Chapter 5B. Economic Development Act Of 1985


Published: 2015

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WEST VIRGINIA CODE











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WVC 5B-

CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

WVC 5 B- 2 G-

ARTICLE 2G. LAND CONSERVATION.



WVC 5 B- 2 G- 1

§5B-2G-1. Short title.

This article shall be known as the Voluntary Rural and Outdoor

Heritage Conservation Act.







WVC 5 B- 2 G- 2

§5B-2G-2. Legislative findings and purpose.

Legislative findings and purpose:

(a) The Legislature hereby finds and declares that:

(1) The State of West Virginia's rural character, natural

wonders, scenic beauty and recreational opportunities combine to

create an exceptional quality of life for its citizens;

(2) West Virginia's landscapes serve as an economic engine

supporting vibrant forest products, agricultural, hunting and

fishing and tourism industries;

(3) West Virginia's unique and important lands are key to

attracting new businesses and knowledge workers who are mobile and

capable of doing business anywhere and critical to diversifying the

economy of the State of West Virginia;

(4) West Virginia's unique and important lands provide all

West Virginians hunting, fishing, rafting, hiking and other

recreational opportunities important to their health and

well-being;

(5) West Virginia's unique and important lands are critical to

the continued health of the state's wildlife habitats and West

Virginia's Wildlife Conservation Action Plan, mandated by the

United States Congress, recognizes that habitat loss is a key issue

confronting conservation of the state's valuable fish and wildlife

resources;

(6) The conversion of rural land to developed land in West

Virginia doubled between 1982 and 1997;

(7) There is a critical need to invest in the conservation of

unique and important wildlife habitat, natural areas, forest lands,

farmland and lands for hunting, fishing and recreation; and

(8) It is critical to encourage cooperation and innovative

public partnerships among landowners, state agencies, nonprofit

organizations and others which must work together in order to

conserve West Virginia's most important unique and rural lands.

(b) It is the intent of the Legislature to provide persons and

other entities an opportunity to voluntarily conserve land.

(c) Further, it is the intent of the Legislature to establish

a West Virginia Outdoor Heritage Conservation Fund, hereinafter

"fund", to establish an ongoing funding source to conserve unique

and important wildlife habitat, natural areas, forests, working

lands, lands for hunting, fishing and recreation and other lands

important to West Virginians.

(d) The Legislature finds that an ongoing funding source to

conserve unique and important lands will help to ensure that

present and future generations of West Virginians are able to enjoy

the economic, quality of life, health, recreational, scenic and

other benefits of conserved lands.







WVC 5 B- 2 G- 3

§5B-2G-3. West Virginia Outdoor Heritage Conservation Fund -

Established.

The West Virginia Outdoor Heritage Conservation Fund is

established within the Department of Commerce. The fund has the

powers and duties provided in this article.







WVC 5 B- 2 G- 4

§5B-2G-4. West Virginia Outdoor Heritage Conservation Fund - Board

of trustees.

(a) Composition; chairman; quorum; qualifications. -- The fund

shall be governed and administered by a board of trustees composed

of the Director of the Division of Natural Resources and the

Director of the Division of Forestry, who shall serve as voting ex

officio members, and nine voting members to be appointed by the

Governor, by and with the advice and consent of the Senate. The ex

officio members may appoint designees to serve on the board of

trustees. One of the appointed members shall be a representative

of the West Virginia Agricultural Land Protection Authority; one of

the appointed members shall be a registered forester; three of the

appointed members shall be representatives of independent IRC

501(c)(3) land trusts; two of the appointed members shall be

recognized professional experts in biology or ecology nominated by

the West Virginia Academy of Sciences; one of the appointed members

shall have demonstrated expertise in public health or public

recreation; and one of the appointed members shall be a

representative of sportsmen and sportswomen. A concerted effort

shall be made to appoint members who represent a cross-section of

the state.

The board shall elect the chair and other officers as

necessary from among the nine appointed members. A majority of the

members of the board serving at any one time constitutes a quorum

for the transaction of business.

If any of the entities to be represented on the board under

this section ceases to exist, the Governor shall appoint a

representative with similar expertise from an entity with a similar

mission.

(b) Terms. --

(1) The Governor, with the advice and consent of the Senate,

shall appoint the nine members for the following terms:

(A) Three for a term of four years;

(B) Three for a term of three years; and

(C) Three for a term of two years.

(2) Successors to appointed members whose terms expire shall

be appointed for terms of four years. Vacancies shall be filled

for the unexpired term. An appointed member may not serve more

than two successive terms. Appointment to fill a vacancy may not

be considered as one of two terms.

(c) Oath. --

Appointed members shall take the oath of office as prescribed

by law.

(d) Recusal. --

A board member shall recuse himself or herself from any vote

in which he or she has a conflict of interest. The provisions of

this subsection is in addition to any other provisions of law or

applicable rules relating to the ethics of public officers or

employees.

(e) Compensation and expenses. --

Members shall not receive compensation. Each member of the

board shall receive expense reimbursement from the fund for actual

reasonable and necessary expenses incurred while engaged in the

discharge of official duties, the actual expenses not to exceed the

amount paid for similar reimbursement to members of the

Legislature.







WVC 5 B- 2 G- 5

§5B-2G-5. West Virginia Outdoor Heritage Conservation Fund -

Powers.

The board has the following general powers on behalf of the

fund:

(a) Power to sue. -- To sue and be sued in contractual matters

in its own name.

(b) Power to contract. -- To enter into contracts generally

and to execute all instruments necessary or appropriate to carry

out its purposes.

(c) Power to conserve land. -- To acquire interests in real

property for conservation purposes.

(d) Power to transfer. -- To transfer interests in real

property for conservation purposes.

(e) Power to disburse grants. -- To act as a granting

authority to award grants to eligible grant recipients in

accordance with section nine of this article.

(f) Power to seek funding. -- To apply for and receive funding

from any and all state, federal and private sources to be used as

provided in this chapter.

(g) Power to authorize bond issuance. -- To direct the

Economic Development Authority to issue revenue bonds payable from

the portion of the recording fee imposed in section ten, article

one, chapter fifty-nine of this code to be allocated to the fund

and any other special revenue made against to the fund for this

purpose in accordance with section eight of this article or other provisions of this code.







WVC 5 B- 2 G- 6

§5B-2G-6. West Virginia Outdoor Heritage Conservation Fund -

Duties.

The board shall, on behalf of the fund:

(a) Disseminate information regarding land conservation and

promote the conservation of land.

(b) Develop and implement additional guidelines and

procedures, consistent with the purposes of this chapter, as

necessary to implement this chapter.

(c) Seek and apply for funds from federal, state and private

sources to carry out its purpose as provided in this chapter.

(d) From moneys received from the recording fee in accordance

with section ten, article one, chapter fifty-nine of this code, to:

(1) Make available to the West Virginia Division of Natural

Resources fifty percent of the moneys so received by the fund, for

the division to acquire interests in real property for conservation

purposes in perpetuity in keeping with the West Virginia Wildlife

Conservation Action Plan or other conservation plans developed by

the division, provided that the board approves any acquisitions.

The division may agree to permit the fund to retain any or all of

this fifty percent to remain in the fund to be used as payment of

debt service and other costs associated with revenue bonds on the

fund's behalf by the Economic Development Authority in accordance

with the provisions of this article;

(2) Ensure that the remaining fifty percent of the moneys so

received by the fund are used for competitive grants in accordance with this article or used as payment of debt service and other

costs associated with revenue bonds on the fund's behalf by the

Economic Development Authority in accordance with the provisions of

this article, the proceeds of which shall also be used for

competitive grants.

(e) Prepare and file electronically with the Governor's office

and with the Legislature by the thirty-first day of August of each

year a report that accounts for fund receipts and disbursals and

sets forth a list and description of all grants approved and all

acquisitions of interests in real property obtained with moneys

from the fund during the current year, including the recipients of

the grants, the amounts and the public benefits of the interests in

real property acquired.

(f) Propose legislative rules in accordance with the

provisions of article three, chapter twenty-nine-a of this code to

carry out its purposes and programs, to include specifically the

qualifications and procedures relating to its awarding of grants.







WVC 5 B- 2 G- 7

§5B-2G-7. Definitions.

For purposes of this article, the following terms have the

meanings set forth in this section.

(a) "Board" means the board of trustees established in section

three of this article.

(b) "Conservation easement" means a nonpossessory interest in

real property as defined in section three, article twelve, chapter

twenty of this code, except that a conservation easement acquired

pursuant to this article shall be held in perpetuity.

(c) "Conservation purposes" means the conservation of land for

outdoor recreation by the public, for conservation of natural plant

and wildlife habitat or similar ecosystem, for conservation of

forestland and other open spaces, for conservation of land of

historical or cultural significance or as further defined under

conservation criteria developed in this article.

(d) "Eligible grant recipient" means:

(1) The following state agencies:

(A) Division of Natural Resources;

(B) Division of Forestry; or

(2) A charitable corporation, charitable association or

charitable trust registered with the Secretary of State and exempt

from taxation pursuant to Section 501(c)(3) of the Internal Revenue

Code of 1986 [Public Law 99-514, 26 U.S.C. §501(c)(3)] or other

federal or state statutes or rules, the purposes or powers of which

include retaining or protecting the natural, scenic, agricultural or open-space values of real property; assuring the availability of

real property for agricultural, forest, recreational or open-space

use; protecting natural resources and wildlife; maintaining or

enhancing land, air or water quality; or preserving the historical,

architectural, archaeological or cultural aspects of real property,

as defined in section three, article twelve, chapter twenty of this

code, and that has a primary part of its mission to acquire

interests in real property for conservation purposes.

(e) "Fund" means the West Virginia Outdoor Heritage

Conservation Fund established in this article.

(f) "Land conservation" means acquisition of interests in real

property from willing sellers for conservation purposes.

(g) "Stewardship" means the necessary monitoring, maintenance

and enforcement of interests in real property for conservation

purposes.







WVC 5 B- 2 G- 8

§5B-2G-8. Funding of land conservation; issuance of revenue bonds.

(a) Fund. --

(1) Created. -- The West Virginia Outdoor Heritage

Conservation Fund is created for the purposes specified in this

article.

(2) Sources. -- The West Virginia Outdoor Heritage

Conservation Fund is comprised of:

(A) Any money made available to the fund by general or special

fund appropriations;

(B) Any money made available to the fund by grants or

transfers from governmental or private sources;

(C) Any money realized by investments, interest, dividends or

distributions; and

(D) Any money received from the issuance of revenue bonds in

accordance with the provisions of this article; and

(3) Disbursements. -- The Treasurer may not disburse any money

from the fund other than:

(A) For costs associated with the staffing, administration and

technical and legal duties of the fund;

(B) For reasonable and necessary expenses incurred by the

members of the board of trustees of the fund in the performance of

official duties;

(C) For costs associated with the acquisition of interests in

real property for conservation purposes and for costs associated

with stewardship authorized by this article;

(D) For grants to be awarded in accordance with section nine

of this article;

(E) For payment of debt service and other costs associated

with revenue bonds issued on the fund's behalf by the Economic

Development Authority; and

(F) Of revenue received, directly or indirectly, from the

recording fee under section ten, article one, chapter fifty-nine of

this code and not used for the payment of revenue bonds and

expenses associated therewith, for purposes consistent with the

duties of the fund set forth in this article.

(4) Money remaining at end of fiscal year. -- Any money

remaining in the fund at the end of a fiscal year shall not revert

to the General Revenue Fund of the state, but shall remain in the

fund to be used for the purposes specified in this article.

(5) Budget. -- The estimated budget of the fund for the next

fiscal year shall be included with the budget of the West Virginia

Department of Commerce.

(6) Audit. -- The fund shall be audited annually.

(b) Bonds. --

The Legislature finds and declares that in order to attract

new business, commerce and industry to this state, to retain

existing business and industry providing the citizens of this state

with economic security and to advance the business prosperity of

this state and the economic welfare of the citizens of this state,

it is necessary to provide public financial support for land conservation as provided in this article.

(1) The West Virginia Economic Development Authority created

and provided in article fifteen, chapter thirty-one of this code

shall, by resolution, in accordance with the provisions of this

article and article fifteen, chapter thirty-one of this code and

upon direction of the board of the Outdoor Heritage Conservation

Fund, issue revenue bonds of the Economic Development Authority to

pay for all or a portion of the cost of the acquisition of

interests in real property for conservation purposes authorized

under this article or to refund the bonds at the discretion of the

fund. The revenue bonds shall mature at a time or times not

exceeding thirty years from their respective dates. The principal

of, and the interest and redemption premium, if any, on the bonds

shall be payable from the moneys deposited in the fund pursuant to

section ten, article one, chapter fifty-nine of this code or from

other sources identified by the board of the fund.

(2) There is established in the State Treasury a special

revenue fund named the Outdoor Heritage Conservation Fund into

which shall be deposited on and after the first day of July, two

thousand eight, the amounts to be deposited in the fund as

specified in this article. The Outdoor Heritage Conservation Fund

shall consist of all such moneys, all appropriations to the fund,

all interest earned from investment of the fund and any gifts,

grants or contributions received by the fund. All amounts

deposited in the fund pursuant to section ten, article one, chapter fifty-nine of this code shall be pledged to the repayment of the

principal, interest and redemption premium, if any, on any revenue

bonds or refunding revenue bonds authorized by this section,

including any and all commercially customary and reasonable costs

and expenses which may be incurred in connection with the issuance,

refunding, redemption or defeasance thereof. The West Virginia

Economic Development Authority may further provide in the

resolution and in the trust agreement for priorities on the

revenues paid into the Outdoor Heritage Conservation Fund pursuant

to section ten, article one, chapter fifty-nine of this code as may

be necessary for the protection of the prior rights of the holders

of bonds issued at different times under the provisions of this

section. The bonds issued pursuant to this subsection shall be

separate from all other bonds which may be or have been issued from

time to time under the provisions of this article.

(3) Bonds issued under this subsection shall state on their

face that the bonds do not constitute a debt of the State of West

Virginia; that payment of the bonds, interest and charges thereon

cannot become an obligation of the State of West Virginia; and that

the bondholders' remedies are limited in all respects to the

special revenue fund established in this subsection for the

liquidation of the bonds.

(4) The West Virginia Economic Development Authority shall

expend the bond proceeds from the revenue bond issues authorized

and directed by this section for projects as certified by the board of the fund under the provisions of this article as serving a

public purpose and meeting the criteria established by this

article.

(5) If any proceeds from sale of bonds remain after paying

costs and making grants as provided in this subsection, the surplus

may be used as elsewhere provided in this article.







WVC 5 B- 2 G- 9

§5B-2G-9. Grants for land conservation; application; criteria.

(a) An eligible grant recipient may apply for a grant from the

fund to acquire interests in real property for conservation

purposes or for stewardship. An application may not be submitted

to the fund without the written consent of the owner of the

interest in real property identified in the application.

(b) Before applying for a grant, the eligible grant recipient

shall notify the owner that is the subject of the grant of the

following in writing:

(1) That interests in real property acquired with a grant from

the fund result in a permanent conveyance of such interests in real

property from the owner to the eligible grant recipient or its

assigns; and

(2) That it may be in the owner's interest to retain

independent legal counsel, appraisals and other professional

advice.

The application shall contain an affirmation that the notice

requirement of this subsection has been met.

(c) Grants from the fund shall be awarded based upon the

conservation criteria and financial criteria contained in this

section. In each application, the eligible grant recipient shall

provide information regarding how the proposal meets one or more of

these criteria and advances the purposes of this article.

(d) For purposes of this article, conservation criteria

include:

(1) Unique or important wildlife habitat as specified in the

State Wildlife Conservation Action Plan;

(2) Habitat for rare, threatened or endangered species;

(3) A relatively undisturbed or outstanding example of an

ecosystem or natural community indigenous to West Virginia;

(4) An important area for public hunting, fishing or other

outdoor recreational uses;

(5) Important recreation lands or important habitats

identified in county comprehensive plans;

(6) Riparian habitats, wetlands, water quality, watersheds of

significant ecological value or critical aquifer recharge areas;

(7) Forest land or working land that has strategic economic

significance;

(8) A larger area containing conserved lands or as a

connection between conserved lands;

(9) Land of unique cultural, historical or archaeological

significance;

(10) Degree of threat to land; and

(11) The number of acres of land to be conserved.

(e) For purposes of this article, financial criteria include:

(1) The degree to which the proposal leverages grants from the

fund by including funding or in-kind assets or services from other

governmental sources; and

(2) The degree to which the proposal leverages grants from the

fund by including funding or in-kind assets or services from private or nonprofit sources or charitable donations, including

bargain sales of interests in real property for conservation

purposes;

(f) The board of the fund shall evaluate each proposal

according to the conservation criteria and financial criteria set

forth in this section, and shall award grants on the basis of how

well proposals meet these two criteria.

(g) If an eligible grant recipient entity is dissolved or

ceases to exist as an entity, or if any interests in real property

obtained with a grant from the fund are not being utilized strictly

for conservation purposes, the real property interest shall vest in

the fund upon recording of a notice signed by the chair of the fund

and filed with the clerk of the appropriate county and the fund may

transfer the interest to an appropriate eligible grant recipient.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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