislative body of such city or town re-
questing such annexation concurred in by resolution of the
metropolitan council.
Any other territory adjacent to a metropolitan municipal cor-
poration may be annexed thereto by vote of the qualified elec-
tors residing in the territory to be annexed, in the manner
provided in this chapter. An election to annex such territory
may be called pursuant to a petition or resolution in the fol-
lowing manner:
(1) A petition calling for such an election shall be signed
by at least four percent of the qualified voters
residing within the territory to be annexed and
shall be filed with the auditor of the central county.
(2) A resolution calling for such an election may be
adopted by the metropolitan council.
Any resolution or petition calling for such an election shall
describe the boundaries of the territory to be annexed, and
state that the annexation of such territory to the metropolitan
municipal corporation will be conducive to the welfare and
benefit of the persons or property within the metropolitan
municipal corporation and within the territory proposed to
be annexed.
Upon receipt of such a petition, the auditor shall examine the
same and certify to the sufficiency of the signatures thereon.
- 73 -
-------
For the purpose of examining the signatures on such petition,
the auditor shall be permitted access to the voter registra-
tion books of each city within the territory proposed to be
annexed and of each county a portion of which shall be lo-
cated within the territory proposed to be annexed. No person
may withdraw his name from a petition after it has been filed
with the auditor. Within 30 days following the receipt of such
petition, the auditor shall transmit the same to the metropoli-
tan council, together with his certificate as to the sufficien-
cy thereof.
Source: Washington; Wash. Rev. Code Ann. Chap. 35
(Supp. 1972).
2.9 State or Agency "Take-Over" of Noncomplying
Communities' Facilities.
A problem may arise where one or more municipalities which
are participants in an areawide plan refuse to cooperate with
other participants as required by the areawide plan. One
solution to this problem would be for either the state-level
agency or the areawide agency to "take-over" operation of
facilities belonging to the recalcitrant municipality and
thus bring the offender into compliance with the areawide
plan. Suggested legislation authorizing such a "take-over"
is set out below.
A. PROVISION AUTHORIZING AGENCY TO "TAKE-OVER" OPERATION
OF NONCOMPLYING MUNICIPALITY'S FACILITIES.
Purpose: Allows agency to take command of a municipality's
treatment facilities in order to bring that municipality
into compliance with the areawide plan.
Provision authorizing "take-over" of facilities:
"(1) The [insert agency] in case of failure by any muni-
cipality or its governing or managing body or officers to
comply with any order of the agency for the construction, in-
stallation, maintenance, or operation of a disposal system
or part thereof, may be resolution assume the powers of the
legislative authority of the municipality and confer on the
[agency] the powers of the administrative officers of the
municipality relating to the construction, installation,
maintenance or operation of a disposal system, or par thereof,
or issuing bonds and levying taxes therefor, upon notice
- 74 -
-------
specifying the particulars of the alleged failure to comply
with the order and the powers proposed to be assumed for the
purpose of remedying such failure. The resolution shall in-
clude or have attached thereto a copy of the order, shall
set forth the findings of the [agency] as to failure of com-
pliance therewith after the hearing thereon, and shall set
forth the powers assumed and determine the action to be ;^ken.
Certified copies of the resolution and order shall be trans-
mitted by the secretary of the [agency] to the clerk or other
recording officer of the municipality concerned. The reso-
lution and order and cerrified copies thereof shall be priina
facie evidence that the order is reasonable and valid, thst
all requirements of law relating thereto and to the hearing
thereon have been complied with by the agency, that the muni-
cipality and its governing or managing body and officers have
failed to comply with the order as set forth in the resolution,
and that the powers so assumed are vested in the [agency] as
therein set forth. Thereupon the [agency] shall have charge
of the case, and all other proceedings for enforcement of the
order shall be suspended until the authority of the [agency]
in the case has been terminated. At this stage of the case
there is a right of judicial review, and the resolution and
attached order shall be deemed a final order for the purpose
of judicial review, but failure at this stage to seek judicial
review does not preclude judicial relief at a subsequent stage
where, and in a manner, otherwise appropriate,
(2) Upon the assumption of powers as provided in subdivision
1, all the powers of the municipality and its governing or
managing body and officers with respect to the subject matter
of the order shall thereby be forthwith transferred to and
vested in the [agency] and they shall thereafter exercise the
same in the name of the municipality or its governing or
managing body or officers, as the case may require, until
terminated. Such powers shall include, without limitation,
the power to levy taxes, to certify such taxes for collection,
to levy assessments or benefited property, to prescribe ser-
vice or use charges, to borrow money, to issue bonds, to employ
necessary assistance, to acquire necessary real or personel
property, to let contracts or otherwise provide for the doing
of work or the construction, installation, maintenance, or
operation of facilities, and to do and perform for the muni-
cipality or its governing or managing body or officers all
other acts and things required to effectuate, carry out, and
accomplish the purposes of the order and which might have been
done or performed by the municipality or its governing or
managing body or officers. The exercise of any and all such
-------
powers by the [agency] shall have like force and effect as
if the same had been exercised by the municipality or by its
governing or managing body or officers. All such acts or
things done or performed by the [agency] shall be prima
farie lawful and valid, and it shall be presumed that all re
quirements of law or charter relating thereto have been
compile 'J-.
Source ; Adapted from Minnesota; Minn. Stat. Ann.
TiT5TT8 (1964) .
B: ALTERNATIVE PROVISION AUTHORIZING STATE-LEVEL AGENCY
TO "TAKE-OVER" OPERATION OF A MUNICIPALITY'S FACILITIES.
Purpose : S ame .
Alternative provision authorizing "take-over" of facilities
"Upon the failure of a municipality to comply with an order
of the [name of agency] to correct deficiencies in the opera-
tion of sewerage systems or treatment works, the [agency] shall
take charge of and operate such systems or works so as to bring
the municipality into compliance.
All costs for maintenance, operation and other services
including legal fees incidental to taking possession of the
sewerage system or treatment works shall be charged to the
municipality against which the original order of the [agency]
was served . "
Source • Adapted from Maryland; Md. Ann. Code art. 33B ,
§8(1971),
C. PROVISION AUTHORIZING LOCAL AGENCY TO "TAKE-OVER"
OPERATION OF A MUNICIPALITY'S FACILITIES.
Purpose : Allows a local or areawide agency to "take-over"
operation of the treatment facilities of one of its .members
which is not complying with the areawide plan.
Provision authorizing "take-over" of facilities by a local
agency :
"If a municipality or other participant of an areawide
waste treatment management plan fails to comply with any por-
tion of an approved areawide plan adopted by the [agency] the
[agency] shall be fully authorized to assume the powers of the
-------
municipality relating to performance of all or any part of
the areawide plan including, but not limited to, the construc-
tion, installation, maintenance, or operation of a waste treat-
ment system, or any part thereof. Such powers shall include
all acts and things necessary to effectuate, carry out, and
accomplish the purposes of the areawide plan, provided that
such things might have been done or performed by the munici-
pality. All powers exercised by the [agency] on behalf of
the municipality shall have the same force and effect as if
such powers had been exercised by the municipality acting
on its own behalf.
If the officers or governing body of the municipality agree
to exercise their powers in compliance with the areawide plan,
the [agency] may reinstate all or any of such powers subject
to specified conditions, and the municipality may then exercise
such powers accordingly."
Source: Suggested by authors.
2.10 Denial of State Funds for Failure to Comply with
Areawide Plan.
Another possible sanction, short of outright "take-over" of
facilities , would be to force the noncomplying municipality
to comply by offering a choice between compliance and loss
of state funds used for financing all municipal projects
(not merely for sewage treatment). The following suggested
legislation authorizes such a denial of state funds as an
incentive for municipalities to comply with the areawide plan.
A. PROVISION FOR DENIAL OF STATE FUNDS.
Purpose: Encourages municipalities to comply with an
areawide plan by denying use of state funds for sewage
treatment projects until compliance is made.
Provision for denial of state funds:
"The [state-level agency] shall have the power and authori-
ty to :
a. Deny state assistance to any municipality which fails
to operate and maintain its sewage treatment works in ac-
cordance with qualifications for state assistance applicable
to such works.
- 77 -
-------
b. Make an annual inspection of operating conditions
and results, including the collection of necessary flow and
analytical data and sampling, at each sewage treatment plant
for the maintenance and operation of which state assistance
is granted pursuant to this section.
c. Promulgate such rules and regulations as may be necessary,
proper or desirable to carry out effectively the provisions
of this section, including, but not limited to, standards of
operating efficiency for sewage treatment works, based on the
best usage of the receiving waters, type of treatment pro-
vided, and available dilution."
Source: New York; N.Y. Environ. Conser. Law §17-1905
(4) (1973).
B. ALTERNATIVE PROVISION FOR DENIAL OF STATE FUNDS.
Purpose: Denies use of state funds for any municipal
project until the municipality complies with the
areawide plan.
Alternative provision for denial of state funds:
"If a municipality fails to comply with any provisions
of an areawide waste treatment management plan, all State
funds relating to the income tax, the amusements tax, the
license tax, and [insert appropriate taxes] thereafter to
be distributed to the municipality may be withheld from such
municipality and may be applied by the [comptroller or other
fiscal officer] directly for the purposes of bringing such
municipality into compliance. Such right to withhold and
apply directly shall exist only so long as reasonably neces-
sary to bring such municipality into compliance with the
areawide plan.
Source: Adopted with substantial changes from Maryland;
Md. Ann. Code art. 33B, §7(b)(1971).
-------
PART THREE
Suggested Legislation for Land Use Control and Control of
Non-Point Sources
3.0 LAND USE CONTROLS
Various types of land use controls may be effective ways
of controlling water pollution on an areawide basis. Section
VIII of the report, Problems and Approaches to Areawide
Water Quality Management, gave examples of such controls
and the problems associated with them. One problem is
the lack of the requisite legislation to authorize the
methods.
Suggested or model legislation to alleviate the shortcomings
in present land use control authority is set forth below.
A. ENABLING ACT WHICH INCLUDES ENVIRONMENTAL CONCERNS.
Purpose: To include in the enabling act the prevention
of water and other forms of pollution as a factor
in land use planning and zoning.
Enabling act:
Purposes of Planning and Zoning.
All land use planning and zoning shall be made with the
general purpose of guiding and accomplishing the coordinated,
adjusted, and harmonious development of the jurisdiction,
and its environs which will, in accordance with present
and future needs, best promote health, safety, morals,
order, convenience, prosperity, and general welfare, as
well as efficiency and economy in the process of development;
including among other things, adequate provisions for traffic,
the promotion of public safety, adequate provision for
light and air, conservation of natural resources, the preven-
tion of environmental pollution, the promotion of the health-
ful and convenient distribution of population, the promotion
of good civic design and arrangement, wise and efficient
expenditure of public funds, and the adequate provision
of public utilities and other public requirements.
Source: Adapted from Md. Ann. Code art. 66B, §3.06 (1970)
- 79 -
-------
B. LOCATION OF COMMERCIAL AND INDUSTRIAL DEVELOPMENTS
TO MINIMIZE POLLUTION.
Purpose: To regulate the location of potentially harm-
ful industrial developments.
Act to regulate the location of industrial and commer-
cial developments:
Section 1 Findings and Purpose
(a) The Legislature finds that the economic and social
well-being of the citizens of the State depend upon
the location of commercial and industrial develop-
ments with respect to the natural environment of the
State; that many developments because of their size
and nature are capable of causing irreparable damage
to the people and the environment in their surround-
ings ; that the location of such developments is too
important to be left only to the determination of
the owners of such developments; and that discretion
must be vested in state authority to regulate the
location of developments which may substantially
affect environment.
(b) The purpose of this act is to provide a flexible and
practical means by which the State, acting through
appropriate state agencies, may exercise the police
power of the State to control the location of those
developments substantially affecting local environment
in order to insure that such developments will be
located in a manner which will have a minimal adverse
impact on the natural environment of their surroundings
Section 2 Definitions
As used in this act:
(1) "Commission" means the [appropriate state agency] .
(2) "Development which may substantially affect
environment" means any commercial or industrial
development [which requires a license from the
commission, or] which occupies a land area in
excess of [twenty] acres, or which contemplates
drilling for or excavating natural resources,
excluding borrow pits for sand, fill or gravel,
regulated by the [State Highway Commission] and
- 80 -
-------
pits of less than [five] acres, or which occupies
on a single parcel a structure or structures in
excess of a ground area of [60,000 square feet].
(3) "Natural environment of a locality" includes the
character, quality and uses of land, air and waters
in the area likely to be affected by such develop-
ment, and the degree to which such land, air and
waters are free from nonnaturally occurring con-
tamination .
(4) "Person" means any person, firm, corporation or
other legal entity.
Section 3 Notification Required
Any person intending to construct or operate a development
which may substantially affect local environment, before
commencing construction or operation, shall notify the com-
mission in writing of his intent and of the nature and location
of such development. The commission shall within [fourteen]
days of receipt of such notification, either approve the pro-
posed location or schedule a hearing thereon in the manner
hereinafter provided. The notification requirement of this
section is in addition to other applicable requirements of
state law-
Section 4 Hearings; Ordersj Construction Suspended
(a) If the commission determines to hold a hearing on
a notification submitted to it pursuant to Section
3, it shall hold such hearing within [thirty] days
of such determination, and shall cause notice of the
date, time and place thereof to be given to the per-
son intending the development and in addition shall
give public notice thereof by causing such notice
to be published in some newspaper of general circu-
lation in the proposed locality, or if none, in the
state paper; the date of the first publication to
be at least [ten], and the last publication to be at
least [three] days before the date of the hearing.
(b) At such hearing the commission shall solicit and
receive testimony to determine whether such develop-
ment will in fact substantially affect the environ-
ment or pose a threat to the public's health,
safety or general welfare.
- 81
-------
(c) The commission shall approve a development proposal
whenever it finds that:
(1) The proposed development has the financial
capacity and technical ability to meet state
air and water pollution control standards, has
made adequate provision for solid waste disposal,
the control of offensive odors, and the securing
and maintenance of sufficient and healthful water
supplies,
(2) The proposed development has made adequate pro-
vision for loading, parking and traffic movement
from the development area onto public roads.
(3) The proposed development has made adequate pro-
vision for fitting itself harmoniously into the
existing natural environment and will not adverse-
ly affect existing uses, scenic character,
natural resources or property values in the
municipality or in adjoining municipalities.
(4) The proposed development will be built on soil
types which are suitable to the nature of the
undertaking.
(d) At hearings held under this section the burden shall
be upon the person proposing the development to
affirmatively demonstrate to the commission that
each of the criteria for approval listed in the pre-
ceding paragraphs has been metp and that the public's
health, safety and general welfare will be adequately
protected.
(e) The commission shall adopt,, and may amend, and repeal
rules for the conduct of hearings held under this
section in the same manner as provided for the adop-
tion, amendment and repeal of rules of practice
before itc A complete verbatim transcript shall be
made of all hearings held pursuant to this section.
r'> Within [forty-five] days after the commission adjourns
any hearing held under this section,, it shall make
findings of fact and issue an order granting or deny-
ing permission to the person proposing such develop-
ment to construct or operate the same as proposed, or
granting such permission upon such terms and conditions
- 82 -
-------
as the commission deems advisable to protect and
preserve the environment and the public's health,
safety and general welfare.
(g) Any person who has notified the commission, pursuant
to Section 3 of his intent to create a development
substantially affecting local environment shall,
upon receipt of notice that the commission has deter-
mined to hold a hearing under this section, immedi-
ately defer or suspend construction or operation with
respect to such development until the commission has
issued its order after such hearing.
Section 5 Failure to Notify Commission; Hearing;
Injunctions; Orders
(Omitted)
jBection 6 Enforcement
All orders issued by the commission under this act shall be
enforced by the Attorney General. If compliance with any
order of the commission is not had within the time period
therein specified, the commission shall immediately notify
the Attorney General of this fact. Within [thirty] days
thereafter the Attorney General shall bring an appropriate
civil action designed to secure compliance with such order.
Section 7 Judicial Review
Any person, with respect to whose development the commission
has issued an order after hearing pursuant to Section 4, may
within [thirty] days after notice of such order, appeal there-
from to the [court]. Notice of such appeal shall be given by
the appellant to the commission. The proceedings shall not
be de novo. Review shall be limited to the record of the
hearing before and the order of the commission. The court
shall decide whether the commission acted regularly and within
the scope of its authority, and whether the order is supported
by substantial evidence, and on the basis of such decision may
enter judgement affirming or nullifying such determination.
Section 8 Applicability
This act shall not apply to any development in existence or
in possession of applicable state or local licenses to operate
or under construction on [date], or to any development the
construction and operation of which has been specifically
- 83 -
-------
authorized by the Legislature prior to the effective date
hereof, or to public service corporation transmission lines.
Section 9 State Administrative Practj-ces Act
(Omitted)
Source: Council of State Governments, 1971 Suggested
State Legislation, Vol. XXX.
C. PROTECTION OF WATERS THROUGH PLANNING AND ZONING.
Purpose; To protect water resources by authorizing
general state plans and local zoning regulations for
shorelands.
Navigable waters protection law (§144.26)
(1) To aid in the fulfillment of the state's role as
trustee of its navigable waters and to promote public
health, safety, convenience and general welfare,
it is declared to be in the public interest to make
studies, establish policies, make plans and authorize
municipal shoreland zoning regulations for the effi-
cient use, conservation, development and protection
of this state's water resources. The regulations
shall relate to lands under, abutting or lying close
to navigable waters. The purposes of the regulations
shall be to further the maintenance of safe and
healthful conditions; prevent and control water pol-
lution; protect spawning grounds, fish and aquatic
life; control building sites, placement of structure
and land uses and reserve shore cover and natural
beauty -
(2) In this section, unless the context clearly,requires
otherwise:
(a) "Subcommittee" means the water subcommittee of
the natural resources council of state agencies.
(c) "Municipality" or "municipal" means a county,
village or city.
(d) "Navigable water" or "navigable waters" means
Lake Superior, Lake Michigan, all natural inland
lakes within Wisconsin and all streams, ponds,
sloughs, flowages and other waters within the
- 84 -
-------
territorial limits of this state, including the
Wisconsin portion of boundary waters, which are
navigable under the laws of this state.
(e) "Regulation" refers to ordinances enacted under
ss. 59.971 and 62.23(7) and means shoreland sub-
division and zoning regulations which include
control of uses of lands under, abutting or lying
close to navigable waters for the purposes speci-
fied in sub. (1), pursuant to any of the zoning
and subdivision control powers delegated by law
to cities, villages and counties.
(f) "Water resources," where the term is used in
reference to studies, plans, collection of publi-
cations on water and inquiries about water, means
all water whether in the air, on the earth's sur-
face or under the earth's surface. "Water resources"
as used in connection with the regulatory functions
under this section means navigable waters.
(g) "Shorelands" means the lands specified under par.
(e) and s. 59.971(1) .
(3) (a) The subcommittee shall serve in an ex officio
advisory capacity to the department and provide
a liaison function whereby the several state
agencies may better co-ordinate their activities
in managing and regulating water resources.
(b) The department shall make studies, establish
policies and make plans for the efficient use,
conservation, development and protection of the
state's water resources and:
1. On the basis of these studies and plans
make recommendations, through the subcommit-
tee, to existing state agencies relative to
their water resource activities.
2. Locate and maintain information relating to
the state's water resources. The department
shall collect pertinent data available from
state, regional and federal agencies, the
university of Wisconsin, local units of
government and other sources.
- 85 -
-------
3. Serve as a clearinghouse for information
relating to water resources including refer-
ring citizens and local units of government
to the appropriate sources for advice and
assistance in connection with particular
water use problems .
(5) (a) The department shall prepare a comprehensive plan
as a guide for the application of municipal ordi-
nances regulating navigable waters and their
shorelands as defined in this section for the
preventive control of pollution. The plan shall
be based on a use classification of navigable
waters and their shorelands throughout the state
or within counties and shall be governed by the
following general standards:
1. Domestic uses shall be generally preferred.
2 . Uses not inherently a source of pollution
within an area shall be preferred over uses
that are or may be a pollution source.
3. Areas in which the existing or potential
economic value of public, recreational or
similar uses exceeds the existing or poten-
tial economic value of any other use shall
be classified primarily on the basis of the
higher economic use value.
4. Use locations within an area tending to
minimize the possibility of pollution shall
be preferred over use locations tending to
increase that possibility.
5 . Use dispersions within an area shall be pre-
ferred over concentrations of uses or their
undue proximity to each other.
(b) The department shall apply to the plan the stand-
ards and criteria set forth in sub. (6).
(6) Within the purposes of sub. (1) the department shall
prepare and provide to municipalities general recom-
mended standards and criteria for navigable water
protection studies and planning and for navigable
water protection regulations and their administration
- 86 -
-------
Such standards and criteria shall give particular
attention to safe and healthful conditions for the
enjoyment of aquatic recreation; the demands of water
traffic, boating and water sports; the capability of
the water resource; requirements necessary to assure
proper operation of septic tank disposal fields near
navigable waters; building setbacks from the water;
preservation of shore growth and cover; conservancy
uses for low lying lands; shoreland layout for resi-
dential and commercial development; suggested regu-
latibns and suggestions for the effective administra-
tion and enforcement of such regulations.
(7) The department, the municipalities and all state
agencies shall mutually co-operate to accomplish the
objective of this section. To that end, the depart-
ment shall consult with the governing bodies of
municipalities to secure voluntary uniformity of
regulations, so far as practicable, and shall extend
all possible assistance therefor.
(8) This section and s. 59.971 shall be construed together
to accomplish the purposes and objective of this
section.
Zoning of shorelands on navigable waters (§59.971)
(1) To effect the purposes of s. 144.26 and to promote
the public health, safety and general welfare,
counties may, by ordinance enacted separately from
ordinances pursuant to s. 59.97, zone all lands
(referred to herein as shorelands) in their unincor-
porated areas within the following distances from
the normal high-water elevation of navigable waters
as defined in s. 144.26 (2)(d): 1,000 feet from a
lake, pond or flowage; 300 feet from a river or
stream or to the landward side of the flood plain,
whichever distance is greater. If the navigable
water is a glacial pothole lake, the distance shall
be measured from the high watermark thereof.
(2) (a) Except as otherwise specified, all provisions
of s. 59.97 apply to ordinances and their amend-
ments enacted under this section, but they shall
not require approval or be subject to disapproval
by any town or town board.
- 87 -
-------
(b) If an existing town ordinance relating to shore-
lands is more restrictive than an ordinance later
enacted under this section affecting the same
shorelands, it continues as a town ordinance in
all respects to the extent of the greater
restrictions, but not otherwise.
(c) Ordinances enacted under this section shall accord
and be consistent with any comprehensive zoning
plan or general zoning ordinance applicable to
the enacting counties, so far as practicable.
(3) All powers granted to a county under s. 236.45 may
be exercised by it with respect to shorelands, but
it must have or provide a planning agency as defined
in s. 236.02(1).
(4) (a) Section 66.30 applies to this section, except
that for the purposes of this section any agree-
ment under s. 66.30 shall be effected by ordinance,
If the municipalities as defined in s. 144.26
are served by a regional planning commission
under s. 66.945, the commission may, with its
consent, be empowered by the ordinance of agree-
ment to administer each ordinance enacted
hereunder throughout its enacting municipality,
whether or not the area otherwise served by the
commission includes all of that municipality.
(b) Variances and appeals regarding shorelands with-
in a county are for the board of adjustment for
that county under s. 59.99, and the procedures
of that section apply.
(5) An ordinance enacted under this section supersedes
all provisions of an ordinance enacted under s. 59.97
that relate to shorelands.
(6) If any county does not adopt an ordinance by [insert
date] , or if the department of natural resources,
after notice and hearing, determines that a county
has adopted an ordinance which fails to meet reason-
able minimum standards in accomplishing the shoreland
protection objectives of s. 144.26(1), the department
shall adopt such an ordinance.
Source: Wis. Stat. Ann. §§144.26, 59.971 (Supp. 1972).
- 88 -
-------
D. NATURAL RESOURCES PLANNING IN COASTAL ZONES,
Purpose: To authorize development of a comprehensive
plan for the conservation and development of natural
resources in coastal zones.
COASTAL ZONES
191.110 Policy. The Legislative Assembly finds and declares that
(1) The coastal zone in this state is an important and
valuable part of the natural resources of this state
and that because of its value there exists a need for
its protection through the development and mainte-
nance of a balance between conservation and develop-
mental interests with respect to such natural resources.
(2) There exists a conflict in the development and use
of the natural resources of the coastal zone among
industrial interests, commercial and residential
development interests, recreational interests, power
resource interests, transportation and other naviga-
tional interests, waste disposal interests and fish
and other marine resource interests.
(3) To further the policy of this state in the protec-
tion, preservation, development and, where practic-
able, the restoration of the natural resources of
the coastal zone, a commission should be established
to develop and prepare a comprehensive plan for the
conservation and development of the natural resources
of the coastal zone that will provide the necessary
balance between conflicting public and private
interests in the coastal zone. (Coastal zone defi-
nition omitted.)
191.140 Functions of commission and coordinating committees.
The commission and the four coordinating committees shall:
(1) Study the natural resources of the coastal zone and
recommend the highest and best use of such resources.
(2) Not later than [insert date], prepare and submit a
report, including the findings of its study, a pro-
posed comprehensive plan for the preservation and
development of the natural resources of the coastal
zone and any maps, charts and other information and
- 89 -
-------
materials that are considered by them to be necessary
in such report, to the Governor and to the Legisla-
tive Assembly of the State of Oregon.
(3) Not later than [insert date] , prepare and submit a
preliminary andf if possible, a final report of their
progress in the study and formulation of the compre-
hensive plan described by subsection (2) of this
section to the Governor and the Legislative Assembly
of the State of Oregon.
(4) Advise the Governor from time to time on the findings
being made by them and propose policies and interim
measures for implementation by the Governor and state
agencies that they consider to be necessary for the
proper preservation and development of the coastal
zone prior to completion of its comprehensive plan
for the coastal zone. [1971 c.608 §4]
191.150 Plan content.
(1) The plan described by subsection (2) of ORS 191.140
shall reflect a balancing of the conservation of the
natural resources of the coastal zone and the orderly
development of the natural resources of the coastal
zone. Such plan shall be prepared in a form designed
to be used as a standard against which proposed uses
of the natural resources of the coastal zone may be
evaluated. In the event of conflicting uses of the
natural resources of the coastal zone, the plan shall
establish a system of preferences between such con-
flicting uses that are consistent with the control
of pollution and the prevention of irreversible damage
to the ecological and environmental qualities of the
coastal zone.
(2) In preparing the plan described by subsection (2)
of ORS 191.140, the commission and its coordinating
committees shall consider:
(a) The quality, quantity and movement of estuarine
and other coastal waters, whether tidal or non-
tidal in character.
(b) The ecological balance of estuarine and marine
resources.
- 90 -
-------
(c) The economic interests in the coastal zone,
including but not limited to commercial and
recreational fishing interests.
(d) The projected population growth and employment
needs within the coastal zone.
(e) Scientific information regarding the hydrology,
geology, topography, ecology and other relevant
scientific data relating to the coastal zone as
provided by state agencies.
(f) Plans, surveys and inventions that have been or
are being made with respect to the coastal zone
by federal, state and local governmental agencies
(g) Comprehensive land use plans and local zoning
ordinances administered by local governmental
agencies having jurisdiction over lands within
the coastal zone. [1971 c.608 §5]
191.160 Duties of commission. (Omitted)
191.170 Assistance of state and local governments.
(1) All state and local governmental agencies shall
cooperate, assist and participate with the com-
mission and its coordinating committees in carry-
ing out the purposes of ORS 191.110 to 191.180.
(2) The Governor shall designate members of state
agencies that are affected by or interested in the
studies and planning conducted by the commission
and coordinating committees pursuant to ORS 191.140
to assist the commission and coordinating committees
in the performance of their duties set forth in
ORS 191.140. [1971 c.608 §7]
191.180 Review of plans by state natural resource agencies.
The state natural resources agencies shall review any pre-
liminary or final comprehensive plans referred to in ORS
191.140 and shall incorporate comments and recommendations
in a report to the Governor and to the Legislative Assemblies.
Source: Oregon Rev. Stat. §§191.110 et seq. (1971).
3.1 Permits and Licenses
This section will provide suggested legislation for
- 91 -
-------
i !.;,:•"> anri.ent.T.ng the permit and licensing controls described in
Section VIII of the Report.
A, PERMIT SYSTEM FOR REGULATING ANIMAL FEEDLOTS.
Purpose; To protect the environment from animal waste
pollution by requiring permits to operate feedlots.
Confined Animal Feeding Environmental Control Act
An Act regulating the construction and operation of livestock,
poultry, and other confined animal feeding facilities to pro-
tect the environment and for related purposes [amplify to meet
state requirements].
Be it enacted by the Legislative of the State of [ ]_.
Section 1 [Definitions . ]
As used in this Act:
(1) "Person" means any individual, partnership, corpor-
ation, other legal entity, or governmental agency of
this State or any subdivision thereof.
(2) "Director" means the official responsible for admin-
istration of state environmental quality standards.
(3) "Confined feeding" refers to any feeding and/or hold-
ing operation whether commercial, experimental, or
otherwise conducted within a confined feeding area
sheltered or unsheltered in which livestock, poultry,
or other animals are maintained.
(4) "Confined feeding area" means an area of land devoted
to a confined feeding and/or holding operation less
than the area of land necessary for the soil assimi-
lation of animal wastes generated by the animals on
such land without violating this Act and regulations
issued thereto and applicable state and federal laws.
The director shall promulgate regulations consistent
with this definition specifying areas to be included
in terms of quantitative animal densities relative to
land area.
(5) "Confined feeding facility" means:
- 92 -
-------
(i) Any confined feeding area upon which [ ]
animal units are or were confined for more than
a total of 30 days in a current calendar year;
(ii) Upon identification based upon substantial evi-
dence and written notification by the director,
any confined feeding operation or operations which
are owned or under the control directly or indi-
rectly, in whole or in part, by the same person
or persons, which may violate this Act, regula-
tions issued thereto, or applicable state and
federal laws.
Section 2 [Purpose.]
This Act is intended to (1) protect the environment from pol-
lution by animal wastes resulting from the operation of
confined feeding facilities; (2) ensure an adequate supply
of livestock and poultry products to the public.
Section 3 [Permit Required for Confined Facility Construction,
Modification, Operation; Voluntary Registration.]
(a) No person shall construct, substantially modify, or
operate any confined feeding facility after [specify
date] without a permit obtained from the director
pursuant to the provisions of this Act.
(b) Any person not otherwise required under the provisions
of this Act to obtain a permit, may voluntarily apply
for and be entitled to receive such a permit from the
director, upon compliance with the provisions of this
Act. Such person, upon receipt of a permit, shall be
subject to all provisions of this Act and to all rules
and regulations promulgated thereunder.
S_ectj.g_n 4 [Permit Applications; Conditions; Issuance.]
(a) Each application for a permit under Section 3 shall
be made to the director on a form prescribed by him
and shall contain all information required to appear
on the form pursuant to regulations promulgated by
the director. In addition to information supplied
in the application form, the director may require
that the operator furnish additional data as may be
necessary for approval or disapproval of the applica-
tion. Each application shall be accompanied by a
fee of $[ ].
- 93 -
-------
(b) A permit shall be issued it the director determines
upon the basis of the information in the application
and an inspection of the confined feeding area involved,
that the operation of a confined feeding facility on
such area will not, subject to the provisions of
Section 6 of this Act, violate (1) this Act and regu-
lations issued thereto and applicable state and federal
laws (concern for local requirements may be limited
to the extent that local authority is preempted by
state action); or (2) any rule, regulation, or guide-
line promulgated by the director pursuant to this Act.
(c) In making a determination pursuant to subsection (b)
of this section, the director shall take into account
the environmental hazards resulting from sporadic
waste discharges associated with confined feeding
operations, as well as average waste loads.
(d) The director may grant a special permit for the con-
struction, modification, or operation of a confined
feeding facility as a research, experimental, or
demonstration project, pursuant to regulations to
be promulgated by him if such facility, in his
judgment, would contribute, substantial benefits
toward environmental improvement.
(e) Prior to refusal of a permit or requiring conditions
in a permit, the director shall notify the applicant
of the proposed action and afford him an opportunity
to present his views thereon in accordance with pro-
cedures established in regulations promulgated by
the director. A permit shall be denied only on the
basis of substantial evidence of record. When a per-
mit is denied, the applicant shall be notified in
writing of the reasons therefor. A denial shall be
without prejudice to the applicant's right to file a
further application after revisions are made by the
applicant to meet objections specified as reasons
for the denial.
Section 5
Section 6
[Permits: Terms, Periods, and Conditions.]
(Omitted)
[Permits; Environmental Quality Requirements;
Revisions.]
All permits shall be conditioned upon continued compliance
- 94 -
-------
with this Act, regulations issued pursuant thereto, and appli-
cable state and federal laws and regulations. If such require-
ments are revised or modified, all permittees whose permitted
acts are affected by the revised or modified requirements
shall take such action as is necessary to comply with such
revised or modified requirements. Such action shall be com-
pleted as directed by a schedule for compliance contained in
such revised or modified requirements within a reasonable
time, not to exceed 5 years from the effective date of such
revision or modification.
Section 7
[Inspection and Entry. ]
To carry out the purposes of this Act or any rule, regulation,
or permit issued thereunder, the director or his authorized
representative, upon presentation of his legal credentials:
(1) Shall have a right of entry to, upon, or through any
permits on which any confined feeding facility is
operated, or in which any records are required to be
maintained by this Act; except that he shall not enter
a confined feeding facility until sanitary precau-
tions recommended by the [state veterinarian or
state director of public health] to prevent the
spread of contagious diseases have been complied
with or whenever a contagious or exotic animal
disease is determined to exist by the [state veter-
inarian or state director of public health] except
as determined by such appropriate official?
(2) May at reasonable times have access to and copy any
records required to be maintained by this Act;
(3) May inspect any monitoring equipment or method; and
(4) May have access to and sample (i) any surface or
ground waters leaving the operator's premises and
(ii) any waste sources resulting from the operation
of the confined feeding facility.
Section 8
Section 9
[Permits;
(Omitted)
Revocation, Modification, or
Suspension . ]
[Promulgation of Rules and Regulations. ]
(a) The director shall promulgate pursuant to [cite
- 95 -
-------
applicable state law prescribing procedures for
issuance of rules and regulations] such rules,
regulations, permits, and guidelines as he deter-
mines necessary to carry out the provisions and
purposes of this Act which shall contain at least
the following provisions:
(1) The criteria and other requirements for permit
application and issuance;
(2) Identification of the records and reports required
to be maintained by permittees;
(3) Design and construction standards and criteria
based on substantial information of record for
confined feeding facilities;
(4) Guidelines for the adequate handling, treatment,
disposal, management, and control of waste result-
ing from confined feeding facilities; and
(5) Guidelines for liquidation of terminated per-
mittee's operations (within a period not to
exceed one year following termination not-
withstanding provisions of Section 5).
(b) Rules, regulations, and guidelines under this Act
shall be promulgated only after notice, hearing, and
an opportunity to present oral and written statements
and shall be based upon evidence included in the
record of such hearing. All such rules, regulations,
and guidelines shall be reasonable and practicable.
(Sections 10 through 17 omitted.)
Section 18 [Citation of Act.]
This Act may be cited as the [(State)] Confined Animal Feeding
Environmental. Control Act.
Source: Council of State Governments, 1973 Suggested
State Legislation, Vol. XXXII.
B. SURFACE MINING PERMITS FOR CONTROL OF WATER POLLUTION.
Purpose: To require operators of surface mining operations
to obtain a permit and demonstrate that they will minimize
- 96 -
-------
the pollution caused by their work in order to control non-
point pollution from mines.
§ 13 9 6.3 a License
(a) After [insert date], it shall be unlawful for any
person to proceed to mine coal or to conduct an active
operation to mine other minerals, by the surface
mining method as an operator within this Common-
wealth without first obtaining a license as a surface
mining operator from the department. Applications
for licensure as surface mining operators shall be
made in writing to the department, upon forms pre-
pared and furnished by the department, arid shall
contain such information as to the applicant, or when
the application is made by a corporation, partnership
or association as to its officers, directors and
principal owners, as the department shall require.
(Provisions for license fees omitted.)
Penalty.--Any person who proceeds to mine minerals by the sur-
face mining method as an operator without having applied for
and received a license as herein provided or in violation of
the terms thereof shall be guilty of a misdemeanor, and, upon
conviction, shall be sentenced to pay a fine of not less than
five thousand dollars ($5,000) or in an amount not less than
the total profits derived by him as a result of his unlawful
activities, as determined by the court, together with the est-
imated cost to the Commonwealth of any reclamation work which
may reasonably be required in order to restore the land to its
condition prior to the commencement of said unlawful activities,
or undergo imprisonment not exceeding one year, or both. The
fine shall be payable to the Surface Mining Conservation and
Reclamation Fund.
(b) The department shall not issue any new surface mining
operator's license or renew any existing surface min-
ing operator's license to any person or operator if
it finds, after investigation, that the applicant for
licensure or renewal has failed and continues to fail
to comply with any of the provisions of this act, or
of any of the acts repealed or amended hereby. Where
the applicant is a corporation, partnership or associ-
ation, the department shall not issue such license or
renewal if, after investigation, it finds that any
- 97 -
-------
officer or director or principal owner of such corpor-
ation, partnership or association has failed and
continues to fail to comply with any of the provisions
of this act, or of any of the acts repealed or amended
hereby, or if any such officer or director or principal
owner is or has been an officer or director or princi-
pal owner of any other corporation, partnership or
association, which has failed and continues to fail to
comply with any of the provisions of this act, or of
any of the acts repealed or amended hereby.
(Balance of section omitted.)
§ 1396.4 Permits; maps,_plans or photographs; reclamation plan;
judicial review; bond or deposit
(a) Before any person licensed as a surface mining opera-
tor shall hereafter proceed to mine minerals by the
surface mining method, he shall apply to the depart-
ment, on a form prepared and furnished by the
department, for a permit for each separate operation,
which permit when issued shall be valid until such
operation is completed or abondoned, unless sooner
suspended by the secretary.
(b) Upon receipt of an application, the department shall
review the same and shall make such further inquiries,
inspections or examinations as may be necessary or
desirable for a proper evaluation thereof. Should
the secretary object to any part of the proposal, he
shall promptly notify the operator by registered mail
of his objections, setting forth his reasons therefor,
and shall afford the operator a reasonable opportunity
to make such amendments or take such other actions as
may be required to remove the objections. No appli-
cation shall be approved with respect to any operator
who has failed, and continues to fail to comply with
the provisions of this act or of any act repealed or
amended hereby, as applicable, or with the terms or
conditions of any permit issued under "The Clean
Streams Law" of June 22, 1937 (P.L. 1987), as amended,
or where any claim is outstanding against any operator,
or in the case of a corporate operator against any
officer or director, under this act or any act repealed
or amended hereby. Should any operator be aggrieved
by any action of the secretary under this subsection,
or by the failure of the secretary to act upon his
application for a permit, he may proceed to lodge an
-------
appeal with the Environmental Hearing Board in the
manner provided by law, and from the adjudication of
said Board he may further appeal as provided by the
Administrative Agency Law.
(c) Prior to commencing surface mining, the operator shall
file with the department a bond for the land affected
by each operation on a form to be prescribed and fur-
nished by the department, payable to the Commonwealth
and conditioned that the operator shall faithfully
perform all of the requirements of this act and of
the act of June 22, 1937 (P.L. 1987) , known as "The
Clean Streams Law." The amount of the bond required
shall be in an amount determined by the secretary
based upon the total estimated cost to the Common-
wealth of completing the approved reclamation plan.
Said estimate shall be based upon the operator's
statement of his estimated cost of fulfilling the plan
during the course of his operation, inspection of the
application and other documents submitted, inspection
of the land area, and such other criteria as may be
relevant, including the proposed land use and the
additional cost to the Commonwealth which may be
entailed by being required to bring personnel and
equipment to the site after abandonment by the oper-
ator, in excess of the cost to the operator of per-
forming the necessary work during the course of his
surface mining operations.
Source: Pennsylvania, Pa. Stat. Ann. tit. 52, §§1396.3a
and 1396.4 (Supp. 1972).
C. PROVISION FOR LICENSING OF WASTEWATER TREATMENT
PERSONNEL.
Purpose: To provide a licensing process for qualified
personnel who are capable of operating the facilities
efficiently and effectively so as to achieve the highest
level of treatment.
An Act to protect the public health and to conserve and protect
the water resources of the State; to provide for the classify-
ing of all public and private (including industrial) potable
water supply systems and public and private (including indus-
trial) wastewater facilities to require the examination of
operators and certification of their competency to supervise
the operation of such facilities; to prescribe the powers and
- 99 -
-------
duties of the state director in these matters; to provide for
the promulgation of rules and regulations; to create a board
of certification; to provide for reciprocal arrangements; and
to prescribe penalties for violation of the Act.
Be it enacted by the Legislature of the State of [ ]_•
Section 1 [Short Title.]
This Act shall be known and may be cited as the [State] Law
for Certification of Operators of Water Treatment Plants.
Water Distribution Systems, and Wastewater Facilities.
Section 2 [Definitions.]
(a) "Person" shall mean any individual, partnership, firm
association, joint venture, public or private corpor-
ation, trust, estate, commission, board, public or
private institution, utility, cooperative, municipality,
or any other political subdivision of this State, any
interstate body, or any other legal entity;
(b) "Operator" shall mean the person in responsible charge
of the operation of a potable water treatment plant,
water distribution system, or wastewater facility;
(c) "Water supply system" shall mean the system of pipes,
structures, and facilities through which water is
obtained, treated and sold, distributed, or otherwise
offered to the public for household use or any use
by humans;
(d;
"Potable water treatment plant" shall mean that portion
of the water supply system which in some way alters
the physical, chemical, or bacteriological quality of
the water being treated;
(e) "Wastewater facility(ies)" shall mean the structures,
equipment, and processes required to collect, carry
away, and treat domestic and industrial waste and
dispose of the effluent;
(f) "Water distribution system" shall mean that portion
of the water supply system in which water is stored
and conveyed from the potable water treatment plant
or other supply point to the premises of a consumer;
- 100 -
-------
(g) "Nationally recognized association of certification
authorities" shall mean that organization which serves
as an information center for certification activities;
recommends minimum standards and guidelines for class-
ification of potable water treatment plants, water
distribution systems, and wastewater facilities, and
certification of operators; facilitates reciprocity
between state programs; and assists authorities in
establishing new certification programs and updating
existing ones;
(h) "Director" shall mean the head of either the state
health department or state water pollution control
authority which is assigned responsibility for admin-
istration of this Act.
Section 3 [Classification.]
The director shall classify all potable water treatment plants
and water distribution systems actually used or intended for
use by the public, and wastewater facilities which discharge
into publicly owned wastewater systems, receiving streams, or
land used by others. The classification shall take due regard
to size and type, character of water or wastewater to be treated,
and other physical conditions affecting such treatment plants
and distribution systems and according to the skill, knowledge,
and experience required of an operator.
Section 4 [Certification.]
The director shall issue certification entitling qualified
persons to supervise the operation to potable water and
wastewater facilities and water distribution systems after
considering the recommendations of the State Board of Certi-
fication .
Section 5 [State Board of Certification.]
A State Board of Certification shall be appointed by the
Governor to advise and assist the director in the adminis-
tration of the certification program.
Section 6 [National Association of Certification
Authorities.]
The director is authorized when taking action pursuant to
Sections 3, 4 and 8 of this Act to consider generally
- 101 -
-------
applicable criteria and guidelines developed by a nationally
recognized association of certification authorities.
Section 7 [Certification Requirement.]
One year following the effective date of this Act, all potable
water treatment plants, water distribution systems, and waste-
water facilities, whether publicly or privately owned, used,
or intended for use by the public or private persons, must at
all times be under the supervision of an operator whose compe-
tency is certified to by the director in a classification
corresponing to the classification of the plant or distrubu-
tion system to be supervised.
(Balance of sections omitted.)
S_ource : Council of State Governments, 1973 Suggested
Legislation, Vol. XXXII.
3.2 Non-Point Source Control
A pollution problem not often covered by legislation or regu-
lation is sedimentation and siltation caused by agricultural,
contruction and other activities that can be categorized as
non-point sources of pollution. Suggested legislation to
aPPly soil conservation techniques to combatting pollution from
these non-point sources is set forth below.
A. PROVISION FOR SOIL EROSION AND SEDIMENT CONTROL.
Purpose: To control water pollution by establishing a
soil erosion and sediment control program, and to mini-
mize pollution by prohibiting certain land-disturbing
activities unless methods are employed which apply
approved soil conservation techniques.
Prevention and Control of Sedimentation:
An Act to amend the [soil and water conservation districts
law] to provide for an acceleration and extension of the
program for control of soil erosion and sediment damage
resulting from land-disturbing activities within the State;
to provide for adoption of a comprehensive statewide soil
erosion and sediment control program and guidelines and for
adoption by [soil and water conservation districts] of soil
erosion and sediment control programs consistent with such
statewide program and guidelines; to require the filing and
approval of plans for the control of soil erosion and sedi-
ment damage in connection with land-disturbing activities;
- 102 -
-------
to provide for inspections and reports; to declare certain
acts to be unlawful; to provide for administration and enforce-
ment; to provide for financial and other assistance to
districts and the [state soil and water conservation commission]
for the purposes of this Act, and making an appropriation for
those purposes; and for other purposes.
Be It Enacted by the Legislature of the State of [ ]_
that the [soil and water conservation districts law]
shall be amended by adding at the end thereof the follow-
ing sections;
Section 1 [Findings and Declaration of Policy.]
The Legislature finds that erosion continues to be a serious
problem throughout the State, and that rapid shifts in land
use from agricultural and rural to nonagricultural and urban-
izing uses, changes in farm and ranch enterprises, operations,
and ownership, construction of housing, industrial and commer-
cial developments, streets, highways, recreation areas, schools
and universities, public utilities and facilities, and other
land-disturbing activities have accelerated the process of soil
erosion and sediment deposition resulting in pollution of the
waters of the State and damage to domestic, agricultural,
industrial, recreational, fish and wildlife, and other resource
uses. It is, therefore, declared to be the policy of this
Act to strengthen and extend the present erosion and sediment
control activities and programs of this State for both rural
and urban lands, and to establish and implement, through the
[state soil and water conservation commission], hereinafter
referred to as the "Commission," and the [soil and water
conservation districts], hereinafter referred to as "districts,"
in cooperation with counties, municipalities, and other local
governments and subdivisions of this State, and other public
and private entities, a statewide comprehensive and coordinated
erosion and sediment control program to conserve and protect
land, water, air, and other resources of the State.
Section 2 [Definitions.]
(a) "Land-disturbing activity" means any land change which
may result in soil erosion from water or wind and the
movement of sediments into state waters or onto lands
in the State, including, but not limited to, tilling,
clearing, grading, excavating, transporting, and fil-
ling of land, other than federal lands, except that
the term shall not include such minor land-disturbing
- 103 -
-------
activities as home gardens and individual home land-
scaping, repairs, and maintenance work.
(b) "Person" means any individual, partnership, firm,
association, joint venture, public or private cor-
poration, trust, estate, commission, board, public
or private institution, utility, cooperative,
municipality, or other political subdivision of this
State, any interstate body, or any other legal entity.
(c) "State waters" means any and all waters, public or
private, on the surface of the ground, which are
contained within, flow through, or border upon the
State of [ ] or any portion thereof.
(d) "Erosion and sediment control plan" or "plan" means
a plan for the control of soil erosion and sediment
resulting from a land-disturbing activity.
(e) "Conservation standards" or "standards" means stand-
ards adopted by the Commission or the districts
pursuant to Sections 3 and 4, respectively, of this
Act.
Section 3 [J3tate Erosion and Sediment Control
Program.]
(a) The Commission shall, in cooperation with the [state
water quality control agency] and other appropriate
state and federal agencies, develop and coordinate
a comprehensive state erosion and sediment control
program. To assist in the development of such a
program, the Commission shall name an advisory board
of not less than 7 nor more than 11 members, repre-
senting such interests as housing, financing, industry,
agriculture, recreation, and local governments, and
their planning, transportation, health, public works,
and zoning commissions or agencies.
(b) To implement this program, the Commission shall devel-
op and adopt by [(date)] guidelines for erosion and
sediment control, which guidelines may be revised
from time to time as may be necessary. Before adopt-
ing or revising guidelines the Commission shall, after
giving due notice, conduct public hearings on the
proposed guidelines or proposed change in existing
guidelines. The guidelines for carrying out the
program shall:
- 104 -
-------
(1) Be based upon relevant physical and developmental
information concerning the watersheds and drain-
age basins of the State, including, but not
limited to, data relating to land use, soils,
hydrology, geology, size of land area being dis-
turbed, proximate water bodies and their character-
istics, transportation, and public facilities
and services;
(2) Include such survey of lands and waters as may
be deemed appropriate by the Commission or
required by any applicable law to identify areas,
including multijurisdictional and watershed
areas, with critical erosion and sediment prob-
lems ; and
(3) Contain conservation standards for various types
of soils and land uses, which standards shall
include criteria, techniques, and methods for the
control of erosion and sediment resulting from
land-disturbing activities.
(c) The program and guidelines shall be made available for
public inspection at the office of the Commission.
Section 4 [District Erosion and Sediment Control
Program.]
(a) Each district in the State shall, within [ ]
year(s) after the adoption of the state guidelines,
develop and adopt a soil erosion and sediment control
program consistent with the state program and guide-
lines for erosion and sediment control.
(Balance of section omitted.)
Section 5 [Prohibited Land-Disturbing Activities.]
(a) Except as provided in subsection (e) of this section,
no person may engage in any land-disturbing activity
until he has submitted to the district a plan for
erosion and sediment control for such land-disturbing
activity and such plan has been reviewed and approved
by the district, except that (1) when proposed land-
disturbing activities are to be performed on state
lands or by or on behalf of a state agency, plans for
erosion and sediment control shall be submitted to
the Commission instead of the district for review
- 105 -
-------
and approval, and (2) where land-disturbing activi-
ties involve lands in more than one district, plans
for erosion and sediment control may, as an alternative
to submission to each district concerned, be submit-
ted to the Commission for review and approval.
(Subsections (b) , (c) and (d) omitted.)
(e) Any person owning, occupying, or operating private
agricultural and forest lands who has a farm or
ranch conservation plan approved by the district
and is implementing and maintaining such plan with
respect to normal agricultural and forestry activities,
or any person whose normal agricultural and forestry
practices are in conformance with the conservation
standards established pursuant to this Act, shall not
be deemed to be engaged in prohibited land-disturbing
activity. If there is not available to any such owner,
operator, or occupier at least 50 percent cost-sharing
assistance or adequate technical assistance for
the installation of erosion and sediment control
measures required in an approved farm or ranch plan,
or for measures to conform agricultural and forestry
practices to conservation standards established pur-
suant to this Act, any such owner, occupier, or operator
who shall fail to install erosion and sediment con-
trol measures required in an approved farm or ranch
conservation plan, or to conform his agricultural
and forestry practices to such conservation standards,
shall not be deemed to be engaged in prohibited
land-disturbing activity subject to penalties under
the Act.
Section 6 [Approved Plan Required for Issuance of
Grading, Building, or Other Permits.]
No agency authorized under any other law to issue grading,
building, or other permits for activities involving land-
disturbing activities may issue any such permits unless the
applicant therefor submits with his application an erosion and
sediment control plan approved by the district, or by the Com-
mission where appropriate, and his certification that such
plan will be followed. These requirements are in addition to
all other provisions of law relating to the issuance of such
permits and are not intended to otherwise affect the require-
ments for such permits.
- 106 -
-------
Section 7 [Monitoring,_Reportsr and Inspections. ]
(a) Land-disturbing activities where permit is issued.
With respect to approved plans for erosion and sedi-
ment control in connection with land-disturbing
activities which involve the issuance of a grading,
building, or other permit, the permit-issuing aalJior-
ity shall provide for periodic inspections of the
land-disturbing activity to insure compliance with
the approved plan, and to determine whether the
measures required in the plan are effective in con-
trolling erosion and sediment resulting from the
land-desturbing activities. Notice of such right of
inspection shall be included in the permit. If the
permit-issuing authority determines that the permittee
has failed to comply with the plan, the authority
shall immediately serve upon the permittee by regis-
tered mail to the address specified by the permittee
in his permit application a notice to comply. Such
notice shall set forth the measures needed to come
into compliance with such plan and shall specify the
time within which such measures shall be completed„
If the permittee fails to comply within the time
specified, he shall be deemed to be in violation of
this Act and upon conviction shall be subject to -the
penalties provided by the Act.
(b) Other land-disturbing activities except agricultural
and fores try operations. With respect to approved
plans for erosion and sediment control in connection
with all other land-disturbing activities except
agricultural and farming operations, the district,
or the Commission in connection with plans approved
by it, may require of the person responsible for
carrying out the plan such monitoring and reports,
and may make such on-site inspections after notice
to the resident owner, occupier, or operator, as are
deemed necessary to determine whether the soil erosion
and sediment control measures required by the approved
plan are being properly performed, and whether such
measures are effective in controlling soil erosion
and sediment resulting from the land-disturbing activ-
ity. Such resident owner, occupier, or operator shall
be given an opportunity to accompany the inspectors.
If it is determined that there is failure to comply
with the approved plan, the district, or the Commission
where appropriate, shall serve upon the person who
is responsible for carrying out the approved plan a
- 107 -
-------
notice to comply, setting forth the measures needed
to be taken and specifying the time in which such mea-
sures shall be completed. Such notice shall be by
registered mail to the person responsible for carry-
ing out the plan at the address specified, by him in
his certification at the time of obtaining his approved
plan. Upon failure of such person to comply within
the specified period, he will be deemed to be in
violation of the Act and subject to the penalties
provided by the Act.
(c) Agr icul_tura1__ang _fpr ejs tr y__op_eratio_n_s . With respect
to agricultural and forestry operations, the district
shall have authority to make on-site inspections to
determine if the approved farm or ranch conservation
plan is being followed, or, where there is no such
plan, to determine if the agricultural and forestry
practices are being carried out in conformance with
conservation standards established pursuant to this
Act. On-site inspections may be made after notice
to the resident owner, operator, or occupier of the
land involved,, and such person shall be given an
opportunity to accompany the inspector. If such
inspections reveal that an owner,, operator, or
occupier of agricultural or forestry lands is not
complying with the approved farm or ranch conserva-
tion plan or :.s not carrying out his agricultural
and forestry practices in conformance with conser-
vation standards established pursuant to this Act,
such ownerr operator, or occupier shall be notified
by registered mail addressed to him at his usual
abode or customary place of business of the measures
needed for compliance., Such notice shall require
that such resident owner, occupier, or operator
shall commence such measures within 6 months from
the date of the notice and shall complete the same
within 12 months of such date. Upon failure to
comply with such notice, the owr.er, occupier, or
operator will be deemed in violation of this Act
and subject to the penalties provided, by the Act ,
Source; Council of State Government~, 1973 Suggested
State Legislation,- Vol. XXXII.
B. PROVISION FOR CONTROL OF NGN-POINT CONSTRUCTION
RUNOFF.
Purpose; To control runoff and erosion from construction
108
-------
sites by providing in the building code that builders of
projects utilize methods and materials which minimize
such pollution.
Building Code Provision:
"All buildings, roads, excavations or other structures or
construction projects covered by this building code shall
be constructed of materials which shall minimize the amount
and harmful characteristics of runoff and erosion caused by
storm water or other causes. Construction methods used on
all projects subject to this building code shall also result
in the least amount of runoff and erosion practicable in
relation to economic cost and available technology. The
[insert agency responsible for promulgation and/or enforce-
ment of building code regulations] shall promulgate regula-
tions and guidelines to accomplish the purposes of this
section. Such regulations and guidelines shall be subject
to approval by [insert agency responsible for water quality
control in the state].
Source: Suggested by authors.
3.3 Pricing Mechanisms
While not required in order to comply with provisions of the
Act, the use of fees or charges may be used to regulate pol-
lution and thus protect the state's waters. The Council of
State Governments has suggested legislation based on a 1970
Vermont Act to accomplish this purpose. Excerpts from the
comments of the Council and the suggested legislation are
as follows:
"Vermont has recently enacted water purity legislation pat-
terned after the water management concept practiced in
Germany's Ruhr Valley. The legislation requires any person,
including municipalities and state agencies, to secure a
permit to discharge wastes into public waters. Those pol-
luting state waters must obtain a nonrenewable temporary
permit and pay a fee based on the type and amount of the dis-
charge. In this manner, the polluter pays a direct user
charge for the privilege of despoiling public waters. The
Vermont statute explicitly recognizes that the principal pur-
pose of imposing pollution charges is to provide the economic
incentive for permit holders to reduce the volume and de-
grading quality of their discharges. Permit charges are
- 109 -
-------
required to be used solely for purposes of water quality
management and pollution control."
"The committee recognizes the Vermont approach as a signifi-
cant tool to abate water pollution, and believes several
sections of the act, particularly those dealing with permits _
and fees, deserve careful consideration by States. To facili-
tate full comprehension of such sections, we have also pub-
lished other essential portions of the Vermont statute."
A. PROVISION FOR USE OF EFFLUENT CHARGES.
Purpose: Requires dischargers of wastes to pay a fee
based on the type and amount of discharge. This may be
called an effluent charge or a full cost recovery user
charge.
Charging as a regulatory mechanism:
(Title, enacting clause, etc.)
Section 1 Classification of Waters
Designated, Reclassification
The [agency] shall determine the degree of water quality
and classification for waters within the State to be obtain-
ed and maintained in the public interest. The [agency] shall
make tests of any water as it deems necessary for determin-
ing its classification.
Section 2 Prohibitions
No person, without written authorization of the [agency],
shall discharge into waters within the State any waste which
by itself or in combination with the wastes of other sources
reduces the quality of the receiving waters below the class-
ification established for them. [This section shall not
prohibit the proper application of fertilizer to fields and
crops.]
Section 3 Discharge Reports Required
Any person discharging treated or untreated waste into waters
within the State on a regular, intermittent or continuous
basis prior to the effective date of this section and who
intends to continue such discharges on and after [date] , shall
file a written report of such discharges with the [agency] by
- 110 -
-------
[date]. This report shall specify the location, nature, volume
and frequency of such discharges. The [agency] may require the
person to furnish any additional information it deems necessary
to evaluate the effect of such discharges upon the receiving
waters.
Section 4 Discharge Permits
(a) Any person intending to discharge waste into the
waters of the State on and after [date] shall make
application to the [state agency] for a discharge
permit. Application shall be made on a form pre-
scribed by the [agency] and shall contain such
information as the [agency] requires. An applicant
shall pay to the [agency] at the time of submitting
his application an amount as the [agency] by rule
determines reasonable to defray the expense of
reviewing and evaluating an application.
(b) The [agency] shall consider each application and
shall grant or deny the requested permit within
[sixty] days from the date of receipt of the appli-
cation. The [agency] may require the applicant to
submit any additional information which it considers
necessary and may refuse to grant a permit until
such time as the information is furnished and
evaluated.
(c) If the [agency] finds that the proposed discharge
will reduce the quality of the receiving waters
below the classification established for them, it
shall deny the application and refuse to issue a
permit. If the [agency] finds that the proposed
discharge will not reduce the quality of the
receiving waters below the classification estab-
lished for them, it shall issue a discharge permit.
(d) A discharge permit shall:
(1) Specify the manner, nature, volume and frequency
of the discharge permitted;
(2) Require proper operation and maintenance of any
pollution abatement facility by qualified per-
sonnel in accordance with standards established
by the [agency];
- Ill -
-------
(3) Contain such additional conditions, requirements
and restrictions as the department deems neces-
sary to preserve and protect the quality of
receiving waters; and
(4) Be valid for the period of time specified therein.
(e) A discharge permit may be renewed upon application to
the [agency]. No renewal permit shall be issued if
the [agency] finds that the proposed discharge will
reduce the quality of the receiving waters below the
classification established for them.
Section 5 Temporary Pollution PermjLts_
(a) A person who does not qualify for, or has been denied
a waste discharge permit under Section 4 of this act,
may apply to the [agency] for a temporary pollution
permit. Application shall be made on a form prescribed
by the [agency] and shall contain such information as
the [agency] may require. Such person shall pay to
the [agency] at the time of submitting the application
an amount as the [agency] by rule determines reasonable
to defray the expense of reviewing and evaluating each
application. The [agency] may require such person to
submit any additional information it considers neces-
sary for proper evaluation.
(b) Using reasonable means, the [agency] shall give notice
to people residing in the drainage area of the re-
ceiving waters for the proposed discharge of the time
in which they may present written objections to the
proposed discharge.
(c) After consideration of the application, any addition-
al information furnished and all written objections
submitted, the [agency] shall grant or deny a tempor-
ary pollution permit. No temporary permit shall be
granted by the [agency] unless it affirmatively finds:
(1) The proposed discharge does not qualify for a
discharge permit;
(2) The applicant is constructing, installing or
placing into operation, or has submitted plans
and reasonable schedules for the construction,
installation or operation of an approved pollu-
tion abatement facility or alternative waste
- 112 -
-------
disposal system, or that the applicant has a
waste for which no feasible and acceptable
method of treatment or disposal is known or
recognized but is making a bonafide effort
through research and other means to discover
and implement such a method;
(3) The applicant needs permission to pollute the
waters within the State for a period of time
after [date] necessary to complete research,
planning, construction, installation or the
operation of an approved and acceptable pol-
lution abatement facility or alternate waste
disposal system;
(4) There is no present, reasonable, alternative
means of disposing of the waste other than by
discharging it into the waters of the State;
(5) The denial of a temporary pollution permit would
work an extreme hardship upon the applicant;
(6) The granting of a temporary pollution permit will
result in some public benefit; and
(7) The discharge will not be unreasonably destruc-
tive to the Quality of the receiving waters.
(d) A temporary pollution permit issued shall:
(1) Specify the manner, nature, volume and frequency
of the discharge permitted;
(2) Require the proper operation and maintenance of
any interim or temporary pollution abatement
facility or system required by the [agency] as
a condition of the permit;
(3) Require r.he permit holder to maintain such moni-
toring equipment and make and file such records
and reports as the [agency] deems necessary to
insure compliance with the terms of the permit
and evaluate the effect of the discharge upon
the receiving waters;
(4) Be valid only for the period of time necessary
for the permit holder to place into operation
113 -
-------
the facility, system or method contemplated in
his application as determined by the [agency];
(5) Recruire as a condition of the permit the payment
of periodic pollution charges in accordance with
pollution charge rates established by the board
pursuant to Section 6; and
(6) Shall contain other requirements, and restrictions
which the [agency] deems necessary and desirable
to protect the quality of the receiving waters
and promote the public interest.
Section 6 Pollution Charges
By [date], the [agency] shall fix and establish reasonable
pollution charge rates for computing the amounts to be paid
by temporary pollution permit holders pursuant to Section
5(d). The [agency] may revise such charge rates from time
to time thereafter.
[ (1) Purpose: It is expressly recognized that the au-
thorized discharge of certain wastes which will reduce
the quality of receiving waters below the established
classification represents an expropriation of a valuable
public natural resource for private or limited use and
that such discharges are permitted under this act for
economic reasons in the public interest of providing
time during which the degrading effects of such discharges
can be abated. The imposition of pollution charges
shall have the principal purpose of providing the econ-
omic incentive for temporary pollution permit holders
to reduce the volume and degrading quality of their
discharges during the limited period when such dis-
charges are authorized, thereby raising the Quality of
the waters in the State. Such charges shall be for the
further purpose of perfectingf preserving, and benefiting
navigation upon the waters of the State and protecting
the general public interest in such waters including
recreational and aesthetic interest. The charges are
not imposed for revenue purposes and any income re-
ceived by the State under this section shall be used
solely for the purposes of water quality management and
pollution control.]
[(2' How established: A pollution charge is the price
to be paid per unit of waste discharged into waters of
- 114 -
-------
the State. The charge may vary among different types of
classes of wastes to account for variations in the de-
grading effects of various wastes. The charges may also
vary to account for variations in the water quality stand-
ards of different classes and the hydrologic conditions
of different receiving waters. In establishing the
charges, the [agency] shall attempt to approximate in
economic terms the damage done to other users of the
waters, both private users and the general public
caused by the degrading effect of various types of waste
in varying volumes and frequencies of discharge upon
water qualities of the different classes of waters. In
determining relative degrading effect, the [agency] may
employ any scientific or technical criteria or para-
meters such as biochemical oxygen demand and suspended
solids and may express the unit charge in terms of such
standards of measurement.]
Source; Council of State Governments, 1971 Suggested
State Legislation, Vol. XXX.
- 115 -
OU.B. OOVBHNMINT PRINTING OfflCliWJ S46-313/173 1-3
------- |