CHAPTER 9

 

EMERGENCY WATER PROJECTS

 

Section 1. Purpose.  The purpose of Chapter 9 is to implement Wyoming Statute § 41-2-124(f)-(k) by providing for eligibility determination, procedures and criteria for the application and award of funds from the emergency water projects account (EWPs), and authorizing a voluntary pool program within the emergency water projects account. The provisions in this chapter shall govern emergency water projects and, to the extent this chapter's provisions conflict with other provisions in these rules, this chapter shall control.

 

Section 2.Eligible Projects and Applicants.  Eligible emergency water projects shall meet the eligibility requirements under Wyoming Statute § 41-2-124(g)-(k). In addition, eligible applicants for emergency water projects shall meet the definition of an EWP Sponsor as defined in these rules.

 

Section 3.Applications.

 

(a)Applications for emergency water projects shall be submitted to the Office using forms prepared by the Office. Applicants may submit an application based on their knowledge or belief at the time of the application. The application shall include:

 

(i)A description of the affected irrigation infrastructure at issue in the project;

 

(ii)Information establishing that the applicant is a political subdivision that owns or has the legal responsibility to operate or maintain the irrigation infrastructure, and therefore could meet the definition of an EWP Sponsor;

 

(iii)Information establishing that the irrigation infrastructure has been rendered permanently inoperable, or is likely to be rendered permanently inoperable, due to an act of God including fire, earthquake, hurricane, storm or other similar natural disaster or phenomena or an unforeseen or impending natural or man-made event that requires immediate action to prevent a threat to or loss of life or property. This information may include, but is not limited to: the present condition of the irrigation infrastructure and the water system it serves; the known or anticipated threat to, or effect on, public safety, property, or the applicant's system or services; when the applicant learned the irrigation infrastructure was rendered inoperable or likely to be rendered inoperable; and any repairs or maintenance planned for the irrigation infrastructure prior to the applicant learning that infrastructure was inoperable or likely to be rendered inoperable; and

 

(iv)An approved resolution or other documentation establishing that the applicant has legally authorized the submission of the application and supports the project.

 

 

(b)Applicants shall supplement their applications with new or more accurate information as it becomes available to them, or in response to the Commission's or the Office's requests for additional information.  The supplemental information shall include, but is not limited to:

 

(i) A description of the emergency water project and the affected irrigation infrastructure. This description shall include, but is not limited to:

 

(A)The applicant's services or water supply systems affected by the current or anticipated inoperability of the irrigation infrastructure;

 

(B)The threat to or effect on public safety or property;

 

(C)The amount of acreage, water, and users affected by the current or anticipated inoperability of the affected irrigation infrastructure;

 

(D)Any repairs, replacement, or maintenance that are currently known, or anticipated to be, required to make the affected irrigation infrastructure operable or to restore the applicant's affected services or water supply systems;

 

(E)Any investigations known or anticipated to be required for the emergency water project;

 

(F)Estimated costs for the emergency water project and the EWP Sponsor's proposed method of payment and requested financing;

 

(G)Maintenance and/or repairs conducted on the affected irrigation infrastructure in the past;

 

(ii)A list of the applicant's past projects funded by the Commission, including date of completion;

 

(iii)Financial capabilities of the applicant, including the annual budget for operation, maintenance, and replacement of applicant's water supply system; the existing balance in any emergency funds and sinking funds for applicant's water supply system; water rates, tap fees, and other revenue sources; and the amount of funding obtained from other revenues for operation, maintenance, and replacement of the applicant's water supply system;

 

(iv)Applicant's personnel, equipment, or other available resources to perform repairs or maintenance on its own;

 

(v)A listing of all funding sources anticipated to be used by the applicant for the project, all funding the applicant has already applied for or anticipates applying for, and an estimated schedule when those sources of funding may be available;

 

(vi)A list of the persons, including contact information, who assisted in preparing the application or collecting and providing the information relied on in the application;

 

(vii)A list of engineers or other professionals the applicant has engaged to work on the emergency water project, and their qualifications;

 

(viii)A certified original of a resolution in support of the application passed by the governing body of the applicant, or other evidence of support for the application from the applicant's governing body or its constituents; and

 

(ix)Any other information requested by the Office.

 

(c)Upon receipt of an application and supplemental information thereto, the Director and the Office shall review the submissions and develop recommendations to be considered by the Commission. The Director and the Office may ask the applicant to provide additional information to assist in preparing the recommendations. The Director and the Office shall also arrange a meeting of the Commission to consider the application. The Director and the Office may begin arranging such a meeting before the completion of their recommendations.

 

(d)The Commission may provide an initial recommendation to the State Loan and Investment Board based on the application information provided under paragraph (a) of this section.  The Commission may provide additional recommendations to the State Loan and Investment Board based on supplemental information provided under paragraph (b) of this section as the information becomes available.

 

Section 4.Commission Evaluation and Recommendations.

 

(a)Prior to making recommendations to the State Loan and Investment Board regarding the application, the Commission shall allow for comments from the applicant and receive the recommendations of the Director.

 

(b)The Commission shall evaluate applications for emergency water projects by considering information in the project application, the Director's recommendations, the applicant's comments to the Commission, and any other information presented to the Commission regarding the proposed project.

 

(c)In preparing its recommendations to the State Loan and Investment Board, the Commission may consider factors including, but not limited to:

 

(i)Whether the applicant and the proposed project are eligible for funding under Wyoming Statute § 41-2-124(g)-(k) and these rules;

 

(ii)The scope, nature, and condition of the permanently inoperable or likely to be rendered permanently inoperable affected irrigation infrastructure;

 

(iii)The effects caused by the irrigation infrastructure being rendered or likely to be rendered permanently inoperable. Evaluation of the effects may include, but is not limited to, public safety, or the amount of affected acreage, water, or users;

 

(iv)What rendered the irrigation infrastructure permanently inoperable;

 

(v)What is likely to render the irrigation infrastructure permanently inoperable, and the likelihood or urgency of that event;

 

(vi)Whether continuing normal operation of the irrigation infrastructure for its intended/permitted uses is likely to cause the infrastructure to fail or otherwise become permanently inoperable, and whether that operation must cease to prevent inoperability;

 

(vii)When the applicant learned the irrigation infrastructure had been rendered, or was likely to be rendered, permanently inoperable;

 

(viii)The proposed or potential components of the emergency water project. Evaluating the components may include, but is not limited to, whether the proposed project would exceed the repair, replacement, or maintenance required to address the irrigation infrastructure's inoperability;

 

(ix)The estimated or potential costs of the emergency water project;

 

(x)Financial capabilities of the applicant;

 

(xi)Resources of the applicant to perform its own repairs or maintenance;

 

(xii)Proposed or potential other funding sources, including other potential forms of funding from the Commission;

 

(xiii)Qualifications of engineers or other professionals the applicant proposes to work on the emergency water project;

 

(xiv)Whether the applicant is current on all repayment obligations to the State; and

 

(xv)The applicant's past efforts to maintain the affected irrigation infrastructure.

 

(d)After considering each application, the Commission shall vote whether to adopt, amend, or reject the Director's recommendations. The Commission's recommendations to fund an emergency water project shall be submitted to the State Loan and Investment Board for the board's consideration.  The Commission may elect to make an initial funding recommendation to the board based on the information provided in paragraph (a) of Section 3 and supplemental recommendations based on information provided in paragraph (b) of Section 3 as it becomes available.

 

Section 5. Projects Awarded Funds.  

(a)Emergency water project account funds shall not be released for an approved project until the Commission has recommended funding the project and the State Loan and Investment Board has approved funding the project. Unless otherwise authorized by the Commission, emergency water project account funds shall also not be released until the EWP Sponsor has executed a project agreement (and when applicable, a note and a security agreement) with the Commission. Construction of the project and construction administration/inspection shall commence upon the Office's issuance of a notice to proceed.

 

(b)Once the project agreement is in effect, the EWP Sponsor shall submit to the Office all eligible expenses for reimbursement. Upon review and approval of the Office, reimbursement of eligible expenses shall be distributed to the EWP Sponsor. Consideration of reimbursement of expenses incurred prior to execution of the project agreement will be at the sole discretion of the Commission.

 

(i)Emergency Water Project eligible expenses include professional services, materials, and labor necessary during, and immediately following, a disaster to restore operation, minimize the extent of damage or to protect remaining facilities. Incidental expenses for the temporary repair of facilities damaged as a direct result of the disaster and to restore temporary functionality, even if reduced, may be eligible. In evaluating the eligibility of expenses, the Office shall consider, among other factors, if incurred expenses were undertaken with proper consideration for the appropriate scope and timeline needed to conduct temporary repairs, and that the intent of emergency water projects account funds is not to repair damage as a result of a preexisting, non-disaster related or inherently deficient condition; nor is it the intent of these funds to fully rehabilitate pre-disaster functionality or condition.

 

(c)The Commission may review, modify, or terminate emergency water projects or their funding at any time after approval. However, to increase the emergency water projects account funding for an ongoing emergency water project, the Commission must make a recommendation to the State Loan and Investment Board and the Board must review and approve that recommendation prior to release of the additional funds.

 

(d)Funding for an emergency water project shall cease when:

 

(i)The Commission determines the project is complete;

 

(ii)The Commission determines a suitable temporary fix is complete and services are temporarily restored;

 

(iii)The Commission determines the project costs are no longer eligible; or

 

(iv)Additional funding becomes available through the Water Development Program or other sources.

 

(e)Except as otherwise specifically provided by the Commission, each emergency water project shall be subject to the following general conditions:

 

(i)Each EWP Sponsor shall offer security for the emergency water project loan as deemed adequate and acceptable to the Attorney General;

(ii)The Office shall establish repayment schedules for project loans in accordance with the conditions prescribed in this section. The date project benefits accrue to the EWP Sponsor, for purposes of triggering loan repayment schedules, shall be determined by the Commission;

 

(iii)Each EWP Sponsor or their representative shall supervise design and construction of the emergency water project and submit all requests for payment to the Office for approval. Upon review and approval of the Office, reimbursement of eligible expenses shall be distributed to the EWP Sponsor;

 

(iv)EWP Sponsors shall not make construction funding commitments until after the Office provides written concurrence to construction budgets and construction plans;

 

(v)The Commission and the Office shall make payments directly to the EWP Sponsor;

 

(vi)The EWP Sponsor shall be responsible for operation and maintenance of the emergency water project;

 

(vii)The EWP Sponsor is responsible for all emergency water project expenditures in excess of the approved total project budget and any non-eligible expenses;

 

(viii)If the Commission determines that any EWP Sponsor has, without good cause, abandoned completion of the emergency water project, that EWP Sponsor, in addition to being required to repay the loan, shall be obligated to immediately repay the full amount of all grant funds actually expended, unless offset by any funds contributed to the voluntary pool program, plus interest as established by the State Auditor in an amount equal to the interest that would have accrued on the expended grant funds in the emergency water projects account from the date of expenditure; and

(ix)The EWP Sponsor shall comply with its applicable laws and procedures to procure construction and professional services.

 

Section 6.Voluntary Pool Program.A voluntary pool program is authorized within the emergency water projects account. A political subdivision that meets the definition of an EWP Sponsor in these rules may participate in the voluntary pool program. Each participant may contribute funds into a separate subaccount within the emergency water projects account. Funds within each participant's subaccount shall only be used for emergency water projects sponsored by that contributing participant. The Office shall administer the voluntary pool program, including but not limited to receiving and depositing participants' contributions, and disbursing pool funds for emergency water projects. Pool funds may only be applied to offset the loan portion of an approved emergency water project. At a participant's request, the Office may withdraw funds from the participant's subaccount and return them to the participant. A participant that expends or withdraws all of the funds from its subaccount shall be removed from participation in the voluntary pool program.