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STATE OF WYOMING Working Draft
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DRAFT ONLY
NOT APPROVED FOR
INTRODUCTION
HOUSE BILL NO.
Impact assistance payments-maximum percentages and review.
Sponsored by: Joint Minerals, Business & Economic Development Interim Committee
A BILL
for
1 AN ACT relating to industrial development and siting;
2 specifying that the industrial siting council may increase
3 the impact assistance payments of specified projects beyond
4 the maximum allowable percentages; requiring approval of
5 increases; specifying that approvals are not subject to
6 judicial review; making conforming amendments; specifying
7 applicability; and providing for an effective date.
8
9 Be It Enacted by the Legislature of the State of Wyoming:
10
11 Section 1. W.S. 35-12-105(c), 39-15-111(c), (d)(intro)
12 and by creating a new subsection (r) and 39-16-111(d),
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1 (e)(intro) and by creating a new subsection (p) are amended
2 to read:
3
4 35-12-105. Appointment and duties of administrator;
5 staff; rules and regulations.
6
7 (c) The director, administrator and the staff of the
8 division are authorized to the extent possible, at the
9 request of local governments, to provide technical
10 assistance to local governments in the preparation of
11 anticipated impacts related to a proposed project
12 consistent with W.S. 39-15-111(c), and (d) and (r) and 39-
13 16-111(d), and (e) and (p) and negotiation of agreements
14 with applicants as provided for in W.S. 35-12-107.
15
16 39-15-111. Distribution.
17
18 (c) If any person commences after the effective date
19 of this act to construct an industrial facility, as that
20 term is defined in W.S. 35-12-102, under a permit issued
21 pursuant to W.S. 35-12-106, or if the federal or state
22 government commences to construct any project within this
23 state with an estimated construction cost as specified in
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1 the definition of industrial facility in W.S. 35-12-102 the
2 department of revenue shall thereafter pay to the county
3 treasurer and the county treasurer will distribute to the
4 county, cities and towns of that county in which the
5 industrial facility or project is located, impact
6 assistance payments from the monies available under
7 paragraph (b)(i) of this section. Each payment to the
8 county treasurer shall be equal to an amount determined by
9 the industrial siting council under this subsection and
10 shall continue during the period of construction except
11 that in the case of an industrial facility or a federal or
12 state government project which is expected to continue in
13 phases for an indefinite period of time, the department of
14 revenue shall discontinue payments under this section when
15 construction of any phase has ceased or been substantially
16 completed for twelve (12) consecutive months. The person
17 constructing the industrial facility and the counties
18 affected by the construction of the industrial facility
19 shall provide evidence at the public hearing held pursuant
20 to W.S. 35-12-110(f)(i) of the mitigated and unmitigated
21 impacts that the construction will have on the counties,
22 cities and towns determined by the industrial siting
23 council to be affected by the construction of the
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1 industrial facility. The industrial siting council shall
2 review the evidence of the impacts and determine, applying
3 a preponderance of evidence standard, the dollar amount of
4 the unmitigated impacts. The council shall state, in the
5 order issued under W.S. 35-12-113(a), the total dollar
6 amount of the impact assistance payment and include
7 specific findings of fact detailing the basis for the total
8 dollar amount determination and if requested by the
9 affected county, city or town, its justification for
10 rejecting, in whole or in part, an application for an
11 impact assistance payment. The impact assistance payment
12 shall be distributed by the department of revenue in an
13 amount and on a schedule determined by the council, based
14 on evidence presented at the hearing. Under no
15 circumstances shall the total dollar amount of the impact
16 assistance payment exceed the maximum allowable percentage
17 specified in this subsection of the total estimated
18 material costs of the facility, as those costs are
19 determined by the council. The maximum allowable percentage
20 shall be two and twenty-five hundredths percent (2.25%) for
21 facilities with total estimated materials costs of three
22 hundred fifty million dollars ($350,000,000.00) or less
23 except as otherwise provided in this subsection, two
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1 percent (2%) for facilities with total estimated materials
2 costs in excess of three hundred fifty million dollars
3 ($350,000,000.00) but less than eight hundred fifty million
4 dollars ($850,000,000.00) and one and one-half percent
5 (1.50%) for facilities with total estimated materials costs
6 of eight hundred fifty million dollars ($850,000,000.00) or
7 more. For facilities with total estimated materials costs
8 of three hundred fifty million dollars ($350,000,000.00) or
9 less, the council may increase the maximum allowable
10 percentage to not more than two and seventy-six hundredths
11 percent (2.76%) if the council includes in the specific
12 findings required under this subsection that the maximum
13 allowable percentage of two and twenty-five hundredths
14 percent (2.25%) is insufficient to mitigate the identified
15 impacts. For facilities with total estimated materials
16 costs exceeding three hundred fifty million dollars
17 ($350,000,000.00), the council may increase the maximum
18 allowable percentage to not more than two and seventy-six
19 hundredths percent (2.76%) in accordance with subsection
20 (r) of this section. The council shall submit a report to
21 the joint appropriations committee and the joint minerals,
22 business and economic development interim committee not
23 later than ten (10) business days after increasing the
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1 maximum allowable percentage as specified in this
2 subsection, including data to support the increase. The
3 impact assistance payments shall be distributed to the
4 county treasurer and the county treasurer will distribute
5 to the county and to the cities and towns therein based on
6 a ratio established by the industrial siting council during
7 a public hearing held in accordance with W.S. 35-12-
8 110(f)(i). In determining the distribution ratio, the
9 industrial siting council may consider the extent and
10 location of the unmitigated impacts, the populations of the
11 affected counties, cities and towns, including any
12 disproportionate impacts on smaller communities, and any
13 other equitable factor. The industrial siting council shall
14 review the distribution ratio for construction projects on
15 a regular basis and make appropriate adjustments. A
16 governing body which is primarily affected by the facility,
17 or any person issued a permit pursuant to W.S. 35-12-106,
18 may petition the industrial siting council for review and
19 adjustment of the distribution ratio or the amount of the
20 impact assistance payment upon a showing of good cause. The
21 impact assistance payment shall be in addition to all other
22 distributions under this section, but no impact assistance
23 payment shall be made for any period in which the county or
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1 counties are not imposing at least a one percent (1%) tax
2 authorized by W.S. 39-15-204(a)(i) and 39-16-204(a)(i) or
3 at least a total of a two percent (2%) sales tax authorized
4 under W.S. 39-15-204(a)(i), (iii) and (vi) and at least a
5 total of a two percent (2%) use tax authorized under W.S.
6 39-16-204(a)(i), (ii) and (v). For purposes of this
7 subsection, the industrial facility or federal or state
8 government project will be deemed to be located in the
9 county in which a majority of the construction costs will
10 be expended, provided that upon a request from the county
11 commissioners of any adjoining county to the industrial
12 siting council, the council may determine that the social
13 and economic impacts from construction of the industrial
14 facility or federal or state government project upon the
15 adjoining county are significant and establish the ratio of
16 impacts between the counties and certify that ratio to the
17 department of revenue who will thereafter distribute the
18 impact assistance payment to the counties pursuant to that
19 ratio. Each county, city and town that receives a
20 distribution under this subsection shall provide an annual
21 report to the industrial siting council describing how the
22 impact assistance payment was expended. The report shall
23 first be submitted not later than one (1) year after the
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1 impact assistance payment is approved and annually each
2 year thereafter for the duration in which distributions are
3 made and until all distributions are expended. The
4 industrial siting council shall adopt rules as necessary to
5 implement this subsection.
6
7 (d) As used in subsection subsections (c) and (r) of
8 this section:
9
10 (r) For industrial facilities for which the total
11 estimated materials cost exceeds three hundred fifty
12 million dollars ($350,000,000.00), the industrial siting
13 council may increase the maximum allowable percentage of
14 any impact assistance payment to not more than two and
15 seventy-six hundredths percent (2.76%) in accordance with
16 the following:
17
18 (i) The council shall include in the specific
19 findings required under subsection (c) of this section that
20 the maximum allowable percentage, as applicable, for the
21 industrial facility is insufficient to mitigate the
22 identified impacts;
23
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1 (ii) Upon making the findings required in
2 paragraph (i) of this subsection, the council shall forward
3 the proposed percentage increase, the permit order or
4 decision and, if requested by the board, the record of the
5 hearing, to the state loan and investment board. The board
6 shall not accept or consider any new evidence in its
7 consideration under this paragraph. Not later than the next
8 regularly scheduled board meeting after receiving a
9 proposed percentage increase for an impact assistance
10 payment, the state loan and investment board shall consider
11 the council's proposed percentage increase and shall:
12
13 (A) Approve the proposed percentage
14 increase;
15
16 (B) Deny the proposed percentage increase;
17 or
18
19 (C) Modify the proposed percentage increase
20 to any percentage between the maximum allowable percentage
21 as specified under subsection (c) of this section and two
22 and seventy-six hundredths percent (2.76%).
23
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1 (iii) The council shall authorize that payments
2 made under subsection (c) of this section be made at a
3 percentage not to exceed the applicable maximum allowable
4 percentage specified in subsection (c) of this section
5 while the proposed percentage increase is pending before
6 the state loan and investment board;
7
8 (iv) If the state loan and investment board
9 approves or modifies the proposed percentage increase under
10 paragraph (ii) of this subsection and upon direction by the
11 council, the department shall make payments in an amount
12 sufficient to make the payments equal to the amount
13 necessary to make the impact assistance payment's increased
14 percentage retroactive to the beginning of the period of
15 construction;
16
17 (v) The decision of the state loan and investment
18 board to approve, deny or modify a proposed percentage
19 increase under paragraph (ii) of this subsection is final
20 and shall not be subject to further review by the
21 industrial siting council or subject to any judicial
22 review. Nothing in this paragraph shall be construed to
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1 abrogate any other right of review specified in the
2 Industrial Development Information and Siting Act.
3
4 39-16-111. Distribution.
5
6 (d) If any person commences after the effective date
7 of this act to construct an industrial facility, as that
8 term is defined in W.S. 35-12-102, under a permit issued
9 pursuant to W.S. 35-12-106, or if the federal or state
10 government commences to construct any project within this
11 state with an estimated construction cost as specified in
12 the definition of industrial facility in W.S. 35-12-102 the
13 department of revenue shall thereafter pay to the county
14 treasurer and the county treasurer will distribute to the
15 county, cities and towns of that county in which the
16 industrial facility or project is located, impact
17 assistance payments from the monies available under
18 paragraph (b)(i) of this section. Each payment to the
19 county treasurer shall be equal to an amount determined by
20 the industrial siting council under this subsection and
21 shall continue during the period of construction except
22 that in the case of an industrial facility or a federal or
23 state government project which is expected to continue in