Adopted Amendments to Part 649
Adopted Amendments to Part 649
6 NYCRR 649 NEW YORK STATE WATER POLLUTION CONTROL
REVOLVING FUND REGULATIONS
EXPRESS TERMS
Part 649 is amended to read as follows:
Section 649.1 Purpose, Scope and Applicability.
(a) The purpose of this Part is to provide rules and procedures for the New York State Department of Environmental Conservation (department), in conjunction with the New York State Environmental Facilities Corporation (corporation), to provide financial assistance to eligible recipients from the New York State Water Pollution Control Revolving Fund, also known as the Clean Water State Revolving Fund (CWSRF), created by Chapter 565 of the Laws of 1989, as amended.
(b) This Part, in conjunction with the applicable rules and regulations of the corporation, 21 NYCRR Part 2602, applies to all recipients seeking or receiving [CWSRF]financial assistance from the CWSRF and to the activities of the department in the discharge of its duties related to the CWSRF.
649.2 Definitions.
(a) Terms used in this Part or to be used in complying with this Part have the following meanings:
(1) Act means the Federal Water Pollution Control Act, also known as the Clean Water Act, 33 USC 1251 et seq., as amended[ and as may be amended].
(2) Additional subsidization means forgiveness of principal, a negative interest loan or a grant to be provided in accordance with the Act.
(3) Administrator means the administrator of the United States Environmental Protection Agency (EPA) or the chief executive officer of such agency or any successor agency or department or any authorized representatives of the administrator.
([3]4) Allocation means the amount of moneys of the CWSRF allocated in accordance with section 17-1909 (3) of the ECL, or other security or funds used to reduce a recipient's total financing costs for a project. [Allocation includes but is not limited to corpus allocation and reserve allocation. For the purposes of section 17-1909 of the ECL, an allocation shall be deemed to be a corpus allocation.]
([4]5) Allowable costs are all costs of a project which the corporation determines are properly allocable to that project in accordance with applicable laws and regulations, and are neither annual project operation costs, nor routine maintenance.
([5]6) Binding commitment means a legal obligation made pursuant to and subject to the terms of a project financing agreement (PFA) to provide CWSRF assistance to one or more recipients.
([6]7) Business day means any day on which New York State offices are open to conduct business.
([7]8) Commencement of construction means the date that:
(i) a notice to proceed is issued by the recipient to the contractor following the execution of the contract between the recipient and such contractor for the erection, building, acquisition, alteration, reconstruction, improvement, enlargement or extension of the project, or
(ii) in the event that the project will be built by recipient employees (force account) in lieu of a contractor, the first day that a work crew occupies the project, or
(iii) in the event that the project is a contract to purchase supplies, material or equipment, a binding purchase agreement is executed between the contracting parties and the recipient has provided evidence satisfactory to the corporation of the execution of such agreement, or
(iv) in the event that the project consists of the purchase of land, the closing date on which the first parcel is purchased by and title conveyed to the recipient, pursuant to and subject to the terms of a PFA, or
(v) at the election of the corporation, such other date as may be permitted by applicable law.
([8]9) Commissioner means the commissioner of the department.
([9]10) Completion of construction means the date that:
(i) the last major construction contract ends, as indicated in the notice to proceed, or if one is not given, the date calculated by adding the contract completion time, as specified in the executed contract between the recipient and the contractor, to the notice to proceed date, or the date construction was actually completed, if prior. The completion date may be extended by the recipient by an executed change order formally extending the contract completion date, or by written notice justifying the extension of time, or
(ii) in the event that the project was built by recipient employees (force account), the last day the work crew actually occupied the project, or
(iii) in the event that the project is a contract to purchase supplies, materials or equipment, the date on which the supplies, materials or equipment are delivered to the recipient and the warranty period, if any, begins, or
(iv) in the event that the project consists of the purchase of land, the closing date on which the last parcel is purchased by and title conveyed to the recipient, pursuant to and subject to the terms of a PFA.
([10]11) Comptroller means the comptroller of New York State.
([11]12) Construction means the erection, building, acquisition, alteration, reconstruction, improvement, enlargement or extension of a project, and all other actions necessary and consistent with the project.
([12]13) Contingency project is a project included in the intended use plan (IUP) below a funding line for which CWSRF assistance may be provided if funds become available.
([13]14) Corporation means the New York State Environmental Facilities Corporation.
([14]15) CWSRF assistance means any financial assistance provided from the CWSRF consistent with the requirements of applicable law, including "financial assistance to municipalities", as defined in section 1285-j(4) of the Public Authorities Law (PAL), including additional subsidization, and such other forms of assistance as permitted by the Act, in consultation with the director of the division of budget and the commissioner.
([15]16) Department means the Department of Environmental Conservation of New York State.
([16]17) Design includes, but is not limited to, necessary design calculations, selection of equipment and the preparation of construction drawings, specifications and contract documents.
([17]18) Direct financing means [loan or other ]financing made available from moneys [deposited ]in the CWSRF other than from proceeds of [Bonds as defined in the Amended and Restated Master Trust Agreement dated as of July 1, 2005, as amended and supplemented, by and between the corporation and Manufacturer's and Traders Trust Company, as trustee and custodian (Amended and Restated Master Trust Agreement)]the corporation's bonds or notes.
([18]19) Disbursement means a transfer of CWSRF assistance moneys to a recipient from accounts held by the corporation's custodian, as identified in the financing documents, in accordance with an executed PFA.
([19]20) ECL means Chapter 43-B of the Consolidated Laws of New York State, entitled the Environmental Conservation Law.
([20]21) Engineering report means the document or documents, which determines the technical and economic feasibility of a project. For purposes of land acquisition and related projects, engineering report means the land acquisition plan or the management plan prepared by the recipient in a form acceptable to the corporation. Such land acquisition plan or management plan must identify the relationship of each property to be acquired or purchased to the water quality protection or enhancement purposes identified in section 319 or 320 of the Act.
([21]22) Environmentally significant project (ESP) means a project that the commissioner has determined to be environmentally significant. In so designating an ESP, the commissioner shall consider all relevant factors, which shall include, but need not be limited to, an assessment of (i) public health and safety; (ii) protection of environmental resources; (iii) with respect to a municipality's project, population affected; (iv) attainment of State water quality goals and standards; and (v) compliance with State and Federal law, rules and regulations.
([22]23) Equivalency project means a treatment works project that must be constructed in compliance with the provisions of the Act applicable to projects funded from Federal capitalization funds or their equivalent.
([23]24) Equivalent dwelling unit means a system user that produces a wastewater flow (measured in gallons per day) and/or strength (measured in pounds per day of various pollutants) equivalent to a typical single-family residence, which serves as a means of proportioning system usage and costs.
([24]25) Estimated service charge means the total annual estimated cost of service to a household or equivalent dwelling unit in the area served by the project, which includes debt service and all other annualized charges.
([25]26) Facilities plan means a document that includes those elements required in an engineering report, and demonstrates that the mandatory planning requirements of Title II of the Act for equivalency projects have been met.
([26]27) Federal capitalization funds mean funds deposited in the CWSRF pursuant to a Federal capitalization grant according to the provisions of Title VI of the Act or other Federal assistance provided pursuant to any appropriation for the CWSRF.
([27]28) Financing means a loan, a purchase of debt obligations or other financing.
([28]29) Intended use plan (IUP) means a plan identifying the intended uses of the estimated amounts available in the CWSRF, including but not limited to: a list of potentially eligible projects; a description of the short-term and long-term goals and objectives of the CWSRF; information on the types of activities to be supported including a description of project categories, terms of CWSRF assistance, eligible recipients, and the criteria and method established for the distribution of funds. The IUP shall be published in accordance with the Act, and shall be subject to public review and comment.
([29]30) Innovative technology means developed wastewater treatment processes and techniques which have not been fully proven under the circumstances of their contemplated use and which represent a significant advancement over the state of the art in terms of significant reduction in life cycle cost or significant environmental benefits through the reclaiming and reuse of water, otherwise eliminating the discharge of pollutants, utilizing recycling techniques such as land treatment, more efficient use of energy and resources, improved or new methods of waste treatment management for combined municipal and industrial systems, or the confined disposal of pollutants so that they will not migrate to cause water or other environmental pollution.
([30]31) Interest rate subsidy means[: (i) for other than a direct financing, funds or other allocation] the amount of moneys of the fund credited to the recipient to reduce the interest which the recipient would otherwise be required to pay, [including investment earnings on a corpus allocation; or (ii) for a direct financing, the difference between the market rate of interest and the interest rate required to be paid by the recipient for CWSRF assistance]as determined by the corporation.
([31]32) Land acquisition means the purchase of land parcels consistent with the provisions of section 319 or 320 of the Act. Land acquisition includes but is not limited to the outright purchase of a fee simple interest in land or the purchase of a conservation easement.
([32]33) Land acquisition plan or management plan means the plan provided by the recipient, in a form acceptable to the corporation, detailing the land parcel(s) to be acquired or purchased and the corresponding water quality protection or enhancement purpose(s) achieved. The water quality protection or enhancement purposes are provided in section 319 or 320 of the Act, the New York State Nonpoint Source Management Plan or any EPA approved national estuary management plan.
([33]34) Leveraged financing means a [loan or other ]financing[ made from moneys deposited in], including those secured by the CWSRF, made with CWSRF assistance that [are]is made available through the issuance of [Bonds as defined in the Amended and Restated Master Trust Agreement]bonds or notes of the corporation, and shall not include any direct financing[, or any loan or other financing made available through the issuance of Subordinated Bonds as defined in such Amended and Restated Master Trust Agreement].
([34]35) Long-term financing means a[ loan or other]financing other than a short-term financing.
([35]36) Market rate of interest [is]means the interest rate obtained on the most recent sale of bonds or notes by the corporation for a CWSRF [pooled financing]leveraged financing or the interest rate determined by the corporation to be otherwise payable to reflect the current market conditions from time to time without the provision of any interest rate subsidy.
([36]37) Median household income (MHI) means the MHI published by the U.S. Department of Commerce Bureau of the Census, for which the most recent income data is available. For special districts and other areas for which accurate census data is not available, the corporation may consider other income data, including income surveys.
([37]38) Municipality means any county, city, town, village, district corporation, county or town improvement district, Indian reservation wholly within New York State, any public benefit corporation or public authority established pursuant to the laws of New York or any agency of New York State which is empowered to construct and operate a project, or any two or more of the foregoing which are acting jointly in connection with a project.
([38]39) Phased funding means an arrangement agreed to in a PFA by which a recipient proceeds with the construction of an entire project or project segment but receives a binding commitment sufficient to meet the cash flow needs for a project segment or a specific fiscal period rather than the cash flow needs for the entire project or segment.
([39]40) Planning means the orderly development of a project concept from the original statement of need or purpose through the evaluation of alternatives to a final recommendation on a course of action and measures to implement the selected alternative, including completion of the environmental review process.
([40]41) Pooled financing means the sale of bonds by the corporation to provide CWSRF assistance to two or more recipients.
([41]42) Project means any activity whose purpose and design is the preservation, protection and/or improvement of water quality, or which implements green infrastructure, water or energy efficiency improvements or other environmentally innovative activities, or other activities permitted by the Act, or which implements activities in an approved EPA national estuary management plan[ which would be], provided such activities are eligible for financing under the Act, for which all required Federal and State permits have been[ issued], or are expected to be, issued in connection with construction of the project, and which, for projects financed pursuant to section 212 of the Act, the commissioner has determined: (i) is in accordance with applicable comprehensive studies and reports made pursuant to sections 17-0303 and 17-1901 of the ECL; (ii) is necessary for the accomplishment of the State water pollution control program formulated pursuant to sections 17-0303 and 17-1901 of the ECL; (iii) represents a reasonable effort to develop economic viability in planning, design and construction; (iv) is a project which is eligible for CWSRF assistance; and (v) conforms with applicable laws, rules and regulations of the department and corporation. For projects financed pursuant to sections 319 and 320 of the Act, certain requirements need to be met, including but not limited to, the water quality benefit to be obtained from the project and its consistency with the New York State Nonpoint Source Management Plan, or how the project implements a recommended activity in the appropriate EPA approved national estuary management plan.
([42]43) Project financing agreement (PFA) means an agreement, or agreements, between the corporation and one or more recipients[. Such documents shall be in a form] with respect to the financing of an eligible project or projects or pre-design planning for such in such forms as may be approved by the corporation [and may include, but are not limited to a loan agreement, a project finance agreement, a project financing and loan agreement (PFLA), a bond purchase agreement, a lease agreement, a lease purchase agreement, an installment sales agreement, a guaranty agreement or a reimbursement agreement]from time to time.
([43]44) Project priority list (PPL) means a list of potentially eligible projects ranked in order of priority developed in accordance with section 649.3 of this Part, and the priority ranking system scoring criteria contained under section 649.12 of this Part, pursuant to section 17-1909(2) of the ECL.
([44]45) PAL means Chapter 43-A of the Consolidated Laws of New York State entitled the Public Authorities Law.
([45]46) Recipient means any municipality, or person, including but not limited to any individual, firm, partnership, association, school district, soil and water conservation district, not-for-profit corporation, or other corporation organized and existing under the laws of the State or any other state which is empowered to develop a project, or any two or more of the foregoing which are acting jointly in connection with a project.
([46]47) Reduced interest rate means an interest rate or rates less than the market rate of interest, including a rate of zero percent, as determined by the corporation from time to time.
([47]48) Segment of a project means one or more construction contracts and associated costs that the corporation determines constitute a discrete portion of the project which may be financed and constructed separately from other project segments.
(49) Short-term financing means a financing in which the security provided by the recipient is a short-term note including but not limited to a bond anticipation note.
[(48) Short-term financing mean [ny financing for a period of not more than three years.]
([49]50) SPDES permit means the New York State pollutant discharge elimination system permit issued in accordance with title 8 of article 17 of the ECL and regulations adopted pursuant thereto.
([50]51) State means the State of New York.
([51]52) State Act means Chapter 565 of the Laws of 1989, as amended and as may be amended.
([52]53) Target service charge means the amount, as determined by the corporation, that a household or equivalent dwelling unit having an income equal to the MHI for the area served by the project reasonably could pay annually. Criteria for the corporation's calculation of the target service charge shall be set forth in the annual IUP.
([53]54) Treatment works project means any type ofproject described in section 212(2) of the Act.
649.3 Priority Ranking and IUP.
(a) All projects known to the department or the corporation for which a recipient has expressed interest in CWSRF assistance shall be listed on the PPL in the IUP. Projects shall be ranked on the annual PPL in accordance with the criteria contained in the priority ranking system scoring criteria set forth under section 649.12 of this Part and the IUP.
(b) The commissioner shall prepare annually an IUP identifying the funds estimated to be available for binding commitments during the period covered by the IUP, the anticipated projects for which such binding commitments will be made, and those contingency projects for which binding commitments may be made if financing becomes available.
(c) Projects shall be listed in the IUP according to their rank on the PPL and within project categories. Project categories A through D relate solely to municipal projects. Categories A through C are determined solely by the number of people who reside within the municipality's jurisdiction based upon the latest census figures published by the United States Department of Commerce Bureau of the Census. Category D relates to municipal projects which are determined to be ESPs which qualify for a reduced interest rate direct financing because of financial hardship as determined under 21 NYCRR section [2602.4(c)(3).]2602.6. Category E relates solely to non-municipally owned projects. [ ]Category G relates to projects or portions thereof that address green infrastructure, including, without limitation, water and energy efficiency improvements, or other environmentally innovative activities. The project categories shall be:
(1) Category A - all municipalities where population is identified as 3,500 or less;
(2) Category B - all municipalities where population is identified as being 3,501 through 2,000,000; and
(3) Category C - all municipalities where population is identified as being more than 2,000,000.
(4) Category D - all projects for which the municipality has received a written confirmation from the corporation that it qualifies for a reduced interest rate direct financing because of financial hardship.
(5) Category E - all non-municipally owned projects which may be eligible for CWSRF assistance pursuant to the provisions of the Act and as stated in the IUP.
(6) Category F - Reserved.
(7) Category G - recipient projects or portions thereof which address green infrastructure, including, without limitation, water and energy efficiency improvements, or other environmentally innovative activities, or qualify as a demonstration project of new green infrastructure technology as provided in the IUP.
(d) Funds potentially available for CWSRF assistance shall be allocated to financing needs in the following order:
(1) Category D annual list projects.
(2) Category E annual list projects. The commissioner in consultation with the corporation shall determine a yearly allotment and a per project limit.
(3) Short-Term Funding Allotment. The commissioner in consultation with the corporation shall determine a yearly allotment and a per project limit.
(4) Category G annual list projects. The commissioner in consultation with the corporation shall determine a yearly allotment and a per project limit as set forth in the IUP.
(5) Categories A, B, and C annual list projects. After reserving funds for project costs set forth in categories D, E and [E]G, the remaining available funds shall be allocated to each of categories A, B and C by multiplying the amount of such remaining available funds by a fraction, the numerator of which is the sum of all project costs in such category and the denominator of which is the sum of all project costs in categories A, B and C. To the extent such remaining available funds exceed the need in each category, those funds will be made available for use as provided in section 649.3(d)([5]6) below.
([5]6) Any remaining funds will be made available upon consultation between the commissioner and the corporation for identified CWSRF needs.
(e) Based upon the presence of an imminent extreme health hazard, a recipient may request a change in project ranking such that the project will be ranked highest in its project category. Such requests shall be approved if supported by an order of the commissioner of the New York State Department of Health or a court of competent jurisdiction which:
(1) states that there is an imminent extreme health hazard; and
(2) determines that the project is essential to alleviate the hazard and is the only feasible means of doing so; and
(3) directs that the project proceed forthwith on a specified schedule irrespective of the availability of financial assistance from any source; or
(4) mandates the payment of substantial penalties for failure to achieve the various milestones set forth in the schedule.
(f) Contingency projects may receive CWSRF assistance if:
(1) project funding needs for higher scoring projects have been met within the project category.
(2) funds become available through bypassing of a project on the IUP, or funds become available for any other reason permitted under applicable law.
(g) The commissioner shall allocate funds and select projects to be listed in the annual IUP in compliance with the following requirements:
(1) Unless otherwise permitted by applicable law, eighty (80%) percent or more of Federal capitalization funds shall be allocated to projects for the construction of:
(i) secondary treatment or more stringent treatment facilities or any effective alternative thereto;
(ii) new interceptors and appurtenances; and
(iii)infiltration/inflow correction.
The balance of any Federal capitalization funds may be allocated to any other projects.
(2) In selecting projects within each category, the commissioner shall give consideration:
(i) first, to those projects receiving phased funding for which additional funds have been committed in an executed PFA;
(ii) second, to any other projects including short-term financing recipients, for which additional funds have been committed in an executed PFA; and
(iii) third, to other projects having a priority score on the PPL that equals or exceeds the score at the funding line for financings in the current year IUP.
(3) The commissioner shall, subject to the constraints of paragraphs (1) and (2) of this subdivision, seek to apportion to each region for ESPs in Categories A, B, C and D, no less than three percent of the CWSRF funds available Statewide. If three percent of the CWSRF funds available Statewide exceeds the aggregate total cost of such approvable ESP applications received from any region within six months of the effective date of an IUP, the excess shall be used for other ESPs listed in the IUP. For purposes of this paragraph, a region is any of the geographic areas of the State served by a regional office of the department, except that department regions 5 and 6 shall together be treated as a single region.
(h) In preparing the annual IUP and adopting the PPL the commissioner shall provide for public comment and review in accordance with applicable law.
(i) The IUP may provide for the financing of a project in segments or through phased funding [if: ]
[ (1) providing CWSRF assistance for the entire project would require a disproportionate share of the funds available in the fiscal period that the project is initially approvable for assistance; ]
[ (2) the project will require more than three years to complete; or ][ (3) the project must be phased or segmented]as necessary or desirable to meet program goals, including, without limitation, program or recipient cash flow, other recipient considerations, or to meet the requirements of a Federal or State court or administrative order.
(j) The corporation in its discretion, upon prior notice to the department, may bypass a project on the IUP upon written notice to the recipient if the [recipient fails to i) submit sufficient and relevant information or documents in accordance with application requirements; ii) comply with applicable requirements of a PFA; or iii) provide such other information relevant to the financing as required by the corporation upon notice thereof]project schedule and timing indicates that funding will not be effectively used in the IUP period, or that the recipient will not be able to satisfy any other condition precedent to obtaining funding, during the period specified in the IUP.
649.4 Direct Financings.
(a) The corporation may or, if so directed by the commissioner, shall provide CWSRF assistance for a project pursuant to PAL section 1285-j(4) if and to the extent the corporation may determine that it is unable, or that it is impracticable to finance all or a portion of a project as a leveraged financing.
(b) The corporation may provide[ a short-term financing as] a direct financing at a reduced interest rate to an ESP only if:
(1) the project is listed on the IUP's multi-year PPL, and it has received a project priority score high enough to place it above any funding line on the IUP's Annual PPL, except as otherwise permitted by the Act,
(2) except as otherwise permitted herein, project planning has been completed and the recipient has submitted an approved engineering report,
(3) the environmental review process has been completed,
(4) any necessary special improvement districts have been formed, and,
(5) construction of the project has not been completed.
(c) Interest rates for direct financings shall be [established as follows: ][ (1) The]determined by the corporation as an interest rate [for a short-term financing shall not exceed two-thirds of the market rate of interest and shall be published in the IUP.][ (2) Notwithstanding a reduced interest rate financing as defined in section 649.2(a)(46), the interest rate for a long-term direct financing to a recipient shall be the rate as may be set forth in the State Act or the IUP for the financing period, but in no event greater than two-thirds of]or rates no higher than the market rate of interest.
[ (3) ]The corporation may [make a reduced interest rate direct financing to a municipality]provide hardship assistance in those cases where the corporation, in its discretion, determines financial hardship exists. [Financial hardship shall be determined to exist if] In making such determination, the corporation may consider whether the total estimated annual service charge for a household or equivalent dwelling unit in the area served by the project[ service area], calculated using the maximum interest rate applicable to the project, [as specified in the State Act or the IUP, ]exceeds the target service charge. The [applicable reduced interest rate is that which brings the estimated service charge closest to the target service charge. The corporation may also consider other conditions deemed relevant to adjust the interest rate if such adjustment is necessary to reflect actual financial needs (or lack thereof). Reduced interest rate direct financings may be provided to municipalities only for wastewater treatment projects serving residential areas and as provided in 21 NYCRR 2602.4.]provisions relating to hardship assistance shall be published annually in the IUP.
(d) A recipient shall not receive CWSRF assistance if the corporation determines that such recipient cannot be reasonably expected to meet its repayment obligations under the applicable PFA.
649.5 Innovative Projects.
The corporation may enter into PFAs with up to three municipalities to receive interest-free financings for the construction of innovative technology demonstration wastewater treatment facilities. No such financing shall exceed three million dollars. The three projects selected shall be those that the commissioner in his discretion determines best demonstrate use of an innovative technology that has been proven reasonably effective on at least a demonstration model basis.
649.6 Financing of Planning and Design Costs.
(a) CWSRF assistance [shall not]may be provided for project planning costs prior to completion of that planning. Planning costs may also be included as allowable costs for purposes of CWSRF assistance for any subsequent portion of [that]the project.
(b) CWSRF assistance may be provided for project design costs prior to the initiation of such design.
649.7 General Project Requirements.
The corporation shall require each recipient of CWSRF financing to agree to the following, as applicable:
(a) [Recipients shall ensure that all projects receiving CWSRF assistance]The corporation shall require each recipient to effectively preserve, protect and/or improve water quality, employ good management practices, and fulfill all applicable requirements of: Federal and State laws, regulations, and executive orders, [the applicable]including without limitation, prevailing wage requirements under Article 8 of the Labor Law, all requirements of the PFA, and all applicable instructions issued by the commissioner or the corporation to ensure that these requirements are met.
(b) The corporation or the department may conduct such reviews, inspections and investigations as they determine necessary to ensure that applicable Federal and State requirements are fulfilled, and that the terms, requirements, and conditions of the PFA are being met.
(c) The corporation or the department may accept recipient certification that project requirements have been met where such certifications are permitted by State laws or regulations. Acceptance of a certification that a project requirement was met shall not preclude the corporation and the department from carrying out selective sampling and verification of such certification.
(d) All contracts between the recipient and parties carrying out construction and other CWSRF assisted activities shall provide that representatives of the commissioner, the comptroller, and the corporation shall have access to the work wherever it is in preparation or progress and shall permit extracts and copies of project records to be made by them.
(e) All change orders for which a disbursement is being requested shall be submitted to the corporation for review and approval for eligibility prior to such disbursement being made. Proposed changes that will significantly alter the project or any treatment process incorporated therein shall require prior approval by the department or the corporation.
(f) The recipient shall provide competent and adequate inspection of project construction, as may be required by the corporation in the PFA, under the direction of a professional engineer licensed in New York State who shall be responsible for determining whether such work has been performed in accordance with the approved plans and specifications. Following project completion, the professional engineer shall certify to the recipient, the commissioner, and the corporation that project construction was completed in accordance with the approved plans and specifications or approved amendments thereto.
(g) The recipient shall have, or acquire, such title, estate or interest in the site of the project, including necessary easements and rights-of-way, to ensure undisturbed use and possession during construction, and for the term of its CWSRF obligation under the PFA.
(h) The recipient, all authorized representatives of the recipient, and all contractors and subcontractors providing services for the project shall comply with all Federal and State laws, regulations, and executive orders applicable to the project including, but not limited to, affirmative action, equal employment opportunity, and small, minority and women's business enterprises. The recipient shall include in all contracts or subcontracts financed with CWSRF assistance that the commissioner determines are subject to article 15-A of the Executive Law, contract provisions determined necessary by the commissioner for purposes of complying with article 15-A of the Executive Law and any regulations adopted pursuant thereto.
(i) The department shall conduct an independent environmental review of all CWSRF projects. The recipient shall provide the department with any documents needed by the department to complete its review.
(j) The recipient is solely responsible for the preparation of engineering reports, facilities plans, design drawings, plans and specifications, contract documents, and the inspection of the project necessary for the completion of the project. Despite any review or approval of engineering reports, facilities plans, design drawings, plans and specifications, contract documents, change orders, or the inspection of the project by the department, or the corporation, neither the department nor the corporation, nor their employees, agents or representatives, are responsible for increased costs resulting from defective engineering reports, facilities plans, design drawings, plans and specifications, change orders, or negligent inspection of the project.
(k) The recipient shall take any corrective action necessary to bring a project into compliance with the project performance standards contained in the approved engineering report or facilities plan for the project or, if applicable, with the SPDES permit. The recipient may receive CWSRF assistance, to the extent such assistance is available, for corrective action, where such action is not required due to fraud, mismanagement or failure to comply with requirements set forth in a PFA.
(l) Certain treatment works projects designated by the commissioner shall be equivalency projects required to comply with the provisions of section 649.8 of this Part. Projects to be designated will be those projects that can meet the additional requirements under section 649.8 of this Part most readily.
(m) When the CWSRF assistance for projects meeting equivalency project requirements equals or exceeds the Federal capitalization funds available to New York State, treatment works projects approved for CWSRF assistance following that determination shall be exempted from the equivalency project requirements.
(n) The corporation is authorized to provide CWSRF financing for land acquisition consistent with the provisions of sections 319 and 320 of the Act. Land acquisition includes, but is not limited to the outright purchase of a fee simple interest in land, or the purchase of conservation easements.
649.8 Equivalency Project Requirements.
(a) Equivalency Projects shall comply with section 649.7 of this Part, as well as with all of the requirements of this section.
(b) Prior to making formal application for CWSRF assistance for construction of an equivalency project, a recipient must submit a facilities plan which:
(1) includes those elements required in an engineering report;
(2) demonstrates that those mandatory planning requirements of title II of the Act for equivalency projects have been met; and
(3) incorporates any other requirements of the commissioner. The facilities plan shall replace the requirements of the engineering report.
(c) In preparing the facilities plan, the recipient shall comply with and incorporate all of the requirements of the Act.
(d) In carrying out the project design, construction, and other project activities, the recipient shall comply with the requirements of the Act as they are described in the approved facilities plan and shall also comply with applicable provisions of the Act, including sections 204(d)(2) and 513.
(e) The recipient shall adopt a user charge system that apportions the operation, maintenance, and replacement costs of the project to the users according to the provisions of the Act.
(f) Equivalency projects shall comply with those Federal requirements identified by the administrator as applicable to equivalency projects.
649.9 Application and Project Financing Agreements (PFA).
(a) Applications for CWSRF assistance shall be submitted in accordance with the provisions set forth in the IUP, in a format that is consistent with instructions published by the corporation including, at the corporation's discretion, the use of forms published by the corporation for use by parties seeking CWSRF assistance. An applicant may submit an application to the corporation for CWSRF assistance for projects for pre-design planning costs as set forth in the IUP.
An applicant may submit an application to the corporation for CWSRF assistance for projects beyond the pre-design planning stage when project planning is completed and the applicant has submitted a facilities plan for an equivalency project or an engineering report, if required, for the project, and the corporation or the department is in the process of reviewing or has approved that report or plan.
[(a) A] (b) For projects beyond the pre-design planning stage, a PFA shall not be executed[ for a project] until a completed application for CWSRF assistance for that project has been submitted by the recipient to, and approved by, the corporation. A complete application shall include:
(1) formation and approval of any necessary special improvement districts;
(2) satisfaction of all environmental review requirements; and
(3) any other documentation relevant in evaluating an application for CWSRF assistance.
[(b) A recipient may submit an application to the corporation for CWSRF assistance][ when project planning is completed and the ][recipient][ has submitted a facilities plan for an equivalency project or an engineering report, if required, for the project, and the corporation or the department][ has approved that report or plan.]
(c) A PFA for a portion of a project other than pre-design planning (a phase, a segment, or a design) shall include a schedule for the completion of the entire project and an agreement by the recipient to complete the entire project in accordance with such project completion schedule regardless of the availability of future CWSRF assistance.
649.10 Disbursements.
(a) The recipient shall make disbursement requests to the corporation on forms provided by, or acceptable to, the corporation, in accordance with any instructions issued by, and together with any documentation of costs required by, the corporation. Copies of the disbursement request shall be submitted simultaneously to any other party named in the PFA.
(b) The corporation may at any time review [and]or audit disbursement requests and make adjustments for, among other things, arithmetical errors, items not built or bought[ or], unallowable or unapproved costs, or any other reasons as set forth in the PFA, and may refuse to certify advances or payments to a recipient based thereon. The corporation may recover any such funds from the recipient that it determines after any review or audit should not have been released under the PFA or applicable law.
(c) No disbursement shall be made without the approval of the corporation based upon its review and audit of disbursement requests as provided in section 649.10(b) of this Part.
(d) The corporation may transfer the full amount or any part of the CWSRF assistance to a project account established for that purpose.
(e) Satisfactory documentation supporting CWSRF disbursement requests shall demonstrate that the costs claimed were those approved in the PFA, that they are allowable costs and, where appropriate, that the goods or services for which the costs were incurred have been provided. Satisfactory documentation may include, but is not limited to, the following:
(1) signed copies of the payment vouchers or invoices, cancelled checks, details of current indirect cost and fringe benefit rates, copies of all sub agreements, executed construction contracts, change orders, payroll records, tabulations of allowable costs incurred to date;
(2) for construction, the latest cumulative work-in-place estimate and a summary of executed change orders for each construction contract;
(3) for professional services, a description of the nature of the service, and documentation that the service was provided according to the terms of a professional services agreement;
(4) for purchase of equipment not included in a construction contract, a detailed list of equipment purchased, price of each item, and the method and details of the procurement of each item and, where applicable, the origin of its manufacture;
(5) for project services approved in a PFA to be provided by employees of the recipient, employee time records, signed by the employee and the employee's supervisor, which account for all hours worked in the period covered, and describe in detail the work claimed as approvable; and
(6) for acquisition of land, copies of the executed contracts of sale and/or conservation easements, appraisals, title reports and, when appropriate, the closing statement and recorded deed or conservation easements.
All documentation for a project shall be incorporated and referenced in project accounts maintained by the recipient in accordance with generally accepted government accounting standards or, in the case of non-governmental recipients, with the provisions of the applicable federal regulations and PFA.
649.11 Remedies.
(a) If a recipient has received CWSRF assistance for work which is not an allowable cost of a project, the recipient may be required to reimburse the CWSRF for the amount of misapplied CWSRF assistance received (reimbursed amounts may be applied to allowable project costs or to bond redemption) and until the full amount of such misapplied CWSRF assistance has been reimbursed, the corporation may apply any interest rate subsidy to such reimbursement or [reduce any future interest rate subsidy]recoup any other benefit provided to the recipient, or reduce any future interest rate subsidy or such other benefit, or reduce any future interest rate subsidy or such other benefit for future CWSRF assistance for purposes of reimbursing the CWSRF in addition to any other remedy permitted pursuant to this section, the PFA, or by law.
(b) If the department or the corporation determines that the project is not in compliance with Federal or State laws or the terms of the applicable PFA, and following due written notice to the recipient, the project or recipient is not brought into compliance, the corporation may (i) withdraw the interest rate subsidy, recoup any other benefit provided to the recipient, or reduce any future interest rate subsidy or such other benefit, or reduce any future interest rate subsidy or such other benefit for future CWSRF assistance, (ii) refuse to approve CWSRF disbursement requests and (iii) refuse execution of subsequent PFAs until the project or recipient is brought into compliance.
(c) Nothing in this section shall be construed to limit the rights of the department or the corporation to take action including, but not limited to, administrative enforcement actions and actions for breach of contract against a recipient that fails to carry out its obligations under this Part, the PFA, or any other applicable State or Federal law, rule or regulation.
649.12 Priority Ranking System Scoring Criteria.
The numerical scores in the priority ranking system for project categories A, B, C, D and E are based on the following criteria:
A. Existing Source.
B. Water Quality Improvement.
C. Consistency With Management Plans.
D. Intergovernmental Needs.
E. Financial Need (municipal projects only)
F. Economic Need.
The total numerical score for the project being scored shall be the sum of the scores for criteria A, B, C, D, E and F for municipal projects and criteria A, B, C, D and F for non-municipal projects. Project category G projects will be selected based upon criteria set forth in the IUP.
The project score will be based on information in an approvable facilities plan or engineering report. Projects without approvable facilities plans or engineering reports will be scored based on information from other sources and adjusted when a facilities plan or engineering report is determined to be approvable. Projects must be adequately supported by technical documentation, data, reports, etc.
A. Existing Source Criterion
The project receives a score based on whichever of the factors (1-5) listed below best describes the source of pollution associated with the impairment of use scored under criterion B which may be resolved by the project.
| Factor | Points |
|---|---|
| 1. A critical source of pollution a. A raw, partially treated or intermittent point or nonpoint source causing or significantly contributing to a priority water problem which has been identified on Priority Waterbodies List (PWL) as "precluded" or "impaired" or is resulting in documented use impairment of surface and/or groundwater quality equivalent to "precluded" or "impaired", or b. A source from which bioaccumulative chemicals of concern (BCCs) would be reduced or eliminated. | 50 |
| 2. A significant source of pollution 25A raw, partially treated or intermittent point or nonpoint source causing or significantly contributing to a priority water problem which has been identified on Priority Waterbodies List (PWL) as "stressed" or "threatened" or causing a documented use impairment of surface and/or groundwater quality equivalent to "stressed" or "threatened". | 25 |
| 3. A potential source of pollution a. A point or nonpoint source causing or significantly contributing to a water use impairment that is not identified on the Priority Waterbodies List (PWL) nor causing a documented use impairment or surface water or groundwater quality, or b. A point or nonpoint source project necessary to maintain or protect existing facilities, conditions or water quality. | 10 |
| 4. Other A point or nonpoint source project that was necessary to preserve, protect and/or improve surface and/or groundwater quality from a source of pollution identified in 1, 2, or 3 above and which construction was complete as defined in section 649.2(a)(9) of this Part prior to being listed in a final IUP. | 5 |
| 5. None of the above. | 0 |
B. Water Quality Improvement Criterion (WQIC)
The WQIC is determined by the following three factors: 1) Classification Points Factor (CPF); 2) Impairment Factor (IF); and 3) Potential Improvement Factor (PIF). Based on the existing source identified for criterion A, points are allotted to a project on the basis of the State-assigned classification of the receiving water at the point of discharge, or where higher, the classification of downstream surface waters, the use of which is impacted or potentially impacted by the existing discharge. The points are modified depending upon the severity of impairment of the desired best usage of the receiving water and the potential for the proposed project to improve water quality.
The WQIC is calculated using the following equation: WQIC = CPF x IF x PIF
1. Classification Points Factor (CPF)
Points are allotted to a project on the basis of the State-assigned classification of the receiving water at the point of discharge, or where higher, the classification of downstream surface waters, the use of which is impacted or potentially impacted by the existing discharge.
| Classification | Description | Points |
|---|---|---|
| AA,SA,GA (primary water supply aquifer), AA special | Specially protected high quality drinking water and shellfish. | 8 |
| A,A special, GA (other), GSA | Other drinking water. | 6 |
| B, SB, C (T)1, C (TS) | Contact recreation, trout and trout propagation. | 4 |
| C2, SC, I | Other fishing. | 3 |
| D, SD, GSB | Other water uses. | 2 |
| Impairment of resources which have important environmental quality impacts such as odor, sludge disposal, sewer maintenance equipment, etc. or for a project which received a score under Existing Source Criterion, Factor 4. | 1 | |
| No resource is impaired. | 0 |
2. Impairment Factor (IF)
Points are allotted to a project based on the severity of impairment of the desired best usage of the affected surface water or groundwater caused by the existing discharge, as indicated in the Priority Waterbodies List (PWL), or verifiable documentation of the surface water and/or groundwater impairment.
| Impairment | Definition | Points |
|---|---|---|
| Precluded | A use is not possible (i.e., frequent/persistent water quality or quantity conditions prevents all aspects of the waterbody use). | 6 |
| Impaired | A use cannot be fully met (i.e., occasional water quality or quantity conditions periodically prevent or discourage the use of the waterbody). | 4 |
| Stressed | A water quality problem is evident, but impairment is not clearly demonstrated (i.e., waterbody uses are not significantly limited or restricted, but occasional water quality or quantity conditions periodically discourage the use of the waterbody). | 2 |
| Threatened or None | There is a threat to future water quality but no existing evidence of impairment (i.e., water quality currently supports waterbody uses, however, existing or changed land use patterns may result in restricted use) or if a project maintained or protected water quality and was complete as defined in section 649.2(a)(9) of this Part prior to being listed in a final IUP. | 1 |
3. Potential Improvement Factor (PIF)
Points are allotted to the project based on the potential for the project to improve water quality.
| Factor | Points |
|---|---|
| 1. Degree of impairment reduced by three levels (i.e., from "Precluded" to "Threatened or None"). | 4 |
| 2. Degree of impairment reduced by two levels (i.e., from "Precluded" to "Stressed" or from "Impaired" to "Threatened or None"). | 3 |
| 3. Degree of impairment reduced by one level (i.e., from "Precluded" to "Impaired", from "Impaired" to "Stressed", or from "Stressed" to "Threatened or None"). | 2 |
| 4. No reduction in impairment level. | 1 |
C. Consistency With Management Plan Criterion
| Factor | Points |
|---|---|
| 1. A project that:(a) significantly addresses the highest priority water quality problem or solution identified in one of the following management plans: Peconic Estuary CCMP, South Shore Estuary Reserve CMP, Long Island Sound CCMP, New York/New Jersey Harbor CCMP, Hudson River Estuary Plan, Lake Champlain Management Plan, Onondaga Lake Plan, or Great Lakes Program, or(b) is a land acquisition project whose primary purpose is to protect water quality, and that has been included as a priority in the most recent State Open Space Conservation Plan prepared pursuant to article 49-0207 of the ECL. | 15 |
| 2. A project that:(a) significantly addresses the secondary or priority water quality problem or solution identified in one of the following management plans: Peconic Estuary CCMP, South Shore Estuary Reserve CMP, Long Island Sound CCMP, New York/New Jersey Harbor CCMP, Hudson River Estuary Plan, Lake Champlain Management Plan, Onondaga Lake Plan, or Great Lakes Program, or(b) is a land acquisition project whose secondary purpose is to protect water quality, and that has been included as a priority in the most recent State Open Space Conservation Plan prepared pursuant to article 49-0207 of the ECL. | 10 |
| 3. A project which is consistent with water quality policies or recommendations in the New York State Nonpoint Source Management Plan, the State's Open Space Conservation Plan or in a DEC approved watershed management plan. | 5 |
| 4. None of the above. | 0 |
Points may be allocated under C.1, C.2, C.3 or C.4.
D. Intergovernmental Needs Criterion
1. Intergovernmental Needs
| Factor | Points |
|---|---|
| a. A project to abate water pollution which is required by an executed enforcement instrument or required by a SPDES permit to be undertaken. | 25 |
| b. A project that will maintain or protect the integrity of existing wastewater treatment facilities to insure continued SPDES compliance. | 10 |
| c. A land acquisition project that is identified as a high priority for acquisition in the most recent State Open Space Conservation Plan prepared pursuant to Article 49-0207 of the ECL. | 5 |
| d. None of the above. | 0 |
Points may be allocated under either D.1.a, D.1.b, D.1.c or D.1.d.
2. Construction Start
| Factor | Points |
|---|---|
| A project that has commenced construction as defined in section 649.2(a)(7) of this Part. | 5 |
E. Financial Need Criterion (municipal projects only)
| Factor [ ] | Points |
|---|---|
| If a project receives points under A - Existing Source Criterion and B - Water Quality Improvement Criterion, or D.1.a - Enforcement Status Criterion and the Median Household Income (MHI) of the recipient in which the project service area is located is below the Statewide MHI, the project receives 10 points for financial need. | 10 |
The MHI of the recipient in which the project service area is located and the Statewide MHI will be determined from income data in the most recent United States census. If there is reason to believe that the census data are not an accurate representation of the MHI within the area to be served, the reasons must be documented and the applicant will furnish, or the department may obtain, additional information regarding the MHI. Information will consist of reliable data from local, regional, State or Federal sources or from an income survey.
F. Economic Need Criterion
| Factor [ ] | Points |
|---|---|
| 1. If a project receives points under A - Existing Source Criterion and B - Water Quality Improvement Criterion, or D.1.a - Enforcement Status Criterion, and the project is located in or serving an Empire Zone, the project receives 10 points for economic need. | 10 |
| 2. If a land acquisition project has received a commitment for purchase by State as part of its most recent Open Space Conservation Plan prepared pursuant to article 49-0207 of the ECL, the project receives 5 points for economic need. | 5 |
G. Green Infrastructure, Water or Energy Efficiency, Environmentally Innovative Activities [RESERVED]
H. Tie Breaking
For municipal projects, in the event of equal total scores, preference shall be given: first to the project having the highest Existing Source Criterion score; then, if not resolved, to the project receiving the highest Water Quality Improvement Criterion score; and finally, if not resolved, to the project serving the greatest population.
For non-municipal projects, in the event of equal total scores, preference shall be given: first to the project having the highest Existing Source Criterion score; then, if not resolved, to the project receiving the highest Water Quality Improvement Criterion score.
649.13 Miscellaneous.
(a) The corporation is authorized to take any corrective actions required by the administrator under the provisions of section 605 of the Act if, in the judgment of the department or the corporation such corrective actions are required by applicable law.
649.14 Material Incorporated By Reference.
(a) The following documents referenced in this Part are available for review and copying at the New York State Environmental Facilities Corporation, 625 Broadway, Albany, New York 12207-2997.
(1) Federal Water Pollution Control Act, also known as the Clean Water Act, 33 USC 1251 et seq., as amended from time to time.
(2) Title 40 Code of Federal Regulations (CFR), part 35, section 2005.
(3) Chapter 75, title 31, United States Code (31 USC section 7501 et seq. enacted by Public Law 98-502, the Single Audit Act of 1984), as it may be amended.
(4) Title 40 of the CFR, part 35, subpart K (sections 35.3100 through 35.3170 & Appendix A) as amended and revised.
(5) Title 21 of the Official Compilation of Codes Rules and Regulations of the State of New York, part 2602.
(b) All United States publications referenced above are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C., 20402.
649.15 Severability.
If any provisions of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons or circumstances.
1 (T) and (TS) indicate the application of standards to protect trout and trout spawning, respectively.
2 Classification C without (T) or (TS) appended.
