WEST VIRGINIA CODE
CHAPTER 5D. PUBLIC ENERGY AUTHORITY ACT.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-1. Short title.
This chapter shall be known and cited as the "West Virginia
Public Energy Authority Act."
§5D-1-2. Purpose and intent.
The Legislature finds and declares:
(a) That the long-term health and economy of the United States
will depend upon the availability of reliable sources of energy;
(b) That the state of West Virginia has abundant reserves of
coal, natural gas and other natural resources;
(c) That the economy of the state of West Virginia needs a
reliable and dependable market for the state's coal, natural gas
and other natural resources and the by-products thereof;
(d) That the state of West Virginia needs to encourage the
efficient utilization and disposition of by-products resultant from
the production of natural resources;
(e) That, with all due regard to the protection of the
environment and husbandry of the natural resources of this state,
the health, happiness, safety, right of gainful employment and
general welfare of the citizens of this state will be promoted by
the establishment and operation of coal fired electric generating
plants and transmission facilities and the establishment and
operation of natural gas transmission projects and/or other energy
(f) That the means and measures herein authorized for the
financing, building and operation of the facilities described in
subsection (e) are, as a matter of public policy, for the public
purpose of the state.
Accordingly, the public energy authority created herein shall
be authorized to initiate such directives and take such measures as
may be necessary to effectuate the public purpose of this chapter.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the West Virginia public energy
authority created in section four of this article, the duties,
powers, responsibilities and functions of which are specified in
(2) "Board" means the West Virginia public energy authority
board created in section four of this article, which shall manage
and control the West Virginia public energy authority.
(3) "Bond" means a revenue bond, or note or other evidence of
indebtedness, including, but not limited to, a taxable bond and
commercial paper, issued by the West Virginia economic development
authority or by the authority to effect the intents and purposes of
(4) "Construction" includes construction, acquisition,
reconstruction, enlargement, improvement and providing furnishings
(5) "Cost" as applied to natural gas transmission projects,
electric power projects or other energy projects authorized by the
authority includes, but is not limited to: The cost of their
acquisition and construction, including all costs pertaining to
pipelines; the cost of acquisition of all land, rights-of-way,
property rights, easements, franchise rights, contract rights,
lease rights and other rights or interests required by the authority for such acquisition and construction; the cost of
demolishing or removing any pipeline, buildings or structures on
land so acquired, including the cost of acquiring any lands to
which such pipelines, buildings or structures may be moved; the
cost of acquiring or constructing and equipping a principal office
and suboffices of the authority; the cost of diverting highways,
interchange of highways and access roads to private property,
including the cost of land or easements therefor; the cost of all
machinery, furnishings and equipment, all financing charges, and
interest prior to and during construction and after completion of
construction; the cost of all engineering services and all expenses
of research and development with respect to natural gas
transmission projects, electric power projects, and related
facilities; the cost of all legal services and expenses; the cost
of all plans, specifications, surveys and estimates of cost and
revenues; all working capital and other expenses necessary or
incident to determining the feasibility or practicability of
acquiring or constructing any such projects; all administrative
expenses and such other expenses as may be necessary or incident to
the acquisition or construction of any such projects; the financing
of such acquisition or construction, and the cost of financing of
the placing of any such project in operation. Any obligation or
expenses incurred after the effective date of this article by any
person, with the approval of the authority, for surveys, borings,
preparation of plans and specifications and other engineering services in connection with the acquisition or construction of a
project shall be regarded as a part of the cost of such project and
shall be reimbursed out of the proceeds of loans or bonds as
authorized by the provisions of this article.
(6) "End-user" means any person who consumes or uses natural
gas in connection with any industrial, commercial, residential or
other use, except that such term shall not include any person
purchasing such natural gas for resale to another person. For
purposes of this article, the term end-user shall include local
distribution companies and intrastate pipelines as defined in
article three, chapter twenty-four of this code.
(7) "Electric power project" means the complex of structures,
machinery and associated equipment for the generation or
transmission of electricity including the production and
distribution of other energy produced from coal, natural gas and
by-products of coal occurring as a result of the production of
coal, and all facilities related or incidental thereto.
(8) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; public service districts; regional governmental
authorities and any other governmental agency, entity, political
subdivision, public corporation or agency; the United States
government or any agency, department, division or unit thereof; and
any agency, commission or authority established pursuant to an
interstate compact or agreement.
(9) "Local distribution company" means any person, other than
any interstate pipeline or any intrastate pipeline, engaged in
transportation or local distribution of natural gas and the sale of
natural gas for ultimate consumption.
(10) "Natural gas transmission project" means any natural gas
pipeline and all facilities necessary or incident to the
transportation of natural gas to or for the benefit of industrial
or other end-users in West Virginia, the acquisition or
construction of which is financed, in whole or in part, by the West
Virginia public energy authority or the acquisition or construction
of which is financed, in whole or in part, from funds made
available by grant, loan or any other source by, or through, the
authority as provided in this article, including facilities, the
acquisition or construction of which is authorized, in whole or in
part, by the West Virginia public energy authority or the
acquisition or construction of which is financed, in whole or in
part, from funds made available by grant, loan or any other source
by, or through, the authority as provided in this article,
including all pipelines, buildings and facilities which the
authority deems necessary for the operation of the project,
together with all property, rights, easements and interests which
may be required for the operation of the project.
(11) "Owner" includes all persons having any title or interest
in any property rights, easements and interests authorized to be
acquired by this article.
(12) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; any federal or state
governmental agency; political subdivision; county commission;
municipality; industry; public service district; partnership;
trust; estate; person or individual; and group of persons or
individuals acting individually or as a group or any other legal
(13) "Pipeline" or "pipelines" means any actual lines of pipe
for the transmission and distribution of natural gas together with
all appurtenances, facilities, structures, equipment, machinery and
other items related to the transmission and distribution of gas
through lines of pipe.
(14) "Revenue" means any money or thing of value collected by,
or paid to, the West Virginia public energy authority as rents,
loan payments, installment payments, or other proceeds of sale,
rates, user fees, service charges or other charges for the electric
power produced by, for the use of, for the lease, the lease with an
option to purchase or the purchase of, or in connection with any
electric power project; or as rent, use, transportation or service
fee or charge for use of, or in connection with, any natural gas
transmission project; or other money or property from any source
which is received and may be expended for or pledged as revenues
pursuant to this article.
WVC 5 D- 1 - 4
§5D-1-4. West Virginia Public Energy Authority continued; West
Virginia Public Energy Board continued; organization
of authority and board; appointment of board members;
term, compensation and expenses; director of
(a) The West Virginia Public Energy Authority is continued.
The authority is a governmental instrumentality of the state and a
body corporate. The exercise by the authority of the powers
conferred by this article and the carrying out of its purposes and
duties are essential governmental functions and for a public
(b) The authority shall be controlled, managed and operated by
a seven-member board known as the West Virginia Public Energy
Authority Board, which is continued. The seven members include the
Director of the Division of Energy or designee; the Secretary of
the Department of Environmental Protection or designee; the
Director of the Economic Development Authority or designee; and
four members representing the general public. The public members
are appointed by the Governor, by and with the advice and consent
of the Senate, for terms of one, two, three and four years,
(c) On the thirtieth day of June, two thousand seven, the
terms of all appointed members shall expire. Not later than the
first day of July, two thousand seven, the Governor shall appoint
the public members required in subsection (b) of this section to assume the duties of the office immediately, pending the advice and
consent of the Senate.
(d) The successor of each appointed member is appointed for a
four-year term. A vacancy is filled by appointment by the Governor
in the same manner as the original appointment. A member appointed
to fill a vacancy serves for the remainder of the unexpired term.
Each board member serves until a successor is appointed.
(e) No more than three of the public members may at any one
time belong to the same political party. No more than two public
members may be employed by or associated with any industry the
authority is empowered to affect. One member shall be a person
with significant experience in the advocacy of environmental
protection. Board members may be reappointed to serve additional
(f) All members of the board shall be citizens of the state.
Before engaging in their duties, each member of the board shall
comply with the requirements of article one, chapter six of this
code and give bond in the sum of twenty-five thousand dollars in
the manner provided in article two of said chapter. The Governor
may remove any board member as provided in section four, article
six of said chapter.
(g) The Director of the Division of Energy shall serve as
chair. The board annually elects one of its members as vice chair
and appoints a secretary-treasurer who need not be a member of the
(h) Four members of the board constitute a quorum and the
affirmative vote of the majority of members present at any meeting
is necessary for any action taken by vote of the board. A vacancy
in the membership of the board does not impair the rights of a
quorum by such vote to exercise all the rights and perform all the
duties of the board and the authority.
(i) The person appointed as secretary-treasurer, including a
board member if so appointed, shall give bond in the sum of fifty
thousand dollars in the manner provided in article two, chapter six
of this code.
(j) Each public member shall be reimbursed for reasonable
expenses incurred in the discharge of official duties. All
expenses incurred by the board shall be paid in a manner consistent
with guidelines of the Travel Management Office of the Department
of Administration and are payable solely from funds of the
authority or from funds appropriated for such purpose by the
Legislature. Liability or obligation is not incurred by the
authority beyond the extent to which moneys are available from
funds of the authority or from such appropriations.
(k) In addition to such other duties and responsibilities as
may be prescribed in this code, the Director of the Division of
Energy is responsible for managing and administering the daily
functions of the authority and for performing all other functions
necessary to the effective operation of the authority.
WVC 5 D- 1 - 5
§5D-1-5. Powers, duties and responsibilities of authority
generally; termination of certain powers.
The West Virginia Public Energy Authority has and may exercise
all powers necessary or appropriate to execute its corporate
purpose. The authority may:
(1) Adopt, amend and repeal bylaws necessary and proper for
the regulation of its affairs and the conduct of its business and
rules to implement and make effective its powers and duties, such
rules to be promulgated in accordance with the provisions of
chapter twenty-nine-a of this code.
(2) Adopt and use an official seal and alter the same at
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be impleaded
in its own name, and particularly to enforce the obligations and
covenants made under this article. Any actions against the
authority shall be brought in the circuit court of Kanawha County.
(5) Foster, encourage and promote the mineral development
industry. The authority is encouraged to maximize the use of the
West Virginia mineral development industry, but is not prohibited
from utilizing nonstate mineral resources.
(6) Represent the state with respect to national initiatives
concerning the mineral development industry and international
marketing activities affecting the mineral development industry.
(7) Engage in strategic planning to enable the state to cope
with changes affecting or which may affect the mineral development
(8) Acquire, whether by purchase, construction, gift, lease,
lease-purchase or otherwise, any electric power project or natural
gas transmission project. In the event that an electric power
project to be constructed pursuant to this article is designed to
utilize coal wastes for the generation of electricity or the
production of other energy, such project shall also be capable of
using coal as its primary energy input: Provided, That it shall be
demonstrated to the authority's satisfaction that quantities of
coal wastes exist in amounts sufficient to provide energy input for
such project for the term of the bonds or notes issued by the
authority to finance the project and are accessible to the project.
(9) Lease, lease with an option by the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of, to
persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for
such rentals or amounts and upon such terms and conditions as the
Public Energy Authority Board may deem advisable.
(10) Finance one or more electric power projects or natural
gas transmission projects by making secured loans to persons other
than governmental agencies to provide funds for the acquisition, by
purchase, construction or otherwise, of any such project or
(11) Issue bonds for the purpose of financing the cost of
acquisition and construction of one or more electric power projects
or natural gas transmission projects or any additions, extensions
or improvements thereto which will be sold, leased with an option
by the lessee to purchase, leased or otherwise disposed of to
persons other than governmental agencies or for the purpose of
loaning the proceeds thereof to persons other than governmental
agencies for the acquisition and construction of said projects or
both. Such bonds shall be issued and the payment of such bonds
secured in the manner provided by the applicable provisions of
sections seven, eight, nine, ten, eleven, twelve, thirteen and
seventeen, article two-c, chapter thirteen of this code: Provided,
That the principal and interest on such bonds shall be payable out
of the revenues derived from the lease, lease with an option by the
lessee to purchase, sale or other disposition of or from loan
payments in connection with the electric power project or natural
gas transmission project for which the bonds are issued, or any
other revenue derived from such electric power project or natural
gas transmission project.
(12) In the event that the electric power project or natural
gas transmission project is to be owned by a governmental agency,
apply to the economic development authority for the issuance of
bonds payable solely from revenues as provided in article fifteen,
chapter thirty-one of this code: Provided, That the economic
development authority shall not issue any such bonds except by an act of general law: Provided, however, That the authority shall
require that in the construction of any such project, prevailing
wages shall be paid as part of a project specific agreement which
also takes into account terms and conditions contained in the West
Virginia - Ohio valley market retention and recovery agreement or
a comparable agreement.
(13) Acquire by gift or purchase, hold and dispose of real and
personal property in the exercise of its powers and the performance
of its duties as set forth in this article.
(14) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper, or
by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such real property or
parts thereof or rights therein, rights-of-way, property, rights,
easements and interests it deems necessary for carrying out the
provisions of this article and compensation shall be paid for
public or private lands so taken; and the authority may sell any of
the real property or parts thereof or rights therein,
rights-of-way, property, rights, easements and interests acquired
hereunder in such manner and upon such terms and conditions as the
authority deems proper: Provided, That if the authority determines
that land or an interest therein acquired by the authority through
the exercise of the power of eminent domain for the purpose of this
article is no longer necessary or useful for such purposes, and if
the authority desires to sell such land or interest therein, the authority shall first offer to sell such land or interest to the
owner or owners from whom it was acquired, at a price equal to its
fair market value: Provided, however, That if the prior owner or
owners shall decline to reacquire the land or interest therein, the
authority shall be authorized to dispose of such property by direct
sale, auction, or competitive bidding. In no case shall such land
or an interest therein acquired under this subdivision be sold for
less than its fair market value. This article does not authorize
the authority to take or disturb property or facilities belonging
to any public utility or to a common carrier, which property or
facilities are required for the proper and convenient operation of
such public utility or common carrier, except for the acquisition
of easements or rights-of-way which will not unreasonably interfere
with the operation of the property or facilities of such public
utility or common carrier, and in the event of the taking or
disturbance of property or facilities of public utility or common
carrier, provision shall be made for the restoration, relocation or
duplication of such property or facilities elsewhere at the sole
cost of the authority.
The term "real property" as used in this article is defined to
include lands, structures, franchises and interests in land,
including lands under water and riparian rights, and any and all
other things and rights usually included within the said term, and
includes also any and all interests in such property less than full
title, such as easements, rights-of-way, uses, leases, licenses and all other incorporeal hereditaments and every estate, interest or
right, legal or equitable, including terms for years and liens
thereon by way of judgments, mortgages or otherwise, and also all
claims for damages for such real estate.
For the purposes of this section, "fair market value" shall be
determined by an appraisal made by an independent person or firm
chosen by the authority. The appraisal shall be performed using
the principles contained in the "Uniform Appraisal Standards for
Federal Land Acquisitions" published under the auspices of the
Interagency Land Acquisition Conference, United States Government
Printing Office, 1972.
(15) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the performance
of its duties and the execution of its powers: Provided, That if
any electric power project or natural gas transmission project is
to be constructed by a person other than a governmental agency, and
with whom the authority has contracted to lease, sell or finance
such project upon its completion, then the authority shall not be
required to comply with the provisions of article twenty-two,
chapter five of this code requiring the solicitation of competitive
bids for the construction of such a project.
(16) Employ managers, superintendents and other employees, and
retain or contract with consulting engineers, financial
consultants, accountants, architects, attorneys, and such other
consultants and independent contractors as are necessary in its judgment to carry out the provisions of this article, and fix the
compensation or fees thereof. All expenses thereof shall be
payable solely from the proceeds of bonds issued by the economic
development authority, from the proceeds of bonds issued by or loan
payments, lease payments or other payments received by the
authority, from revenues and from funds appropriated for such
purpose by the Legislature.
(17) Receive and accept from any federal agency, or any other
source, grants for or in aid of the construction of any project or
for research and development with respect to electric power
projects, natural gas transmission projects or other energy
projects, and receive and accept aid or contribution 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 are made.
(18) Purchase property coverage and liability insurance for
any electric power project or natural gas transmission project or
other energy project and for the principal office and suboffices of
the authority, insurance protecting the authority and its officers
and employees against liability, if any, for damage to property or
injury to or death of persons arising from its operations and any
other insurance which may be provided for under a resolution
authorizing the issuance of bonds or in any trust agreement
securing the same.
(19) Charge, alter and collect transportation fees and other charges for the use or services of any natural gas transmission
project as provided in this article.
(20) Charge and collect fees or other charges from any energy
project undertaken as a result of this article.
(21) When the electric power project is owned and operated by
the authority, charge reasonable fees in connection with the making
and providing of electric power and the sale thereof to
corporations, states, municipalities or other entities in the
furtherance of the purposes of this article.
(22) Purchase and sell electricity or other energy produced by
an electric power project in and out of the state of West Virginia.
(23) Enter into wheeling contracts for the transmission of
electric power over the authority's or another party's lines.
(24) Make and enter into contracts for the construction of a
project facility and joint ownership with another utility and the
provisions of this article shall not constrain the authority from
participating as a joint partner therein.
(25) Make and enter into joint ownership agreements.
(26) Establish or increase reserves from moneys received or to
be received by the authority to secure or to pay the principal of
and interest on the bonds issued by the economic development
authority pursuant to the provisions of article fifteen, chapter
thirty-one of this code or bonds issued by the authority.
(27) Broker the purchase of natural gas for resale to
end-users: Provided, That whenever there are local distribution company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by
the Public Service Commission of West Virginia.
(28) Engage in market research, feasibility studies,
commercial research, and other studies and research pertaining to
electric power projects and natural gas transmission projects or
any other functions of the authority pursuant to this article.
(29) Enter upon any lands, waters and premises in the state
for the purpose of making surveys and examinations as it may deem
necessary or convenient for the purpose of this article, and such
entry shall not be deemed a trespass, nor shall an entry for such
purposes be deemed an entry under any condemnation proceedings
which may be then pending and the authority shall make
reimbursement for any actual damages resulting to such lands,
waters and premises as a result of such activities.
(30) Participate in any reorganization proceeding pending
pursuant to the United States Code (being the act of congress
establishing a uniform system of bankruptcy throughout the United
States, as amended) or any receivership proceeding in a state or
federal court for the reorganization or liquidation of a
responsible buyer or responsible tenant. The authority may file
its claim against any such responsible buyer or responsible tenant
in any of the foregoing proceedings, vote upon any question pending
therein, which requires the approval of the creditors participating
in any reorganization proceeding or receivership, exchange any evidence of such indebtedness for any property, security or
evidence of indebtedness offered as a part of the reorganization of
such responsible buyer or responsible tenant or of any entity
formed to acquire the assets thereof and may compromise or reduce
the amount of any indebtedness owing to it as a part of any such
(31) Make or enter into management contracts with a second
party or parties to operate any electric power project or any gas
transmission project and associated facilities, or other related
energy project, either during construction or permanent operation.
(32) Do all acts necessary and proper to carry out the powers
expressly granted to the authority in this article.
(33) Nothing herein shall be construed to permit the
transportation of gas produced outside of this state through a
natural gas transmission project.
(34) The authority shall, after consultation with other
agencies of state government having environmental regulatory
functions, promulgate legislative rules pursuant to chapter
twenty-nine-a of this code, to establish standards and principles
to be applied to all projects in assessing the effects of projects
on the environment: Provided, That when a proposed project
requires an environmental impact statement pursuant to the National
Environmental Policy Act of 1969, a copy of the environmental
impact statement shall be filed with the authority and be made
available prior to any final decision or final approval of any project and prior to the conducting of any public hearings
regarding the project, and in any such case, no assessment pursuant
to the legislative rule need be made.
§5D-1-5a. Publication of notice of certain meetings.
For all meetings of the board at which a bond issue of the
authority will be finally considered, and for all meetings of the
board at which the exercise of the right of eminent domain will be
finally considered, whether such meeting be a regular or special
meeting, the chairman shall cause a notice of said meeting to be
published as a class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area shall be each county in which the project is
located. In addition, notice in writing of such meeting shall be
given, by regular United States mail, to any person who shall have
previously made a request, in writing, to be so notified with
regard to a particular project.
§5D-1-5b. Public hearing before final consideration of bond issue
or exercise of right of eminent domain.
(a) Prior to any final decision of the board to take action
with respect to the issuance of revenue bonds or to authorize the
exercise of the right of eminent domain with respect to any
electric power or natural gas transmission project, the authority
(1) Prepare and reduce to writing the nature of the proposed
project, a summary of the data supporting the board's
determination and a description and location identification of the
proposed real property, right of way, or easement to be acquired.
The written statement under this section and the environmental
impact statement or assessment required pursuant to section five of
this article shall be available for public inspection at the office
of the county clerk at the county courthouse of each county in
which the project is located during the two successive weeks before
the date of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable
time and place within at least one county in which the project is
located to allow interested members of the public to attend the
hearing without undue hardship. Members of the public may be
present, submit statements and testimony and question the
authority's representative appointed pursuant to this section;
(3) Not less than thirty days prior to such public hearing,
provide notice to all members of the Legislature, unless otherwise notified by a member that such member does not desire such notice,
to the county commission of each county within which the project is
located and to the municipal council of each municipality in said
(4) Cause to be published a notice of the required public
hearing. The notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
each county in which the project is located. The public hearing
shall be held no earlier than the fourteenth successive day and no
later than the twenty-first successive day following the first
publication of the notice. The notice shall contain the time and
place of the public hearing along with a brief description of the
project and its proposed location;
(5) Cause a copy of the required notice to be posted at the
county seat of each county within which the project is located for
members of the public to observe. Such notice shall remain posted
for two successive weeks prior to the date of the public hearing;
(6) Appoint a representative of the authority who shall
conduct the required public hearing. The representative of the
authority shall make a report of the public hearing available for
inspection by the public or, upon written request of any interested
person, provide a written copy thereof and to all individuals
previously receiving written notice of the hearing within thirty
days following the public hearing; and
(7) The representative of the authority conducting the public
hearing shall make the results of the hearing available to the
board for its consideration prior to the board making decisions
regarding the proposed project.
(b) No final action of the board with respect to the issuance
of revenue bonds or authorizing the exercise of the right of
eminent domain with respect to a proposed project may be made
before the thirtieth successive day following the public hearing
required by this section, but in no event shall final action of the
board be made prior to fifteen days after the report of the public
hearings are made available to the public in general.
§5D-1-6. Authority may construct, finance, lease, sell, maintain,
etc., electric power projects and transmission
To accomplish the public policies and purposes and to meet the
responsibility of the state as set forth in this article, the West
Virginia public energy authority may initiate, acquire, construct,
maintain, lease, lease with an option for the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of,
repair and operate electric power generating projects and
transmission facilities, and may issue bonds for the purpose of
financing the cost of acquisition and construction of electric
power projects and transmission facilities which will be sold,
leased, leased with an option by the lessee to purchase or
otherwise disposed of to person other than governmental agencies or
for the purpose of loaning the proceeds thereof to persons other
than governmental agencies for the acquisition and construction of
said projects or both; or if the electric power project is to be
owned by a governmental agency request the issuance of bonds by the
economic development authority, payable solely from revenues, to
pay the cost or finance in whole or in part such projects:
Provided, That the economic development authority shall not be
authorized to issue any such bonds except by an act of general law,
as provided in article fifteen, chapter thirty-one of this code.
An electric power project shall not be undertaken unless it has
been determined by the authority that the project will be consistent with the purposes set out in this article. Any
resolution providing for acquiring or constructing such projects
shall include a finding by the authority that such determinations
have been made.
The authority is authorized and directed:
(1) To cooperate with the appropriate agencies and officials
of the United States government to the end that any electric power
project shall be so planned and constructed as to be adaptable to
the plans of the United States.
(2) To apply to the appropriate agencies and officials of the
United States government including the federal energy regulatory
commission for such licenses, permits or approval of its plans or
projects as it may deem necessary or advisable, and in its
discretion and upon such terms and conditions as it may deem
appropriate, to accept such licenses, permits or approvals as may
be tendered to it by such agencies or officials and such federal or
other public or governmental assistance as is now or may hereafter
become available to it; and to enter into contracts with such
agencies or officials relating to the construction or operation of
any project authorized by this article.
(3) To proceed with the physical construction or completion of
any project authorized by this article, including the erection of
the necessary power houses and other facilities, instrumentalities
and things necessary or convenient to that end, and including also
the erection of such transmission lines as may be necessary to conduct the electricity; and including also the acquisition or
construction of transmission lines or the use of such transmission
lines, available or which may be made available, to conduct
electricity to such point or points at which the electricity is
sold by the authority to any person, corporation or association,
public or private.
(4) To cooperate with and, when the board deems it feasible
and advisable, to enter into contractual arrangements with utility
(5) To purchase, when available, coal, natural gas or the
by-products of coal produced in this state as the fuel source for
all electric power projects.
§5D-1-7. Authority may construct, finance, maintain, etc.,
natural gas transmission projects and facilities.
To accomplish the public policies and purposes and to meet the
responsibility of the state as set forth in this article, the West
Virginia public energy authority may initiate, acquire, construct,
reconstruct, enlarge, maintain, repair, improve, furnish, equip,
lease or rent, and operate natural gas transmission projects at
such locations or areas within the state as may be determined by
the authority: Provided, That at least thirty days prior to
exercising any such power, the authority shall provide written
notice to any local natural gas distribution company or to any
company that transports natural gas in intrastate or interstate
commerce, which would experience a direct loss of sales to an end-
user presently served by such company as a result of such natural
gas transmission project. For purposes of this article, notice
shall be given either by personal delivery thereof to the affected
company to be so notified, or by depositing such notice in the
United States mail, postage prepaid, in an envelope addressed to
such affected company.
§5D-1-8. Annual report to governor and Legislature; audit.
The authority shall make an annual report, as soon as possible
after the close of each fiscal year, of its activities for the
preceding fiscal year to the governor and the Legislature. Each
such report shall set forth a complete operating and financial
statement covering the authority's operations during the preceding
fiscal year. The authority shall cause an audit of its books and
accounts to be made at least once each fiscal year by certified
public accountants and the cost thereof may be treated as a part of
the cost of financing, of construction or of operations of its
§5D-1-9. Expenses of authority.
From time to time the Legislature may appropriate funds to be
used for the purposes of this article. All expenses incurred in
carrying out the provisions of this article shall be payable solely
from funds of the authority or from funds appropriated to the
authority for such purpose by the Legislature. Such article does
not authorize the authority to incur indebtedness or liability on
behalf of or payable by the state.
§5D-1-10. Use of funds by authority; restrictions.
All moneys, properties and assets acquired by the authority,
bonds or as revenues or otherwise, shall be held by it in trust for
the purposes of carrying out its powers and duties, and shall be
used and reused in accordance with the purposes and provisions of
this article. Such moneys shall at no time be commingled with
other public funds.
§5D-1-11. Investment of funds by authority.
The authority is hereby authorized and empowered to invest any
funds not needed for immediate disbursement in any of the following
(1) (i) Direct obligations of or obligations guaranteed by the
United States of America; (ii) evidences of ownership of a
proportionate interest in specified direct obligations of, or
specific obligations the timely payment of the principal of and the
interest on which are unconditionally and fully guaranteed by, the
United States of America, which obligations are held by a bank or
trust company organized and existing under the law of the United
States of America or any state thereof in the capacity of custodian
and (iii) obligations, the sole source of the payment of the
principal of and interest on which are obligations of the nature of
those described in clause (i), which are irrevocably pledged for
(2) Bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies: Banks for
cooperatives; federal intermediate credit banks; federal home loan
bank system; Export-Import Bank of the United States; federal land
banks; the Federal National Mortgage Association or the Government
National Mortgage Association;
(3) Public housing bonds issued by public agencies or
municipalities and fully secured as to the payment of both
principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with the United States
of America; or temporary notes issued by public agencies or
municipalities or preliminary loan notes issued by public agencies
or municipalities, in each case, fully secured as to the payment of
both principal and interest by a requisition or payment agreement
with the United States of America;
(4) Certificates of deposit secure by obligations of the
United States of America;
(5) Direct obligations of or obligations guaranteed by the
state of West Virginia;
(6) Direct and general obligations of any other state within
the territorial United States, to the payment of the principal of
and interest on which the full faith and credit of such state is
pledged: Provided, That at the time of their purchase, such
obligations are rated in either of the two highest rating
categories by a nationally recognized bond-rating agency;
(7) Any fixed interest bond, note or debenture of any
corporations organized and operating within the United States:
Provided, That such corporation shall have a minimum net worth of
fifteen million dollars and its securities or its parent
corporation's securities are listed on one or more of the national
stock exchanges: Provided, however, That (i) such corporation has
earned a profit in eight of the preceding ten fiscal years as
reflected in its statements, and (ii) such corporation has not
defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal
years, and (iii) the bonds, notes or debentures of such corporation
to be purchases are rated "AA" or the equivalent thereof or better
than "AA" or the equivalent thereof by at least two or more
nationally recognized rating services such as Standard and Poor's,
Dunn & Bradstreet or Moody's; and
(8) Such other investments which at the time of the
acquisition thereof shall be listed as permissible investments of
trusted funds in an official statement, offering circular or
prospectus with respect to indebtedness which is rated by Moody's
or Standard & Poor's not less than the highest rating assigned by
such agencies to any series of bonds.
§5D-1-12. Maintenance, operation and repair of projects.
Each electric power project, each natural gas transmission
project or other energy project owned and operated by the
authority, when constructed and placed in operation, shall be
maintained and kept in good condition and repair by the authority.
Each such project owned and operated by the authority shall be
operated by such operating employees as the authority employs or
pursuant to a contract or lease with a governmental agency or
person. All public or private property damaged or destroyed in
carrying out the provisions of this article and in the exercise of
the powers granted hereunder with regard to any project shall be
restored or repaired and placed in its original condition, as
nearly as practicable, or adequate compensation made therefor out
of funds provided in accordance with the provisions of this
§5D-1-13. Bonds lawful investments.
The provisions of sections nine and ten, article six, chapter
twelve of this code to the contrary notwithstanding, all bonds
issued by either the West Virginia economic development authority
or the authority for the purposes of this article shall be lawful
investments for the West Virginia state board of investments and
shall also be lawful investments for banking institutions,
societies for savings, building and loan associations, savings and
loan associations, deposit guarantee associations, trust companies,
and insurance companies, including domestic for life and domestic
not for life insurance companies.
§5D-1-14. Exemption from taxation.
The exercise of the powers granted to the authority by this
article will be in all respects for the benefit of the people of
the state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their residential,
agricultural, recreational, economic, commercial and industrial
opportunities and is a public purpose. As the ownership, operation
and maintenance of natural gas transmission projects and electric
power projects and other energy projects owned and/or operated by
the authority will constitute the performance of essential
governmental functions, the authority shall not be required to pay
any taxes or assessments upon any such project or upon any property
acquired or used by the authority or upon the income therefrom.
Natural gas transmission projects and electric power projects and
other energy projects owned or leased by persons other than
governmental agencies shall be subject to any taxes or assessments
upon any such project or projects. Bonds issued by either the West
Virginia economic development authority or the authority and all
interest and income thereon shall be exempt from all taxation by
this state, or any county, municipality, political subdivision or
agency thereof, except inheritance taxes: Provided, That the
authority shall require a fee in substitution of any ad valorem tax
exemption to be negotiated by said authority.
§5D-1-15. Acquisition of property by authority -- Acquisition by
purchase, lease or eminent domain; governmental
agencies authorized to convey, etc., property; sale
of property by authority.
The authority may acquire by purchase, or otherwise, as
authorized by this article whenever it deems such acquisition
expedient, any land, property, rights, rights-of-way, franchises,
easements, leases and other interests in lands it deems necessary
or convenient for the construction and operation of any natural gas
transmission project, any electric power project, or other energy
All governmental agencies, notwithstanding any contrary
provision of law, may lease, lend, grant or convey to the
authority, at its request, upon such terms as the proper
authorities of such governmental agencies deem reasonable and fair,
any real property or interest therein, including improvements
thereto or personal property which is necessary or convenient to
the effectuation of the authorized purposes of the authority,
including public roads and other real property or interests
therein, including improvements thereto or personal property
already devoted to public use.
The authority may sell any land, property, rights,
rights-of-way, franchises, easements, leases and other interests in
land acquired under the provisions of this section in such manner
and upon such terms and conditions as it deems proper.
§5D-1-16. Authority not public utility and not subject to full
jurisdiction of public service commission; authority
subject to provisions concerning gas pipeline safety.
Notwithstanding anything contained in this article to the
contrary, and specifically notwithstanding any activities of the
authority which shall constitute a public service, the authority
shall not be considered or deemed a public utility in any respect
for purposes of chapter twenty-four of this code, and neither the
authority, nor any of its activities or the activities of its
agents or employees, nor any project constructed, maintained or
operated by the authority, nor any other matters pertaining to the
authority, shall be subject to the jurisdiction of the public
service commission of West Virginia, either with respect to the
powers of said public service commission generally, or with respect
to its power over rates, or otherwise: Provided, That the
authority and all natural gas transmission projects which it
constructs, maintains or operates shall nevertheless be subject to
the provisions of chapter twenty-four-b of this code concerning gas
§5D-1-17. Transportation of gas from natural gas transportation
projects by gas utility pipelines as common carriers.
In conjunction with any natural gas transportation project,
and for any other purpose in order to effectuate the policies and
intent of this article, the authority may petition the public
service commission, pursuant to section three-a, article three,
chapter twenty-four of this code, to authorize and require the
transportation of natural gas for the authority or for any end-user
or other person doing business with the authority, by intrastate
pipelines with unused or excess capacity not needed to meet its
contractual obligations, by interstate pipelines with unused or
excess capacity not needed to meet interstate commerce demands, or
by local distribution companies.
WVC 5 D- 1 - 18
§5D-1-18. Transportation fees and other revenues from natural
gas transmission projects owned by the authority.
This section shall apply to any natural gas transmission
project or projects which are owned by the authority. The
authority may charge, alter and collect transportation fees or
other charges for the use or services of any natural gas
transmission project, and fix the terms, conditions, transportation
fees or other charges for such use or services. Such
transportation fees or other charges shall not be subject to
supervision or regulation by any other authority, department,
commission, board, bureau or agency of the state, including
specifically the public service commission.
§5D-1-19. Financial interest in contracts prohibited; penalty.
No officer, member or employee of the authority shall be
financially interested, directly or indirectly, in any contract of
any person with the authority, or in the sale of any property, real
or personal, to or from the authority. This section does not apply
to contracts or purchases of property, real or personal, between
the authority and any governmental agency. If any officer, member
or employee of the authority has such financial interest in a
contract or sale of property prohibited hereby, he shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not
more than one thousand dollars, or imprisoned in the county jail
not more than one year, or both fined and imprisoned.
§5D-1-20. Personal liability of members or persons acting on
behalf of the authority.
(a) No director or any person acting on behalf of the
authority executing any contracts, comments or agreements issued
pursuant to this article shall be liable personally upon such
contracts, comments or agreements or be subject to any personal
liability or accountability by reason thereof; and
(b) No director or any person acting on behalf of the
authority shall be personally liable for damage or injury resulting
from the performance of his duties hereunder.
§5D-1-21. Meetings and records of authority to be kept public.
All meetings of the authority shall be open to the public and
the records of the authority shall be open to public inspection at
all reasonable times, except as otherwise provided in this section.
All final actions of the authority shall be journalized and such
journal shall also be open to the inspection of the public at all
reasonable times. Any records or information relating to secret
processes or secret methods of manufacture or production which may
be obtained by the authority or other persons acting under
authority of this article are confidential and shall not be
§5D-1-22. Liberal construction of article.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
If any section, part, provision, subsection, subpart,
subdivision, paragraph or subparagraph of this article or the
application thereof to any person or circumstance is held
unconstitutional or invalid, such unconstitutionality or invalidity
shall not affect any other section, part, provision, subsection,
subpart, subdivision, paragraph or subparagraph of this article or
its application or validity, and to this end the provisions of this
article are declared to be severable.
WVC 5 D- 1 - 24
Acts, 2010 Reg. Sess., Ch. 32.
Note: WV Code updated with legislation passed through the 2015 Regular Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.