W. Va. Code R. § 150-36-5

Current through Register Vol. XLI, No. 38, September 20, 2024

Section 150-36-5 - Utility Facilities; Service Pipes; Expansion of Service

5.1. Adequacy of Facilities.

5.1.a. The UCF of every stormwater utility shall be designed, constructed, maintained and operated to receive and transport the stormwater from its customers' facilities to its stormwater outfall within the design limits of its WVDEP stormwater permit for new and existing facilities and related Commission certificate of public convenience and necessity. The utility shall develop and implement its stormwater management program in order to reduce the discharge of pollutants to the MEP.

5.1.b. Construction and Maintenance of System - Each stormwater utility shall at all times construct and maintain its facilities to furnish safe, adequate, reliable and continuous service.

5.1.c. Inspection - Each utility shall inspect its plant and stormwater facilities in such manner and with such frequency as is necessary to insure a reasonably complete knowledge as to their conditions and adequacy at all times. Such inspections must comply with the legally applicable requirements.

5.1.d. Records of Conditions - Records necessary for the proper maintenance of the system in accordance with the WVDEP shall be kept of the conditions found. In special cases, a more complete record may be specified by the Commission.

5.1.e. Records of Operation - Each utility shall keep a record of the operation of its facilities, which, so far as practical, shall show sufficient details of facility operation as is necessary to substantially reproduce its daily operations. The records shall also be maintained in accordance with the requirements of the WVDEP.

5.1.f. Report to Commission - Each utility shall, upon request of the Commission, file with the Commission a statement regarding the condition and adequacy of its plant, equipment, and facilities, and of its operations, maintenance and service in such form as the Commission may require.

5.2. Utility Conveyance Facilities (UCFs).

5.2.a. Where the UCFs are required, the utility will furnish, install, and maintain the UCF and appurtenances up to a point of service. All such UCFs and appurtenances shall be installed by the utility except for agreements approved pursuant to Rule 5.4.g.6.

5.2.b. When, under the provisions of Rule 5.3, a hard-piped customer facility is required, the following rules shall apply.

5.2.b.1. The utility shall determine the location of the UCF.

5.2.b.2. The utility shall install and maintain, at its own cost and expense, the UCF to the point of service.

5.2.b.3. The utility shall not make any charge for furnishing and installing any permanent connection to the UCF, unless the utility has prior approval of the Commission to charge a connection fee and the same is set forth in the utility's tariff on file with the Commission.

5.2.b.4. The UCF shall remain under the utility's sole control and ownership.

5.2.b.5. The customer shall not attach any fixtures to, or make any branches in, the UCF. Violation of this rule may result in the withholding or_termination of service pursuant to these rules.

5.2.b.6. Temporary service connections for construction or other temporary purposes may be installed by the utility at the cost of the applicant. Such facilities may be installed by the applicant if there is a signed written agreement to that effect between the utility and the applicant.

5.2.b.7. Each utility shall adopt standard methods of installation where practicable. Such methods shall be set out with written descriptions and drawings to provide a clear understanding of the requirements; all of which shall be submitted to the Commission.

5.3. Customer Stormwater Facilities.

Rule 5.3 applies only to new development or redevelopment parcels of land that meet one or more of the following criteria:

(a) New development that involves the creation of 5,000 square feet or more of impervious cover, or involves other land disturbance activities of one acre or more;

(b) Redevelopment that includes the creation, addition, or replacement of 5,000 square feet or more of impervious cover, or that involves other land disturbance activities of one acre or more; or

(c) land disturbance activities that are smaller than the minimum applicability criteria set forth in (a) and (b) above, if such activities are part of a larger common plan of development, even though multiple, separate, and distinct land disturbance activities may take place at different times on different schedules.

5.3.a. When a discrete hard-piped customer facility is not required.

5.3.a.1. A user's or customer's stormwater contribution to the utility may not necessarily occur through discrete "hard-piped" infrastructure but rather, may be diffuse stormwater runoff from any portion of the property.

5.3.a.2. Once an application for service has been granted, the user or customer shall install and maintain the customer facilities on the customer's property.

5.3.a.3. The utility's authorized employee or representative shall inform the user or customer of the location of each point of service. The customer shall install the customer stormwater facilities on his or her property. The utility will install the UCFs to the point of service.

5.3.a.4. The Customer Conveyance Facilities shall be installed such as to follow the natural ebb and flow of the topographic features of the surrounding area or be constructed such that it is non-erosive and stable where grading is required. All installation specifications provided by the stormwater utility must be followed prior to obtaining service.

5.3.b. When discrete hard-piped customer facilities are required.

5.3.b.1. No customer, plumber, company owner or any agent shall connect to a non-hard-piped UCF from any property for the purpose of securing stormwater service, until application has been made therefore to the utility as provided in these rules and permission for doing so has been granted by the utility in writing. Connections to a hard-piped UCF should be made by the utility.

5.3.b.2. The customer service pipe shall be installed in a workmanlike manner, shall conform to all reasonable rules and regulations of the utility, and shall be maintained by the customer at his own expense.

5.3.b.3. In circumstances where a customer is required to install pipe in order to physically connect at the point of service to a UCF that is pipe, the utility will specify the size, kind, quality and location of all materials used in the customer's service pipe and the customer shall comply with those specifications.

5.3.b.4. A customer must maintain the customer service pipe in good condition and free from defects, at the customer's cost and expense. A customer's failure to comply with this rule may result in termination of water service pursuant to these rules.

5.3.b.5. The customer's service pipes and all connections and fixtures attached thereto shall be subject to the inspection of the utility before use, and thereafter shall at all reasonable hours be subject to inspection by a duly authorized employee or representative of the utility.

5.3.b.6. The utility shall make changes and bear the full costs of changes in the customer's discrete hard-piped facilities required due to changes in grade, relocation of the utility pipe, and other causes not related to the customer. The customer shall bear the full costs of changes in the customer's discrete hard-piped facilities desired by the customer for his or her convenience.

5.3.b.7. The connection of surface stormwater drains to any sanitary system is prohibited. The utility shall require immediate disconnection where evidence of a violation exists.

5.4. Installation of UCFs to serve new customers. Rules for installation of UCFs to serve new customers are generally tailored for hard-piped conveyance facilities necessary to carry flows from new customers. They may apply to other UCFs, such as pumping facilities, impoundments or other structures that are necessary due to the flows from the new customers. In such case, special consideration must be given to assure that other customers are not subsidized by the facilities installed for the new customers.

5.4.a. A stormwater utility is under a public service obligation to install required UCFs to serve new customers within its service area who may apply for stormwater management service.

5.4.b. Necessary UCFs shall be made available in all cases in which the public convenience and necessity require the UCFs, construction problems are not unusual or burdensome, and the new facilities appear to be economically feasible.

5.4.c. For any proposed UCFs, a reasonable relationship should exist between the per customer investment to serve new customers and the per customer investment to serve old customers.

5.4.d. When the UCFs required include hard-piped conveyance, every effort shall be made by a utility to install the conveyance in the public road right-of-way or in a utility right-of-way abutting the public road right-of-way.

5.4.e. Customer-specific UCF requirements.

5.4.e.1. The utility will respond to all inquiries regarding new stormwater service, whether oral or written, by explaining all available options for obtaining service under these rules.

5.4.e.2. The utility will, upon written request for service in the form of Stormwater Form No. 4, by a prospective customer or group of prospective customers located in the same neighborhood, determine the necessary UCFs required to give service specifically due to the request for service and make an estimate of the cost of providing the requested service, using the form of Stormwater Form No. 5, including pipe, conveyances, retaining structures, necessary materials, permits, labor costs incurred by the utility when the utility externally contracts for the construction of the extension, or internal labor costs, provided such internal or external costs are not recovered in existing rates, and other applicable related costs. When a road crossing(s) is (are) necessary to serve the customer(s) requesting service, the cost estimate shall not include costs attributable to extending the conveyance under the first road (closest to the already existing conveyance), but shall include the costs of installing the conveyance under a second and any subsequent road(s). The written estimate calculated using Stormwater Form No. 5 shall be provided to the customer in the form of Stormwater Form No. 6, no more than forty-five (45) days from the receipt by the utility of the written request for service. The written estimate shall include an estimated construction start date and an estimated time of construction. If the prospective customer believes that any part of the estimate is unreasonable, the customer is free to pursue an informal request for assistance from the Commission Staff or to file a formal complaint with the Commission. Further, the utility and the customer shall execute a Stormwater Extension Agreement. Commission Staff may be consulted to provide assistance and sample forms. The agreement must include as an attachment a copy of this extension rule. The utility shall keep an executed copy of the agreement for at least six (6) years. Where the UCF is needed to handle physical flows of stormwater, the length of the UCF extension required shall be that length required to extend from the new proposed stormwater service area to the nearest point of connection to the utility stormwater system having sufficient capacity to provide service.

5.4.e.3. Where the cost of the extension of the UCF does not exceed the estimated total revenue as calculated below, from prospective customers who will immediately be served by the new UCFs and from whom the utility has received applications for stormwater service upon forms provided by the utility for this purpose, the utility will install, at its own cost and expense, the necessary UCFs (utility financed UCFs); provided, that the patronage or demand will be of such permanency as to warrant the capital expenditure involved.

5.4.e.3.A. For residential units, annual revenue shall be based on the average monthly bill per residential unit over the past sixty months (or a reasonably estimated average monthly bill when sufficient historical data is not available) multiplied by twelve, unless circumstances of the applicant show this would result in significant error. For non-residential units, annual revenue shall be based on the actual impervious area designated in the application and any other factors that would affect the monthly bill applicable to such non-residential units.

5.4.e.3.B. Estimated total revenue for public service district utilities will be calculated as five (5) times estimated annual revenue.

5.4.f. UCF costs beyond the limit of utility financed UCFs.

5.4.f.1. If the estimated cost of the proposed UCFs required in order to furnish stormwater service exceeds the utility's estimate of total revenue as determined by Rule 5.4.e.4, such investment shall be made by the utility if the applicant or the applicant's authorized agent contracts for such investment in UCFs and deposits in advance with the utility the estimated cost of the UCFs over and above the limit of the utility funded portion. The utility shall not pay nor be liable for any interest on such cash deposits. The utility shall install the necessary UCFs after receiving the cash deposit. The utility shall, for each bona fide new customer who, within a period of ten years from the installation of such UCFs, uses the physical flow UCF between its original beginning and original terminus, and/or uses other UCFs funded by the new customer(s) pursuant to this rule, refund to the original depositor(s), an amount equal to the estimated total revenue of the new customer as determined by Rule 5.4.e.4, but in no event shall the aggregate refund made to the depositors exceed the original deposit. Provided, however, public service districts may elect to refund the estimated amount over a period of five years making payments no less frequently than every six months.

5.4.g. General provisions.

5.4.g.1. Should the actual cost of the UCFs be less than the estimated cost, the utility will refund the difference as soon as the actual cost has been ascertained, but in no event longer than ninety days after completion of construction of the UCFs. When the actual cost of the UCFs exceeds the estimate cost, then the utility will bill the depositor(s) for the difference between the estimated and the actual cost. The customer(s) may pay this additional amount in reasonable installments. No interest will be added on the applicant's payment or on any balance to be refunded.

5.4.g.2. In estimating the cost of UCFs, the estimate shall be based on the individual design of the receiving UCF unless actual use estimated for the proposed customer or customers required a different design.

5.4.g.3. UCFs installed under this rule shall be and remain the property of the utility.

5.4.g.4. The utility reserves the right to further extend its flow conveyance UCF from and beyond the UCF installed under this rule, and the depositor or the depositor's agent paying for an extension shall not be entitled to any refund for the attaching of customers to such further flow conveyance facilities or branch facilities so installed.

5.4.g.5. In determining the length of UCF flow conveyance extensions to be installed in an urban area when land is subdivided in lots, a UCF shall be extended to fully cover the drainage area of all subdivided and cleared lots ready for construction. The design of the UCF shall meet all future capacity needs of all finished lots as platted in the property records submitted to the county or other entity having jurisdiction over new construction planning. In rural areas or open land areas, any flow conveyance UCF required will be that length necessary to adequately serve the applicant(s) and to meet the stormwater utility obligations.

5.4.g.6. This rule shall not be construed as prohibiting the utility from entering into an agreement that complies with the Commission approved checklist attached hereto as Stormwater Form No. 7, in providing an alternate plan for UCFs necessary to serve a new customer(s). Commission Staff may be consulted to provide assistance and sample forms. In providing an alternate plan for UCFs, a utility may not discriminate between customers whose service requirements are similar. The agreement shall be filed with and approved by the Commission prior to the implementation or execution of the agreement by any of the parties. The agreement shall include the name, address and phone number of the parties to the agreement. The agreement shall also include a provision explaining why the utility and the customer(s) are not funding the extension pursuant to this rule. The agreement must attach a copy of this Rule 5.4, and a statement signed by the party or parties other than the utility that he has reviewed and understands the provisions of Rule 5.4.f which entitles a customer to refunds and that he knowingly has entered into an alternative agreement that may waive such rights, if applicable. If there is an expectation of reimbursement by the party or parties for some portions of the UCFs installed under an alternative agreement, failure to obtain Commission approval may result in the loss of the right to obtain reimbursement from the utility. If an entity other than the utility constructs the extension, upon completion of construction and proper utility inspection of the extension, the utility shall be responsible for the facilities only after proper transfer of title to all facilities including property, plant and rights-of-way incidental to the furnishing of utility service.

5.4.g.7. Commencement of service - The utility shall not be required to make utility funded extensions or refunds as described in this rule unless those to be served by such extensions shall guarantee to the utility that they will pay for service at their premises within ninety days after service is available or as otherwise mutually agreed in a user agreement.

5.4.g.8. Construction conditions - Construction of UCFs, as provided in this rule, will be undertaken promptly after all applications have been completed, necessary right-of-way agreements or rights of entry have been delivered to the utility, and all prospective customers have signed user agreements that have received the prior approval of the Commission.

5.4.g.9. Right-of-Way.

5.4.g.9.A. If the construction of UCFs involves the acquisition of a private right-of-way, then the prospective customer shall attempt to secure the right-of-way and deliver it to the utility free of cost before construction of the UCFs is started.

5.4.g.9.B. If it is not reasonably possible for the prospective customer or customers to secure the right-of-way, and the construction of a UCF involves the utility incurring expense for right-of-way easements, either by purchase or condemnation, such costs shall be added to the total cost of the UCFs.

5.4.g.9.C. As a condition to obtaining necessary UCFs, any property owner or developer shall grant the utility the necessary easements which would allow the utility to make future expansions of UCFs or extensions of flow conveyance UCFs. The granting of the necessary easements shall be made without the utility being required to pay additional consideration for the additional easements to the property owner or developer. If the property owner or developer is unwilling to grant the additional easements, the utility shall not be required to install necessary UCFs to serve the property owner or developer. This requirement may be waived by mutual agreement or the property owner or developer may petition the Commission for a waiver or modification if the easement requirement would create a hardship on the property owner or developer.

W. Va. Code R. § 150-36-5