N.Y. Comp. Codes R. & Regs. tit. 21 § 2604.2

Current through Register Vol. 46, No. 50, December 11, 2024

Section 2604.2 - Definitions

(a) Unless defined herein, terms used in this Part shall have the meaning set forth under section 1281 of the Public Authorities Law (PAL), and/or the Public Health Law (PHL). Terms used in this Part or to be used in complying with this Part have the following meanings.

(1) Act means title XIV of the Public Health Service Act (commonly known as the Safe Drinking Water Act), 42 U.S.C. §§ 300 f et seq., as amended, and as amended by the American Recovery and Reinvestment Act of 2009, P.L. 111-5 (ARRA).

(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 or the chief executive officer of such agency or any successor agency or department or any authorized representatives of the administrator.

(4) Ad valorem tax means a tax based upon the value of real property.

(5) Allocation means the amount of moneys of the DWSRF allocated in accordance with section 1162 of the PHL, or other security or funds used to reduce a recipient's total financing costs for an eligible project.

(6) Allowable costs means all costs of an eligible project which the corporation determines are:

(i) properly allocable to that project in accordance with applicable laws and regulations; and

(ii) not annual facility operation costs, including but not limited to, those for maintenance, or replacement and repair of minor equipment.

(7) Business day means any day on which New York State offices are open to conduct business.

(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.

(iv) at the election of the corporation, such other date as may be permitted by applicable law.

(9) Commissioner means the commissioner of the New York State Department of Health.

(10) Comptroller means the Comptroller of New York State.

(11) Construction means the erection, building, acquisition, alteration, reconstruction, improvement, enlargement or extension of a project; the inspection and supervision thereof; and the engineering, architectural, legal, fiscal, and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other actions necessary thereto.

(12) Corporation means the New York State Environmental Facilities Corporation, or its successor, unless otherwise indicated.

(13) Department means the New York State Department of Health.

(14) Design means necessary design calculations and decisions and the preparation of construction drawings and specifications.

(15) Direct financing means a financing made available from moneys in the DWSRF other than proceeds of the Corporation's bonds or notes.

(16) Direct interest rate means the rate of interest no higher than the market rate of interest.

(17) Disbursement means a transfer of DWSRF assistance moneys to a recipient from accounts held by the corporation's custodian in accordance with the executed PFA.

(18) DWSRF or fund means the New York State Drinking Water Revolving Fund, established pursuant to chapter 413 of the Laws of 1996. Such fund shall include, without limitation, moneys available to finance state assistance payments in the manner set forth in paragraphs (d), (f) and (h) of subdivision four of section 1285-m of the PAL.

(19) DWSRF assistance means any financial assistance from the DWSRF provided by the corporation to a recipient for an eligible project, including, without limitation, a financing, including additional subsidization, or hardship assistance. It has the same meaning as "financial assistance to recipients" as set forth under Section 1285-m.4 of the PAL.

(20) Eligible project means a project for construction of a water supply facility which is intended to improve drinking water facilities, or which implements green infrastructure, water or energy efficiency improvements or other environmentally innovative activities, or other activities permitted by the act, including a project that would be eligible for financing under or designed to comply with the requirements of the Act, which the Commissioner has certified, in writing, is an eligible project as set forth in PHL section 1160.

(21) Engineering report means the document or documents incorporating the results of preliminary project planning and technical and fiscal studies to determine the technical and economic feasibility of the project.

(22) Equivalency project means a 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) Federal capitalization funds are funds deposited in the DWSRF pursuant to a Federal capitalization grant according to the provisions of the act or any lesser amount which the administrator shall determine is subject to the limitations imposed by the act.

(24) Financing means a loan, a purchase of debt obligations or other financing for an eligible project.

(25) Hardship assistance means DWSRF assistance, as may be authorized by law, including, without limitation, a reduced interest rate financing, forgiveness of principal or a principal subsidy, a grant and/or State assistance payments, provided by the corporation to a recipient in those instances where the corporation, in its discretion, determines financial hardship exists.

(26) Intended use plan (IUP) means a plan identifying the intended uses of the amounts available in the DWSRF, 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 DWSRF; information on the activities to be supported including a description of project categories, terms of DWSRF assistance, 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.

(27) Interest rate subsidy means the amount of moneys of the fund credited to the recipient to reduce the interest which the recipient would otherwise be required to pay, as determined by the corporation.

(28) Leveraged financing means a financing, including those secured by the DWSRF, made with DWSRF assistance that is made available from the proceeds of bonds or notes of the corporation.

(29) Long-term financing means a financing other than a short-term financing.

(30) Market rate of interest means the interest rate obtained on the most recent sale of bonds or notes by the corporation for a DWSRF 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.

(31) Median household income (MHI) means the MHI published by the U.S. Department of Commerce Bureau of the Census, as it shall be adjusted to the most recent biennium for which income data is available. For special districts and other areas for which accurate census data is not available, other income data may be considered by the corporation.

(32) Municipality means any county, city, town, village, district corporation, county or town improvement district, school district, Indian nation or tribe recognized by the State or the United States with a reservation wholly or partly within the boundaries of New York State, any public benefit corporation or public authority established pursuant to the laws of New York, any sewer authority now existing in a city, or any agency of New York State which is empowered to construct and operate an eligible project, or any two or more of the foregoing which are acting jointly in connection with an eligible project.

(33) 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.

(34) Principal subsidy means a payment by the corporation of up to 75 percent of the principal of a financing made by the corporation to a recipient or a bond purchased by the corporation from a recipient under the DWSRF, such payment to be made pursuant to, and in accordance with, section 1285-m.4(g) of the PAL.

(35) Program obligations shall mean bonds, notes or other obligations issued by eligible entities to fund projects eligible for assistance under the DWSRF bearing interest at a market rate of interest.

(36) Project means a water supply facility or a facility or site for the supply, control, treatment or distribution of water, including but not limited to water transmission lines, pumping stations, reservoirs, dams and other impoundments, and all of the necessary appurtenances, and any other property, real or personal, functionally related and subordinate to said facility, for the purpose of providing a public water supply, or which implements green infrastructure, water or energy efficiency improvements or other environmentally innovative activities, or other activities permitted by the act. A project may include an eligible project.

(37) Project completion means the later of:

(i) the date that operation of the project is initiated or is capable of being initiated; or

(ii) the date on which all construction or other activities for which allowable costs have been incurred, and for which DWSRF assistance has been provided, have been completed.

(38) Project financing agreement (PFA) means an agreement, or agreements, between the corporation and one or more recipients 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 from time to time.

(39) Public Authorities Law (PAL) means chapter 43-A of the Consolidated Laws of New York State entitled the Public Authorities Law.

(40) Public Health Law (PHL) means chapter 45 of the Consolidated Laws of New York State entitled the Public Health Law.

(41) Public water supply means any water system as defined in 10 NYCRR Part 5, Subpart 5-1, section 5-1.1, Public water systems.

(42) Recipient means any municipality, public utility, or person, including any individual, firm, partnership, association, not-for-profit corporation or other corporation organized and existing under the laws of the State or any other state which is empowered to construct and operate an eligible project, or any two or more of the foregoing which are acting jointly in connection with an eligible project.

(43) 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.

(44) Segment of a project means one or more construction contracts and associated costs that the corporation and the department determine constitute a discrete portion of the project which may be financed and constructed separately from other project segments.

(45) Service charge means the total annual cost of service for a household or equivalent dwelling unit in the area served by the project, which includes a user charge, a charge for debt service, and all other annualized charges.

(46) 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.

(47) State means the State of New York.

(48) State assistance payment means a payment by the corporation to a recipient of all or a part of the State share of the cost of an eligible project from moneys available therefore, pursuant to, and in accordance with, section 1285-m.4(h) of the PAL.

(49) 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.

(50) User charge means a charge levied on users of a project, or that portion of the ad valorem taxes paid by a user, for the user's proportionate share of the cost of operation and maintenance (including replacement) of such project.

(51) User charge system means a system for apportioning user charges.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 2604.2