Chapter 11
Clean Water State Revolving Fund Loans
Section 1. Authority.
This Chapter is adopted pursuant to Wyoming Statute 16-1-203(a).
Section 2. Definitions. In addition to the definitions in Chapter 1, as used in this Chapter:
(a) "Additional Subsidies" means principal forgiveness, grants, and Green Project Reserves loans as authorized by state or federal legislation and as adopted by the Board.
(b) "County" means a political subdivision of the State of Wyoming pursuant to W.S. 18-1-101(a)-(y).
(c) "DEQ" means the Wyoming Department of Environmental Quality.
(d) "Emerging Contaminants" refer to substances and microorganisms, including manufactured or naturally occurring physical, chemical, biological, radiological, or nuclear materials, which are known or anticipated in the environment, that may pose newly identified or re-emerging risks to human health, aquatic life, or the environment. These substances, microorganisms, or materials can include many different types of natural or manufactured chemicals and substances - such as those in some compounds of personal care products, pharmaceuticals, industrial chemicals, pesticides, and microplastics. For Infrastructure Investment and Jobs Act (IIJA) Emerging Contaminants funding, eligible emerging contaminants are identified by the United States Environmental Protection Agency (USEPA).
(e) "Emergency" means an imminent direct threat to the continued operation of a community water system.
(f) "Green Project Reserve" means funds loaned for projects meeting the requirements of the USEPA for such projects to implement a process, material, technique, or technology that addresses water or energy efficiency goals, mitigates stormwater runoff, or encourages sustainable project planning, design, and construction.
(g) "Initiating Operations" means the earliest point in time when a capital infrastructure project is ready for use even if only for system testing purposes.
(h) "Intended Use Plan (IUP)" means the annual plan that priority ranks eligible Wyoming projects for funding consideration by the Board that meet 1987 Clean Water Act amendments, the requirements of W.S. 16-1-203(c)(i), and the IIJA.
(i) "Infrastructure Investment and Jobs Act of 2021" (IIJA) means U.S. Public Law 117-58, signed November 15, 2021; providing supplemental funding for eligible projects and funding to address Emerging Contaminants.
(j) "Joint Powers Board(s)" means legally organized Wyoming entities authorized to engage in joint or cooperative action by the Wyoming Joint Powers Act pursuant to W.S. 16-1-101 et. seq.
(k) "Municipalities" means any incorporated or chartered city or town as established under Wyoming law (W.S. 15-9-103 (a)(x)).
(l) "Principal Forgiveness (PF)" means a portion of the loan's principal is forgiven and need not be repaid.
(m) "Special District" means any legally formed special district in Wyoming that is eligible for program funding.
(n) "Special Program Requirements" means the requirements set forth in state or federal law or directives and as adopted by the Board that may include, but are not limited to, restrictions on the types of project materials that may be used, required funding reserves, qualification-based selection of architectural and engineering services, and minimum wage requirements.
(o) "State Environmental Review Process (SERP)" means the review conducted by DEQ, pursuant to W.S. 16-1-204(a), of potential environmental impacts of projects receiving assistance from the Account.
(p) "Substantial Completion" means that stage in a project when the capital infrastructure constructed is capable of initiating operations or can be used for its intended purpose.
(q) "USEPA" means the United States Environmental Protection Agency.
(a) The Board shall approve loans, grants, and Additional Subsidies under the provisions of this Chapter in such a manner and to such applicants as shall, in the judgment of the Board, inure to the greatest benefit of the citizens of the State of Wyoming and represent a prudent use of loan funds.
(b) Supplemental and Emergency Contaminant funding for loans, grants, and additional subsidies under this Chapter is subject to a supplemental congressional appropriation in the IIJA. To facilitate key provision of this Act, the Board will consider funding applications for:
(i) Projects addressing Emerging Contaminants; and,
(ii) Conventional clean water projects.
Section 4. Additional Subsidies and Special Program Requirements.
(a) Notice. The Office of State Lands and Investments (OSLI) and DEQ will assess, at least annually, the impacts of state and federal law on the Clean Water State Revolving Fund loan program administered under this Chapter. OSLI will provide timely notice to eligible applicants of changes in Additional Subsidies and Special Program Requirements. Said notice will be not less than thirty (30) calendar days prior to any application deadline. Methods of notice include, but are not limited to, electronic, telephonic, written, website postings, video conferences or combinations of the same.
Section 5. Base and Supplemental Loan and Additional Subsidies Eligibility
(b) Additional Subsidies. Additional Subsidies shall be awarded in the form of Principal Forgiveness and Green Project Reserve loans. The Additional Subsidies will be awarded in accordance with all federal regulations. OSLI will award points based on population trend, income data, unemployment data, enterprise system rate management, and the prior year's property tax and four percent (4%) State sales tax collections to determine the amount of PF an applicant is eligible to receive. The determination of an applicant's PF eligibility status will be performed every year during the development of the IUP. Applicants whose total points are nine (9) or greater are eligible for PF of up to seventy-five percent (75%) of their loan amount. Applicants whose total points are equal to or greater than six (6) but less than nine (9) are eligible for PF of up to fifty percent (50%) of their loan amount. Applicants whose total points are equal to or greater than three (3) but less than six (6) are eligible for PF of up to twenty-five percent (25%) of their loan amount. Applicants whose total points are less than three (3) are not eligible for PF. Depending upon the total amount of PF funding available, the amount of PF actually awarded may be less than the eligible amount.
(A) Applicants whose population is five hundred (500) or less will receive three (3) points.
(B) Applicants whose population is between five hundred one (501) and three thousand, three hundred (3,300) will receive two (2) points.
(C) Applicants whose population is between three thousand, three hundred one (3,301) and ten thousand (10,000) will receive one (1) point.
(D) Applicants whose population is ten thousand, one (10,001) or greater will receive zero (0) points.
(ii) Income data points are awarded based on the ratio of the local annual median household income (AMHI) to the State AMHI, using data from the most recently released American Community Survey 5-year estimates. If no data directly corresponding to the applicant is available, the AMHI of the nearest Municipality will be used as the default. The applicant may provide alternate data acceptable to OSLI, such as an income survey, at the applicant's expense and in lieu of American Community Survey 5-year estimates.
(A) Applicants whose AMHI is less than sixty percent (60%) of the State AMHI will receive three (3) points.
(B) Applicants whose AMHI is sixty percent (60%) or greater, but less than seventy percent (70%) of the State AMHI will receive two and one-half (2.5) points.
(C) Applicants whose AMHI is seventy percent (70%) or greater, but less than eighty percent (80%) of the State AMHI will receive two (2) points.
(D) Applicants whose AMHI is eighty percent (80%) or greater, but less than ninety percent (90%) of the State AMHI will receive one and one-half (1.5) points.
(E) Applicants whose AMHI is ninety percent (90%) or greater, but less than one hundred ten percent (110%) of the State AMHI will receive one (1) point.
(F) Applicants whose AMHI is one hundred ten percent (110%) or greater of the State AMHI will receive zero (0) points.
(iii) Unemployment data points are awarded based on the relationship of the local unemployment rate to the State unemployment rate (State rate). Local and State unemployment rates for the most recent information by county as published by the Wyoming Department of Workforce Services will be used.
(A) Applicants whose unemployment rate is equal to or greater than the State rate will receive one (1) point.
(B) Applicants whose unemployment rate is less than the State rate will receive zero (0) points
(A) Applicants whose average annual water rate is two percent (2%) or greater of their AMHI will receive (1) point.
(B) Applicants whose average annual water rate is less than two percent (2%) of their AMHI will receive zero (0) points.
(v) Prior year's property tax and four percent (4%) State sales tax collection points will be awarded based on the amount of taxes collected by an entity, rounded to the nearest dollar, as reported in the most recently released Wyoming Department of Revenue's Annual Report. If no data directly corresponding to the applicant is available, the tax data for the nearest municipality will be used as the default.
(A) Applicants whose total collections are two hundred fifty thousand dollars ($250,000) or less will receive five (5) points.
(B) Applicants whose total collections are between two hundred fifty thousand one-dollar ($250,001) and five hundred thousand dollars ($500,000) will receive four (4) points.
(C) Applicants whose total collections are between five hundred thousand one-dollar ($500,001) and one million dollars ($1,000,000) will receive three (3) points.
(D) Applicants whose total collections are between one million one dollars ($1,000,001) and two million five hundred thousand dollars ($2,500,000) will receive two (2) points.
(E) Applicants whose total collections are between two million five hundred thousand one dollars ($2,500,001) and five million dollars ($5,000,000) will receive one (1) point.
(F) Applicants whose total collections are greater than five million dollars ($5,000,000) will receive zero (0) points.
(d) The amount of Green Project Reserve funding will be determined by DEQ based on the project information provided and the requirements of the state and federal regulations.
(e) AMHI data is based on information obtained from the most recent American Community Survey of the U.S. Census Bureau. Median Household Income data for Special Districts will be based on the closest Municipality unless income information via an income survey at district expense or other financial data acceptable to OSLI and the Board. If the applicant is a Special District or a Joint Powers Board, it must be legally formed and approved prior to submitting its loan application. All applicants must be in compliance with all applicable reporting requirements of both the Wyoming Department of Revenue and the Wyoming Department of Audit prior to its application being considered by the Board. For consideration at the October Board meeting, applicants must file their current financial reports with the Department of Audit by September 10th and notify OSLI in writing that the filing was done.
(f) Purposes. Loans and Additional Subsidies may be awarded by the Board pursuant to W.S. 16-1-205(a). The Board may authorize loans to refinance existing debt incurred completing an eligible project. The Board may also award loans and Additional Subsidies consistent with changes in state or federal law. Refinancing existing debt obligations for which debt was incurred during the completion of an eligible project and building began after March 7, 1985.
(g) Project Eligibility. Only projects on the current Clean Water State Revolving Fund Intended Use Plan are eligible for loans and Additional Subsidies under this Chapter. Eligible applicants are responsible for ensuring that their project(s) is(are) listed on the current Clean Water State Revolving Fund Intended Use Plan.
Section 6. Ineligible Project Costs. The following project costs shall be ineligible for reimbursement:
(a) Costs for any asset that is owned by a private property owner;
(b) Costs for tap fees, sewer and water fees, and plant investment fees;
(c) Engineering fees, including design, inspection and contract administration costs, over twenty percent (20%) of Board approved project costs, excluding design only or construction only Board approved costs;
(d) All non-cash costs except land that is integral to a treatment process and if allowable under federal law but not costs for land in excess of current fair market value and/or costs for an amount of land in excess of that needed for project purposes;
(e) Costs for preparation or presentation of grant or loan applications for any source of funding;
(f) Costs for transportation, meals, lodging, and incidentals incurred anywhere away from the site of the project or that exceed the current federal per diem reimbursement rate;
(g) Costs of tools, supplies, and furnishings for capital projects not included in DEQ approved construction contract documents, including but not limited to, capital equipment, hammers, tools, furniture, drapes, blinds, file cabinets, file folders, and survey stakes;
(h) Legal fees, except as pre-approved by DEQ and OSLI;
(i) Costs related to the issuance of bonds;
(j) Costs of elections;
(k) Costs to establish and form a Special Districts or Joint Powers Boards;
(l) Costs not allowed by the EPA;
(m) Costs incurred prior to loan award, except costs incurred for architectural and engineering design, surveying, state environmental review process (SERP) requirements or in emergency circumstances;
(n) Costs for change orders not approved by DEQ and OSLI;
(o) Lump sum contracts unless approved by DEQ and OSLI;
(p) Any costs - not supported by one or more invoices, receipts, or other documentation approved by DEQ and OSLI;
(q) Costs associated with the applicant's own employees and equipment, unless pre-approved by DEQ;
(r) Costs contrary to standard general State construction policies (for example, costs associated with engineer's and/or contractor's error(s));
(s) Markups by engineers/architects of sub-consultant and other outside charges;
(t) Portions of costs reimbursed or directly paid for by any other State or federal funding program;
(u) Projects undertaken using alternate design and construction delivery methods under W.S. 16-6-701, unless pre-approved by DEQ.
Section 7. Application Procedure.
(a) Applications. Separate applications shall be prepared for each loan. Applicants shall submit a complete application on a form provided by OSLI.
(b) Public Meeting Requirement. All eligible applicants must hold a minimum of one public meeting in advance of submitting an application for Board consideration. Notice of the public meeting is to be published in a local or regional newspaper fifteen (15) days prior to the same. The public meeting must provide the public an overview of the proposed project, financing and sustainability. The overview aspect of the public meeting must, at a minimum, address project scope, milestones and costs. The financing aspect of the public meeting must, at a minimum, address the financial impact of project costs upon the public. The sustainability aspect of the public meeting must, at a minimum, address the revenue streams, adjustments of water and sewer rates or other sources required to sustain the proposed project. Eligible applicants must verify compliance with the public meeting requirement through documentation submitted with their loan applications.
(c) Timing of Board Consideration. Applications must be received by the Director at least one hundred twenty (120) calendar days prior to the Board meeting at which the application will be considered. Applicants must cure any defects in their applications no later than forty-five (45) calendar days before the Board meeting at which the application will be considered.
(d) Incomplete Applications. Incomplete applications, those missing one or more of the information items requested and/or failing to meet established deadlines, shall not be presented to the Board for consideration until it is considered complete by program staff.
Section 8. Evaluation.
(a) Criteria. The Board shall evaluate applications utilizing the following criteria:
(i) Whether the applicant is current on all its repayment obligations to the Board;
(ii) Whether the applicant's dedicated source of revenue is acceptable to the Board and will be sufficient to repay its requested loan;
(iii) Whether the applicant is ready to proceed with construction or implementation of the project;
(iv) Whether the applicant has established an adequate operations and maintenance costs fund for the project for which applicant seeks funding;
(v) Whether the applicant has made a significant commitment of funding resources for the project for which it seeks funding;
(vi) The percentage of the applicant's population directly served by the project;
(vii) The project's priority rank on the current IUP; and
(viii) Whether the project is appropriately sized for the population to be served by the project.
(c) Interagency Consultation. OSLI shall facilitate interagency consultation with DEQ through the review of applications for loans and Additional Subsidies and the opportunity to provide comments to the Director for Board consideration. The Board shall request the DEQ to provide the services required under W.S. 16-1-201 through 207.
Section 9. Board Consideration.
(a) The Board shall consider each complete application, and allow for comments from the applicant, the Director and DEQ. The Board shall also establish loan amounts and terms. Loan terms shall not exceed thirty (30) years, or the useful life of the project, whichever is less.
(a) The interest rate for all loans made under this Chapter shall be established by the Board pursuant to Chapter 14 of these rules.
Section 11. Repayment.
(a) Annual payments for all loans shall begin one (1) year after Substantial Completion of the project as indicated in the final project contract. Annual payments for loans used to refinance existing debt shall begin no later than one (1) year after loan approval.
Section 12. Disbursement of Loan Proceeds.
(a) Requests for disbursements shall be submitted on a form provided by the Director and include supporting invoices establishing the eligibility of costs submitted for disbursements. Proceeds will only be disbursed for eligible project costs as set forth in this Chapter and within federal guidelines following review by OSLI and DEQ.
(b) Any loan for a project that spans more than one (1) construction season shall submit an updated timeline to OSLI and DEQ for the project not less than annually.
Section 13. Audits and Inspections.
(a) The Board shall ensure compliance with the provisions of the Single Audit Act and Subpart F of Title 2 U.S. Code of Federal Regulations (CFR) Part 200. Uniform Administrative Requirements. Cost Principles, and Audit Requirements for Federal Awards. On an annual basis records of loan recipients shall be, at a minimum, compiled by an independent accounting firm. Notification of compliance shall be made to the Board in the form of a Compilation, Review, or Audited Financial Statement prepared by an independent accounting firm. The Board may, at its expense, conduct an independent audit of the loan recipient's records and inspect the construction and operation of the project. Loan recipients shall maintain project accounts in accordance with the Governmental Accounting Standards Board (GASB).
(b) The Board may, at its expense, conduct an independent audit of the loan recipient's records and inspect the construction and operation of the project. Loan recipients shall maintain project accounts in accordance the Governmental Accounting Standards Board (GASB). The Boards auditors will conduct such an audit in accordance with Generally Accepted Government Auditing Standards (GAGAS). Loan recipients shall assist and provide any information required by the auditors.
(a) The Director, or the Director's designee, shall review all reports prepared by OSLI and DEQ for submission to the USEPA.
Section 15. Program Compliance.
(a) The Board shall administer the state revolving fund loan account program in accordance with all applicable federal laws and regulations. The Board shall enter into, and periodically update, a Memorandum of Understanding with OSLI and DEQ to implement the program and facilitate program compliance.
Section 16. Fees.
(a) Unless stated within these rules, a loan origination fee of one-half of one percent (0.5%) of the amount of the loan will be collected at loan closing. The fees will be deposited to the Administrative Account as authorized by W.S. 16-1-205(d).
(a) Loan and Additional Subsidies Eligibility.
(i) Applicants. Publicly Owned Water Systems in Wyoming listed on the IUP Project Priority List specifically related to Emerging Contaminants shall be eligible to apply for loans and Additional Subsidies under the Section.
(ii) Origination fees shall be waived for all loans closed utilizing the Emerging Contaminants capitalization grants from the IIJA bill.
(iii) Additional Subsidies. Additional Subsidies may be awarded in the form of PF, to the extent available, and in accordance with all federal regulations. All loans awarded under this section qualify for one hundred percent (100%) PF, contingent on compliance with federal requirements.
(iv) Disadvantaged Community Eligibility. All qualifying entities submitting loan applications for projects that address identified Emerging Contaminants through lab testing meeting the Emerging Contaminants definition in Section 2(d) are considered disadvantaged under this section and qualify for PF.
(b) Eligible Projects. Projects shall be eligible under this Section if they:
(i) Meet all Clean Water State Revolving Fund (CWSRF) eligibility criteria;
(ii) Are primarily intended to address previously identified Emerging Contaminants; and
(iii) Meet all other federal program requirements.
(c) Eligible Costs. The following project costs shall be eligible for reimbursement under this Section, subject to federal program requirements:
(i) Emerging contaminants costs associated with the construction of a new treatment facility or upgrade to an existing treatment facility that addresses Emerging Contaminants.
(ii) Costs for planning and design and associated pre-project costs.
(iii) Infrastructure related to pilot testing for treatment alternatives.
(iv) Costs not listed in Section 6 as being ineligible.
Section 18. Planning and Assessment Grants. The Board may use a portion of the Additional Subsidies from the capitalization grants to fund qualifying Planning and Assessment activities.
(a) The amount available for grants under this subsection shall be defined in the annual IUP.
(b) The following activities may qualify for grants under this subsection:
(i) Asset management, fiscal sustainability, cost and effectiveness analyses;
(ii) Capital improvement plans;
(iii) Integrated planning;
(iv) Long-term control plans;
(v) Water or energy audits;
(vi) Conservation plans facility plans;
(vii) Treatment works security and safety plans;
(viii) Risk or vulnerability assessments;
(ix) Emergency preparedness response and recovery plans;
(x) Drought management plans;
(xi) Climate adaptation plans;
(xii) Environmental management systems;
(xiii) Watershed management plans; and
(xiv) Total maximum daily load implementation plans.
(c) Applicants for grants under this Section shall submit an application on a form provided by OSLI and governed by the provisions of Section 8 of this Chapter.
(d) The Board shall award grants under this Section to such applicants and in such amounts as shall, in the judgment of the Board, inure to the greatest benefit of the citizens of the State of Wyoming and represent a prudent use of funds.