The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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OREGON BUSINESS DEVELOPMENT DEPARTMENT

 




















DIVISION 43
WATER/WASTEWATER FINANCING PROGRAM



















123-043-0000
Purpose and Objectives
Pursuant to ORS 285B.563, the Oregon Business Development Department is required to adopt rules that provide procedures, standards and criteria for the Water/Wastewater Financing Program.
Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 10-1993(Temp), f. & cert. ef. 10-4-93; EDD 7-1994, f. & cert. ef. 4-7-94; EDD 7-2002, f. & cert. ef. 4-26-02; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09
123-043-0010
Definitions
For the purposes of these rules additional
definitions may be found in Procedural Rules, OAR 123-001. As used in this division
of administrative rules, the following terms shall have the following meaning, unless
the context clearly indicates otherwise:
(1) "DEQ" means the State
of Oregon Department of Environmental Quality.
(2) "Facilities" means something
that is built or installed to perform some particular function.
(3) "Fund" means the water
fund created by ORS 285B.563.
(4) "Grant" means an award
to a municipality of monies that can be used to reimburse eligible project costs.
Grant funds are not required to be repaid when contract conditions are met.
(5) "Non-compliance" means
the municipality has received a notice of non-compliance with:
(a) Drinking water quality
standards administered by the Oregon Health Authority Drinking Water Services; or
(b) Water quality statutes,
rules, orders, or permits administered by DEQ or the Environmental Quality Commission.
(6) "Project" means only
a project for constructing or improving a drinking water system, or a project for
constructing or improving a system for waste water collection or treatment, including
storm drainage systems as defined in ORS 285B.560(4) and (5).
(7) "System" means the interconnected
facilities that are required or useful for performing the required function.
(8) "Technical Assistance"
means preliminary engineering or planning; legal, financial, and economic investigations,
reports and studies to determine the feasibility of a Project. Technical Assistance
also means required Water Master Plans or Wastewater Facilities Plans needed to
allow communities to properly plan for the future.
[Publications: Publications referenced
are available from the agency.]
Stat. Auth.: ORS 285B.563
& 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 10-1993(Temp),
f. & cert. ef. 10-4-93; EDD 7-1994, f. & cert. ef. 4-7-94; EDD 7-2002, f.
& cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp),
f. & cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08;
EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef.
1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 6-2011(Temp), f. &
cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12; OBDD
12-2013, f. 12-30-13, cert. ef. 1-1-14
123-043-0015
Eligible Project Costs and Activities
(1) Eligible costs include the reasonable
costs as determined by the Authority for eligible program activities and include:
(a) Project development costs;
(b) Construction contingencies
as approved by the Authority for a project;
(c) Financing costs associated
with the department's financing including capitalized interest, issuance and debt
service reserve costs, when such costs are incurred in funding a project;
(d) Costs incurred by the
municipality prior to a non-technical assistance award if such costs are allowable
under the Department’s adopted policy for reimbursement of pre-award costs;
and
(e) At the discretion of
the Authority, reasonable, new project management costs but not expenses for current
staff that are already included in the municipality's adopted budget.
(2) Eligible project and
program activities include the construction, improvement or expansion of the following
facilities owned and operated either by the municipality or under a management contract
or an operating agreement with the municipality:
(a) Domestic drinking water
systems including all facilities necessary for source, supply, filtration, treatment,
storage, transmission, and metering;
(b) Wastewater systems including
all facilities necessary for collecting; conveying, pumping, treating and disposing
of sanitary sewage, including correction of infiltration and inflow through replacement
of lines, sliplining, or other corrective processes approved by the Authority;
(c) Storm drainage systems
including all facilities necessary for controlling, collecting, conveying, treating
and discharging of storm water;
(d) The acquisition of real
property directly related to or necessary for the proposed project; and
(e) Project development and
the associated engineering, architectural and planning work involved in developing
the facilities listed in (1) above, including technical assistance and support activities
necessary to the construction of a project as determined by the Authority.
Stat. Auth.: ORS 285B.563
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 7-2002, f. &
cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09,
cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; OBDD
30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14
123-043-0025
Ineligible Project Costs
Expenses and costs expressly allowed
by OAR 123-043-0015 are eligible for reimbursement from the fund. All other costs,
including but not limited to those listed below, are ineligible for reimbursement:
(1) Costs incurred for facilities
that are or will be privately owned.
(2) Cost of purchase of general
purpose motor vehicles and other equipment not directly related to the project.
(3) Cost of purchase of off-site
property for uses not directly related to the project; and
(4) Project operating or
maintenance expenses.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 7-2002, f. &
cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09,
cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative
correction 7-27-10; OBDD 42-2010, f. 11-30-10, cert. ef. 12-1-10; OBDD 6-2011(Temp),
f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12;
OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14
123-043-0035
Criteria and Limitations for Funding
— Non-Technical Assistance Projects
(1) The intent of the Legislature was
to provide funding to municipalities to assist in complying with the Safe Drinking
Water Act and the Clean Water Act. Therefore, priority will be given to projects
necessary to ensure that municipal water and wastewater systems comply with the
requirements of:
(a) Drinking water quality
standards administered by the Oregon Health Authority Drinking Water Services; or
(b) Water quality statutes,
rules, orders, or permits administered by DEQ or the Environmental Quality Commission.
(2) If a municipal water
or wastewater system has not been issued a notice of non-compliance by the governing
regulatory authority, the Authority may determine that a proposed project is eligible
for assistance upon a finding that one of the following has been met:
(a) The Authority deems it
reasonable and prudent that an award from the fund will assist in bringing the drinking
water, storm water or wastewater system into compliance with the requirements of
the Safe Drinking Water Act, the Clean Water Act, those requirements proposed to
take effect within the next two years, or the requirements of other regulatory agencies
recognized by the Authority as having responsibility for the protection of water
quality and the supply of clean drinking water; or
(b) A recent letter has been
issued by the appropriate regulatory authority, typically the Department of Human
Services Drinking Water Program, DEQ, or its contracted agent, which indicates a
high probability that the system owner will soon be notified of non-compliance with
either the Safe Drinking Water Act or the Clean Water Act.
(3) The Authority generally
will not fund projects without the conditions of 123-043-0035(2) being met.
(4) The project must be consistent
with the acknowledged local comprehensive plan.
(5) The Authority encourages
regionalization whenever feasible.
(6) The Authority encourages
asset management planning where possible.
(7) The Authority will apply
approved prioritization utilizing criteria listed in this section when reviewing
project information contained in project notification intake form.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 7-2002, f. &
cert. ef. 4-26-02; EDD 1-2003(Temp) f. 2-20-03, cert. ef. 2-24-03 thru 6-30-03;
EDD 8-2003(Temp), f. & cert. ef. 9-24-03 thru 3-22-04; EDD 9-2004, f. &
cert. ef. 3-22-04; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f.
& cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08;
EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef.
1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013,
f. 12-30-13, cert. ef. 1-1-14
123-043-0041
Criteria and Limitations for Funding
— Technical Assistance Projects
(1) Awards are available to municipalities
with populations of less than 15,000 people for technical assistance. If the project
is for a facility plan or study required by a regulatory agency, the municipality
is not required to document non-compliance. Other Technical Assistance projects
may be considered after consulting with and receiving documentation of non-compliance
from the regulatory agency.
(2) Technical assistance
grants and loans are subject to the following limitations:
(a) A grant of up to $20,000
per water, sewer, and storm drainage system may be awarded once every three (3)
years for a project;
(b) A loan of up to $60,000
may be awarded for a project. Interest shall be at 50 percent of the annual interest
rate for other loans made in accordance with the requirements of this OAR chapter
123, division 43. The loan term shall not exceed seven years;
(c) Pre-award expenses are
not eligible for reimbursement;
(d) No more than $600,000
shall be expended from the fund on technical assistance in any biennium. When awarding
a grant under this section the Authority will not first consider a municipality's
ability to repay a loan; and
(e) The application must
meet the requirements listed in OAR 123-043-0075(2).
(3) The loan shall be a full
faith and credit obligation which is payable from any taxes which the municipality
may levy within the limitations of Article XI of the Oregon Constitution and all
legally available revenues and other funds of the municipality. A pledge of specific
revenues of the municipality may be pledged in addition to the foregoing.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: OBDD 2-2010(Temp),
f. & cert. ef. 1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10;
OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14; OBDD 10-2014, f. 5-30-14, cert. ef.
6-1-14
123-043-0055
Loan and Grant Information
(1) The Authority may award financing
in a manner that maximizes the use of available resources and maintains the desired
credit standards of the fund. The Authority shall determine the amount, type, interest
rate and terms of any financing awarded. It may offer an alternate mix or lower
amount of assistance than requested. The amount of the award may be the minimum
amount that the department determines is necessary to enable the project to proceed,
and the Authority may investigate and recommend other sources of funds for all or
part of a proposed project. Projects that the Authority determines are not financially
feasible will not be funded.
(2) Loans for non-technical
assistance projects:
(a) The term of a loan is
limited to the usable life of the contracted project, or 30 years from the year
of project completion, whichever is less.
(b) Except as provided elsewhere
in OAR chapter 123, division 43, the interest rate on a loan is based on market
conditions for similar debt and is set at the time of the award.
(c) The interest rate on
a bond funded loan is equal to the coupon rates on the state revenue bonds funding
the loan. Until the state revenue bonds funding the loan are sold, the municipality
will pay interest at a rate established by the Authority on loan funds disbursed
to the municipality.
(d) Maximum amount for a
loan for a project will be determined by the Authority on the basis of the department's
financial analysis of the municipality's capacity for repaying the debt, the availability
of moneys in the fund and prudent fund management but will not exceed $10,000,000.
(e) The loan shall be a full
faith and credit obligation which is payable from any taxes which the municipality
may levy within the limitations of Article XI of the Oregon Constitution and all
legally available revenues and other funds of the municipality. A pledge of specific
revenues of the municipality may be required by the Authority to be pledged in addition
to the foregoing.
(3) Grants for non-technical
assistance projects: When making a determination to award a grant, the Authority
will apply prudent fiscal management of the fund in order to manage limited funding
resources. The Authority shall determine if the project meets the criteria of a
grant and make a determination on the amount of the grant based on financial need
or other special circumstances. In making its determination, the Authority shall
apply the following criteria:
(a) The Authority's financial
analysis determines that the municipality's financial resources, including its borrowing
capacity, are insufficient to finance the project;
(b) The projected annual
residential utility rate for the system is at least equivalent to a minimum rate
as determined by the Authority's policy. The Authority's policy may include such
factors as the most recent U.S. Census data on median household income and annual
adjustments for inflation since the most recent census;
(c) Only a distressed community
is eligible for a grant award; and
(d) Grants may be awarded
up to $750,000 based on the Department’s policy, but not more than 50 percent
of the financial award from the fund.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 7-2002, f. &
cert. ef. 4-26-02; EDD 1-2003(Temp) f. 2-20-03, cert. ef. 2-24-03 thru 6-30-03;
EDD 8-2003(Temp), f. & cert. ef. 9-24-03 thru 3-22-04; EDD 9-2004, f. &
cert. ef. 3-22-04; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f.
& cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08;
EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef.
1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013,
f. 12-30-13, cert. ef. 1-1-14
123-043-0065
Application Requirements
(1) A municipality may submit an application to the Authority at any time after the Authority has made a preliminary determination of eligibility and shall comply with the Authority's procedures for submitting applications. The Authority may, to the extent possible, assist municipalities in understanding program requirements and in completing applications.
(2) For a project that is part of a system that is, or will be, functionally connected to, another municipality's system, an intergovernmental cooperation agreement that describes the duties and obligations of each entity is required. The fully executed intergovernmental agreement must be provided before the financing contract will be executed by the Authority.
(3) The application shall be in the form provided by the Authority and shall contain or be accompanied by such information and documentation as the Authority may require. The Authority will process only completed applications.
Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09
123-043-0075
Application Review and Approval
(1) For a non-technical assistance project,
the Authority must make the following determinations:
(a) The municipality shall
document that a professional engineer registered in the State of Oregon has certified
in an engineering report, such as a Master Plan, that the proposed project is feasible,
is the most cost effective solution, and adequately serves the applicable land uses
in both the short and long term;
(b) The loan is secured by
the pledge of utility revenues or other revenues or payments from owners of specially
benefited properties, and these revenues or payments are sufficient, when considered
with other security, to assure repayment of the loan and the municipality has certified
to the Authority that there will be adequate funds available to repay the loans
made to the municipality from the fund;
(c) Moneys in the appropriate
accounts of the fund are or will be available for the project;
(d) The municipality is willing
and able to enter into a contract with the Authority;
(e) The project is consistent
with the requirements governing assistance from the fund. If the Authority determines
that the municipality or the proposed project does not meet the requirements of
this OAR 123-043-0075, the Authority may reject an application or require further
documentation from the municipality; and
(f) The project is ready
to begin and the municipality has committed in writing that, if awarded the assistance
it shall proceed immediately.
(2) To award assistance from
the fund for a technical assistance project, the Authority must make the following
determinations:
(a) The technical assistance
activities must be for a project that is eligible under the criteria listed in 123-043-0041;
and
(b) The municipality has,
or has demonstrated the ability to secure, the administrative capacity to undertake
and complete the project.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 7-2002, f. &
cert. ef. 4-26-02; EDD 1-2003(Temp) f. 2-20-03, cert. ef. 2-24-03 thru 6-30-03;
EDD 8-2003(Temp), f. & cert. ef. 9-24-03 thru 3-22-04; EDD 9-2004, f. &
cert. ef. 3-22-04; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f.
& cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08;
EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 30-2010, f. 6-30-10, cert. ef.
7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14
123-043-0085
Contract Administration and Disbursement of Funds
(1) The Authority shall disburse monies from the fund only after entering into a binding contract with the municipality.
(2) The contract shall be in a form provided by the Authority, and shall include:
(a) A provision that disbursements from the fund will be according to the terms of the contract;
(b) A provision that the liability of the Authority under the contract is contingent upon the availability of moneys in the fund for use in the project;
(c) If any portion of the assistance is in the form of a loan or the purchase of a bond of a municipality, a provision granting the Authority a lien on or a security interest in the collateral as determined by the Authority to be necessary to secure repayment of the loan or bond;
(d) A provision that, for a period of up to six (6) years after project completion, the Authority may request that the municipality, at its own expense, submit data on the economic development benefits of the project, including but not limited to information on new or retained jobs resulting from the project, and other information necessary to evaluate the success and economic impact of the project;
(e) For a drinking water project, a provision requiring the municipality to install meters on all new active service connections from any distribution lines that may be included in the project;
(f) For a drinking water project with existing, active unmetered service connections, a provision requiring the municipality to install meters on such service connections no later than two years after the completion of the project; and
(g) Other provisions that the Authority considers necessary or appropriate to implement the assistance.
(3) Other funds that may be needed to complete the project must be available or the municipality must have a binding commitment for such funds at the time the contract is executed. If a portion of the other funds needed to complete the project is committed but not available at the time an award is made or the contract executed, the contract shall require that the project be fully funded prior to any disbursement from the fund.
(4) The contract for a loan or grant shall be authorized by an ordinance, order or resolution adopted by the governing body of the municipality in accordance with the municipality's requirements for public notice and authorizing debt.
Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10
123-043-0095
Recipient Responsibilities
(1) The municipality must comply with all applicable state laws, regulations and requirements, such as Oregon prevailing wage rates, municipal audit law, and procurement regulations.
(2) The municipality shall maintain accounts and records for all activities associated with the contracted project and shall provide the Authority and its representatives reasonable access to such records. The municipality shall submit periodic reports on the project as requested by the Authority.
(3) The municipality shall certify that a registered professional engineer will be responsible for the design and construction of the project and it shall follow standard construction practices, such as bonding of engineers and contractors, requiring errors and omissions insurance, performing testing and inspections during construction, and obtaining as-built drawings.
(4) For a project funded with state lottery proceeds, the municipality shall comply with ORS 280.518 for public display of information on lottery funding of the project. At a minimum the municipality shall:
(a) Include the following statement, prominently placed, on all plans, reports, bid documents and advertisements relating to the Project: "This project was funded in part with a financial award from the Water Fund, funded by the Oregon State Lottery and administered by the State of Oregon, Business Development Department"; and
(b) For a construction project, post a sign, provided by the Authority, at the project site or, if more than one site is included in the project, at a site visible to the general public stating that the project is being funded by lottery proceeds.
(5) For a construction project the municipality shall have a plan for ongoing operation, maintenance and replacement that will preserve the project's benefits over its useful life.
Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10
123-043-0102
Eligibility Criteria for State Revenue Bond Loans
The Authority shall apply the following
standards for determining the eligibility of projects for state revenue bond financing:
(1) Loan repayment must be
secured by a full faith and credit pledge of the municipality;
(2) The loan must be of sufficient
size as determined by the Authority;
(3) The loan must be fully
amortized over its term with fixed annual principal and interest payments, and the
term of the loan must not exceed the usable life of the contracted project or 30
years from the year of project completion, whichever is less;
(4) The loan must conform
to the requirements of the bond indenture for the state revenue bonds; and
(5) The loan and the municipality
must meet the minimum underwriting criteria for state revenue bond financing as
established by Department policies.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 11-2006, f. &
cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 30-2010, f.
6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14
123-043-0105
Remedies
The Department may pursue any remedies available to it against a municipality upon the occurrence of an event of default under the Authority's contract with the municipality.
Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10
123-043-0115
Appeals and Exceptions
(1) Appeals of decisions made by the
municipality regarding a project must be made at the local level in accordance with
the requirements and procedures of the municipality.
(2) The director or the director’s
designee will consider appeals of the Authority's funding decisions. Only the municipality
may appeal. Appeals must be submitted in writing to the director within 30 days
of the event or action that is being appealed. A project that would have been funded
but for a technical error in the Authority's review of the application, as determined
by the director, will be funded as soon as sufficient moneys become available in
the fund, provided the project is still viable. The director or the director’s
designee decision is final.
(3) The director or the director’s
designee may waive any non-statutory requirements of OAR chapter 123, division 43,
if it is demonstrated such a waiver will further the goals and objectives of the
program.
Stat. Auth.: ORS 285B.563 & 285A.075
Stats. Implemented: ORS 285B.560
- 285B.599
Hist.: EDD 7-2002, f. &
cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09,
cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative
correction 7-27-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12;
OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12; OBDD 12-2013, f. 12-30-13, cert. ef.
1-1-14

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