N.Y. Comp. Codes R. & Regs. tit. 6 § 649.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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.

(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.

(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. Linked deposits shall not constitute an allocation hereunder.

(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.

(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.

(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; 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.

(9) Commissioner means the commissioner of the department.

(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.

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

(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.

(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.

(14) Corporation means the New York State Environmental Facilities Corporation.

(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.

(16) Department means the Department of Environmental Conservation of New York State.

(17) Design includes, but is not limited to, necessary design calculations, selection of equipment and the preparation of construction drawings, specifications and contract documents.

(18) Direct financing means financing made available from moneys in the CWSRF other than from proceeds of the corporation's bonds or notes.

(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.

(20) ECL means chapter 43-B of the Consolidated Laws of New York State, entitled the Environmental Conservation Law.

(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.

(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.

(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.

(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.

(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.

(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.

(27) Federal capitalization funds means 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.

(28) Financing means a loan, a purchase of debt obligations or other financing.

(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.

(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.

(31) 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.

(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.

(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.

(34) Lender means any State or federally-chartered savings bank, savings and loan association, Federal savings bank, Federal savings and loan association, farm credit system institution, or commercial bank or trust company approved by the corporation to accept linked deposits.

(35) Leveraged financing means a financing, including those secured by the CWSRF, made with CWSRF assistance that is made available through the issuance of bonds or notes of the corporation, and shall not include any direct financing.

(36) Linked deposit means financial assistance undertaken by the corporation for the construction of an eligible project through an investment eligible to be held by an eligible lender.

(37) Linked deposit interest rate means a fixed rate of interest which is below the rate of interest for comparable investments in effect at the time the investment is made.

(38) Linked deposit spread means the difference between linked deposit interest rate and the rate of interest for comparable investments available from the lender in effect at the time the investment is made.

(39) Linked loan means a loan for purposes of an eligible project, in an amount equal to a linked deposit and bearing interest at the linked loan interest rate.

(40) Linked loan borrower means a borrower eligible to receive CWSRF assistance in the form of a linked loan.

(41) Linked loan interest rate means a fixed rate below the fixed interest rate the lender would have charged for the loan in the absence of a linked deposit based on its usual credit considerations and shall be calculated by deducting the linked deposit spread from the rate the lender would have charged in the absence of the linked deposit.

(42) Linked loan project means the program for providing CWSRF assistance in the form of linked deposits for the implementation of a management plan established under section 319 of the Federal Water Pollution Control Act related to agricultural operations, the upgrade or replacement of residential and small business on-site wastewater treatment systems with a system approved by the State or local Department of Health, or the abandonment of residential and small business on-site wastewater treatment systems and connection to a sewer, when a sewer becomes available, or another project as may be approved by the corporation and permitted by applicable law.

(43) Linked loan recipient means any person which is:

(i) an individual or small business which is eligible to undertake an eligible project related to residential and small business on-site wastewater treatment systems; or

(ii) an entity receiving or eligible to receive an agricultural assessment pursuant to article 25-AA of the Agriculture and Markets Law which is eligible to undertake an eligible project; or

(iii) any two or more of the foregoing which are acting jointly in connection with an eligible project; or

(iv) another recipient as may be approved and permitted by applicable law.

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

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

(46) 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.

(47) 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.

(48) 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.

(49) 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.

(50) Pooled financing means the sale of bonds by the corporation to provide CWSRF assistance to two or more recipients.

(51) 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, provided such activities are eligible for financing under the act, for which all required Federal and State permits have been, 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 finance 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.

(52) 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.

(53) 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 649.13 of this Part, pursuant to section 17-1909(2) of the ECL.

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

(55) 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.

(56) 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.

(57) Residential and small business on-site wastewater treatment system means a system serving a residence or small business that provides for the treatment and/or disposition of the combination of human and sanitary waste with water not exceeding 1,000 gallons per day.

(58) Small business means any business which is resident in this State, independently owned and operated, not dominant in its field, and employing not more than 100 individuals.

(59) 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.

(60) 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.

(61) 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.

(62) State means the State of New York.

(63) State Act means chapter 565 of the Laws of 1989, as amended and as may be amended.

(64) 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.

(65) Treatment works project means any type of project described in section 212(2) of the act.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 649.2